5 Feb 2015 Your Europe Response to Form EEA(FM)

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Brit Cits

Fwd: FW: Subject: Your Europe Advice enquiry 163209

Brit Cits 5 February 2015 at 12:56

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Date: Thu, 5 Feb 2015 11:03:48 +0100

From: [email protected]

To: [email protected]

Subject: Subject: Your Europe Advice enquiry 163209

Dear Sir/Madam,

Please find below the reply to your enquiry. Please note that the advice given by Your Europe Advice is an independent advice

and cannot be considered to be the opinion of the European Commission, of any other EU institution or its staff nor will this advice

be binding upon the European Commission, any other EU or national institution.

You asked for a reply by phone, but it was impossible to reach you (either because we do not have correct phone number or

because there were 3 attempts to contact you at different moments within the deadline and you could not be reached).

Thank you Ms XXXXX for contacting Your Europe Advice.

We are sorry to hear of your difficulties.

Firstly as regards the documents which have not been returned to you, you need to immediately contact the British consulate or

visa processing agent and alert them to the fact that certain documents included in your application were not returned. You need

to be as specific as possible about what documents are missing and if possible include photocopies of the documents which are

missing. Your request needs to be sent in writing and followed-up with a complaint to UKVI at the address given here:

Secondly, when you apply for your husband s residence card, you need to ensure you submit a certified copy of your passports

and explain that you are retaining these to prove your identity when completing formalities such as looking for work and

accommodation. Your passport needs to be certified by the Post Office and your husband s passport will need to be certified by

his embassy in London. Also, make sure you send a full itemised list of all documents you are enclosing. You should make a

photocopy of the entire application form and supporting documents. The application should be sent by registered mail with

recorded delivery so as to have proof of correspondence.

You should know that Your Europe Advice is aware of the excessive formalities that the UK authorities impose on applicants for

residence documents, which we consider are not in keeping with the requirements of Directive 2004/38. It is clear that the

imposition of additional requirements on applicants which go beyond those specifically laid down by Article 10(2) of the Directive

represents reprehensible divergent administrative practices or interpretations constituting an undue obstacle to the exercise of the

right of residence within the meaning of recital 14 of the Directive.

Regrettably, it is a possibility that the new 123-page application form has in part been designed in order to dissuade EU

citizens and their family members from applying for a residence card.

You should also know that the European Commission is responsible for monitoring the application of all EU legislation by EU

countries. It is currently examining the progress made by member states in implementing Directive 2004/38. In some cases, it has

initiated infringement proceedings against the Member States who failed to implement the Directive or failed to communicate

details of implementing legislation.

See for example the Commission s proceedings against the UK concerning breaches of Directive 2004/38:

http://europa.eu/rapid/press-release_IP-12-417_en.htm

The European Parliament has also conducted an in-depth survey into the application of the Directive in all member states.

Members of the Your Europe Advice team participated in this endeavour and identified the issue you have raised as one of the

problems in implementation of the Directive in the UK. This report has been endorsed by a clear majority vote of MEP s in the

European Parliament. The motion passed by the EP addresses key recommendations to rectify problems such as the one you

have identified:

http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2009-0203&language=EN&ring=A6-2009-0186

As regards the evidence of integration requested under Section 9, please note the following.

In the Form EEA(FM), we understand that applicants are asked to provide details of the following evidence of integration:

Gmail - Fwd: FW: Subject: Your Europe Advice enquiry 163209 https://mail.google.com/mail/u/0/?ui=2&ik=62b7ef7c5d&view=pt&se...

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details of financial commitments in the EEA state (for example, mortgage, rental agreement, bank account, investments)

evidence of speaking the language of the EEA state

if you had any children or grandchildren living with you in the EEA state, details of any nursery/school/college/university they

attended

membership of any social groups or sports clubs, etc.

details of any community activities undertaken in the EEA state

However, the EU Court of Justice has recently adopted a judgment in Case C-456/12 O & B which casts doubt upon whether the

UK s transfer of the centre of life test is lawful.

In this case, the Court indicated that the only conditions needed for a person to rely on the Surinder Singh case are:

(1) genuine residence of an EU citizen in the member state; and

(2) during this residence the EU citizen created or strengthened his family life.

The Court recognised that the right to return home after exercising free movement in another Member State in accordance with

the Surinder Singh ruling applies to EU citizens who wish to bring non-EU family members to their home Member State must

have previously exercised the right of residence in another Member State for more than 3 months.

The right to return home applies to all categories of EU citizen and is not limited to workers or the self-employed but covers

students and self-sufficient persons (paras. 48-49). This means that, during their stay in another EU country, an EU citizen and

their family member must meet the conditions under Article 7 of Directive 2004/38 (residence over three months) or Article 16

(permanent residence) (para 56).

