The HO view is that Eind is still a relevent factor however BC must still exercise a treaty right in order for the Directive to apply by anology.
I can confirm that the Home Office does not hold any recorded information about any decision to reverse any previous approach relating to the Eind judgment.The approach has always been consistent and it was only for the most recent regulations changes that this was clarified.
By way of explanation, in paragraph 39 of Eind, the CJEU emphasised that “That right [to return without being made to be economically active] remains subject to the conditions laid down in Article 10(1)(a) of Regulation (EEC) No 1612/68, which apply by analogy.”
Paragraph 61 of the CJEU cases of O and S(C-456/12 and C-457/12) reaffirmed the application of Regulation 1612/68 and Directive 2004/38/EC (‘the Free Movement Directive’)“ by analogy” so our view is that, although Eind prevents Member States from requiring returning nationals to be exercising a particular type of Treaty right, the Union citizen must still exercise a Treaty right for the Directive to apply by analogy.
https://www.whatdotheyknow.com/request/ ... sthrough=1
I agree, it would be interested to hear from others who have appealed sucessfully or unsucessfully on the basis of Eind still being relevent.
I will share my exerience. When my Mrs application for an RC was refused last year, HO also refused on the basis that I BC was not a qualified person on return even though I had provided the evidence with the application. The FTT judge ruled that it was unlawful to ask for that information in light of Eind and UTT judgment Surinder Singh Spouse Morocco. HO did not appeal further.
