Retyped from paper copy
Home Office UK Border Agency
European Operational Policy
Permanent Migration
North West Region
12th floor St Anne House
20-26 Wellesley Rd
Croydon
Surrey
CR9 2HL
(FOI) Home Office Reference: 17722
7th March 2011
Dear …
Thank you for your email of 13 February 2011 where you have requested reports, papers, internal guidance and correspondence illustrating how the UK Border Agency has implemented the European Court of Justice (ECJ) decision in the case of Eind (C-291/05).
It may be helpful to briefly outline the background to the Eind case and what the European court confirmed in its judgment. The case concerned a Dutch national who came to the United Kingdom in 2000 where he subsequently exercised his Treaty rights as a worker. He was then joined by his third country national daughter. A year later, he applied for and was issued a residence permit confirming his right to reside here as a worker under European law. His daughter was issued a residence document on the basis that she was under 21 years of age and dependent upon her father. In October 2001 Mr Eind and his daughter returned to the Netherlands. In light of bad health, Mr Eind was unable to secure employment and instead relied on social assistance from the Dutch authorities. As a result of her father’s economic inactivity, the daughter’s application for a Dutch residence permit was refused by the Dutch authorities. Under their legislation, they required Dutch nationals who had worked in another Member state to continue to be economically active upon their return to the Netherlands in order for their accompanying family members to be issued European documentation.
The ECJ confirmed in its judgment that Mr Eind’s daughter, who had been living lawfully in the EU, had a right to enter the Netherlands even though her father was not economically active within his home state as a Dutch national.
As you will note from my recent correspondence to you in relation to the Surinder Singh judgment, the UK Border Agency already provides for family members of British nationals to return to the UK with the British national provided that certain criteria are met. These criteria are laid out in regulation 9 of the Immigration (European Economic Area) Regulations 2006. Regulation 9 requires the British national to have resided in an EEA state as a worker or self-employed person before returning to the UK and for the family member, if a spouse or civil partner, to have resided with the British National in the EEA state before the British national returned to the UK. There is nothing within Regulation 9 that requires a British national to continue to be economically active in the UK upon his/her return to the United Kingdom. As such, regulation 9 is compliant with the principles of the Eind judgment outlined above. Given that regulation 9 entered into force more than a year before the judgment in Eind, the British Government was already acting in accordance with the Court’s findings in that case. This meant that no subsequent amendments were required to regulation 9 in order to implement the Eind judgment. In light of the fact that no changes were actually required, this explains why there are no minutes, reports or papers that deal with the implementation point you have raised.
For the same reason there is nothing specific in the European Casework Instructions (ECIs) that relates to the implementation of the Eind judgment. Rather, the rights of family members of British citizens are dealt with by Chapters 1 and 5 of the ECIs as outlined in my previous correspondence. For completeness, I include the relevant links below.
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
If you are dissatisfied etc etc
Yours sincerely
…
Policy Manager
European Operational Policy
North West Region
UK Border Agency