Although the citizenship Directive does not apply as such to the situation of a citizen returning home to their country, it does apply

by analogy as regards the family members of the EU citizen (para 50). The Court then explicitly confirmed that, when an EU

citizen returns home their family members will enjoy a derived right of residence based on Article 21(1) TFEU, the conditions

under which that derived right is granted should not, in principle, be more strict than those provided for by Directive 2004/38 for

the grant of such a right of residence to a third country national who is a family member of a Union citizen in a case where that

citizen has exercised his right of freedom of movement by becoming established in a Member State other than the Member State

of which he is a national.

What this means is that the transfer of the centre of life test as added to regulation 9 of the Immigration (EEA) Regulations 2006

from 1 January 2014 is not in line with the interpretation given to the Surinder Singh ruling by the Court of Justice in Case

C-456/12 (judgment of 12 March 2014).

The European Commission has recently confirmed that it shares our view:

http://www.freemovement.org.uk/wp-content/uploads/2014/08/EU-Commission-letter-anon.pdf

The UK authorities are under a duty to give effect to judgments of the Court of Justice of the European Union. We therefore

consider that regulation 9 of the Immigration (EEA) Regulations 2006 as amended in 2013 should be amended again to repeal

the following two conditions: (1) that the citizen must have worked or been self-employed in another EEA state and (2) that the

citizen must have transferred the centre of his life to that state. It is unclear when these changes will be brought in.

You therefore appear to have two options.

You can refuse to supply the information. However, this runs the risk of having your husband s application turned down and

having to contest the matter before the courts which can be costly and time-consuming.

Alternatively, you can comply with the request for information and submit what evidence you have.

However, you may wish to refrain from submitting any sensitive material in Section 5 such as documents relating to any medical

treatment received. Instead, you may want to enclose documents attesting to having been registered with the Irish medical

system such as the medical card mentioned here: http://www.citizensinformation.ie/en/health/entitlement_to_health_

services/medical_card.html

As for evidence of keeping in touch with your spouse, you may want to include non-sensitive materials such as documents

showing you lived at the same address or travel records showing that you visited each other frequently.

In the event that this does not resolve the issue, you should feel free to contact us again so we can advise you further.

We hope this answers your query.

We remain at your disposal, should you require further information.

To submit another enquiry, please visit Your Europe Advice, but do not reply to this e-mail.

If you simply require information about your Internal Market rights in general, we would invite you to consult the Your Europe

website which contains a wealth of detailed information about your rights and how to exercise them in each EU country. More

general information on the EU are available online on the Europe Direct website or via the free phone service at 00800 6 7 8 9 10

11.

Your original enquiry was:


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I have just moved back to the UK with my husband (Non-EEA citizen) after living and working in Ireland, exercising treaty rights.

In order to move back to the UK the UKVI required us to first apply for an entry/residence visa in the form of a Family Permit and

in the process we submitted extensive evidence of us living there together, working there, my husband's Irish residence card etc.

The Family Permit is valid for 6 months only and we expected to need to submit an application for the UK Residence Card along

with both passports and our marriage certificate, the fee of 55 pounds and that is all. Today we see that the UK residence permit

application form increased from 35 pages long to 129 pages long and there are specific sections that refer to Surinder Singh

Case law. Among the evidence asked for in cases such as ours repeats that already submitted for the Family Permit (some of

which evidence the UKVI has not returned to us) and they ask for additional evidence including some that I feel is an invasion of

privacy and others that are unrealistic.

I refer to the form in the following link : https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/399693/

EEA_FM__01-15.pdf

At the end of the document is a section detailing which documentary evidence to submit.

Section 5 - your spouse includes:

"Letters or other documents from your GP, a hospital or other local health service about medical treatments, appointments, home

visits or other medical matters"

"Evidence of how you have kept in contact... for example, letters, printouts of emails or contact via social media...skype printouts

(or similar) logs, etc"

Section 9 - Surinder Singh includes:

"Letters from your sponsor's employer confirming the job title, dates they worked for them, hours they normally worked,

salary/wage, and reason for leaving."

also "Integration in to the EEA state" including:

"Evidence of any financial commitments in the EEA state - eg mortgage agreement, bank loans etc"

"Evidence of speaking or learning the language of the EEA state - proof of language classes."

"If you had any children attending school or college.."

"Evidence of membership of any social or community groups."

In particular I want to ask if the UKVI can legally request (or re-request) evidence that has been already satisfied once through

issue of the Family Permit.

Is the nature of the questions and evidence they ask for beyond what should be asked for in freedom of movement with a

non-EEA spouse?

If so, would we be within our rights on these points to refer the UKVI back to the original Family Permit application and simply

state NA under EEA regulation. Article 30. in Directive 2004/3"?

I don't see why we should be asked to submit evidence twice or submit more evidence.

Yours sincerely,

Your Europe Advice


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5 Feb 2015 Your Europe Response to Form EEA(FM)

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