FOI request on McCarthy

Reference: FS50586304

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Freedom of Information Act 2000 (FOIA)

Decision notice

Date: 27 July 2015

Public Authority: Home Office

Address: 2 Marsham Street

London

SW1P 4DF

Complainant: Britcits

Address: [email protected]

Decision (including any steps ordered)

1. The complainant requested information relating to immigration. The

Home Office failed to respond to this request.

2. The Commissioners decision is that the Home Office breached sections 1(1) and 10(1) of the FOIA in failing to respond and it is now required to provide a response.

3. The Commissioner requires the Home Office to take the following steps to ensure compliance with the legislation.

Respond to the request.

4. The Home Office must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the

Commissioner making written certification of this fact to the High Court pursuant to section 54 of the FOIA and may be dealt with as a contempt

of court.


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Request and response

5. On 18 March 2015 the complainant wrote to the Home Office and

requested information in the following terms:

Please clarify whether by the above it is meant that in practice family members of British citizens, holding an Article 10 Residence Card issued by an EEA Member State other than Switzerland, are thus still

required to obtain a UK Family Permit or UK visa, even where the travel is with or to join their sponsor (British).

Specifically, is the Home Office then interpreting the McCarthy

judgment as not applying to family members of British citizens, even

where the family member holds an Article 10 Residence Card purely because of their relationship with the British citizen who the issuing

Member State accepts has exercised their EU treaty rights?

If the answer to the above is yes, please explain why.

As a separate request, please let us know why UK has interpreted McCarthy to not apply to those holding a Swiss Residence Card.

6. By the date of this decision notice the Home Office had failed to respond to this request.

Scope of the case

7. The complainant contacted the Commissioner on 18 June 2015 to complain about the failure by the Home Office to respond to their

information request.

8. The ICO contacted the Home Office on 6 July 2015 and asked it to

respond to the complainants request within 10 working days. The Home Office did not respond.

Reasons for decision

Sections 1 and 10

9. Section 1(1) of the FOIA states that an individual who asks for information is entitled to be informed whether the information is held

and, if the information is held, to have that information communicated to them. Section 10(1) of the FOIA states that a public authority must


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respond to a request promptly and not later than the twentieth working day following the date of receipt.

10. In this case the Home Office has breached sections 1(1) and 10(1) by failing to respond substantively to the requests within 20 working days.

At paragraph 3 above the Home Office is now required to respond to the complainants requests in accordance with the FOIA.

Other matters

11. As well as issuing this notice, the Commissioner has made a separate

record of the delay by the Home Office in responding to the complainants requests. This issue may be revisited should evidence from other cases suggest that this is necessary.


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Right of appeal

12. Either party has the right to appeal against this decision notice to the

First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from:

First-tier Tribunal (Information Rights)

GRC & GRP Tribunals,

PO Box 9300,

LEICESTER,

LE1 8DJ

Tel: 0300 1234504

Fax: 0870 739 5836

Email: [email protected]

Website: http://www.justice.gov.uk/tribunals/general-regulatory-chamber

13. If you wish to appeal against a decision notice, you can obtain

information on how to appeal along with the relevant forms from the Information Tribunal website.

14. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent.

Signed

Jon Manners

Group Manager

Information Commissioners Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Gmail

Brit Cits

Re: Your Enquiry1 message

Free Movement Policy Enquiries

17 September 2015

at 14:10

To: "[email protected]"

Dear Sir/Madam,

Thank you for your request, which states as follows:

Please clarify whether by the above it is meant that in practice family members of

British citizens, holding an Article 10 Residence Card issued by an EEA Member State

other than Switzerland, are thus still required to obtain a UK Family Permit or UK visa,

even where the travel is with or to join their sponsor (British).

Specifically, is the Home Office then interpreting the McCarthy judgment as not

applying to family members of British citizens, even where the family member holds an

Article 10 Residence Card purely because of their relationship with the British citizen

who the issuing Member State accepts has exercised their EU treaty rights? If the

answer to the above is yes, please explain why.

As a separate request, please let us know why UK has interpreted McCarthy to not

apply to those holding a Swiss Residence Card.

Following the judgment of the Court of Justice of the European Union (CJEU) in the case

of McCarthy (C-202/13), the UK accepts valid, genuine residence cards issued by other

European Economic Area (EEA) Member States under Article 10 of the Free Movement

Directive (2004/38/EC), as evidence that the holder is exempt from the requirement to

hold an EEA family permit.

An Article 10 residence card is a document which is issued under the Directive by EEA

Member States to non-EEA family members of EEA nationals who are not nationals of

that Member States and who are exercising free movement rights under EU law. It is

important to note that documents issued on any other basis, for example documents

issued under the domestic law of another Member State, are not acceptable for this

purpose and do not exempt the holder from the requirement to obtain an EEA family

permit.

Gmail - Re: Your Enquiry https://mail.google.com/mail/u/0/?ui=2&ik=62b7ef7c5d&view=pt&q...

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Non-EEA nationals who hold a valid, genuine residence card issued under Article 10 may

present this document as evidence that they are exempt from the requirement to hold an

EEA family permit in order to accompany their EEA national family member to the UK, or

to join them here. This also applies to non-EEA family members of British citizens who

have been exercising Treaty rights in another Member State and who meet the

conditions in regulation 9 of the Immigration (EEA) Regulations 2006 (as amended).

In order to be admitted to the UK, the non-EEA national would need to demonstrate that

they have a right of admission under EU law. The presentation of an Article 10 residence

card does not on its own give the holder a right of admission, it simply exempts the

holder from the requirement to hold an EEA family permit. A person who presents such a

document must also demonstrate that:

they are the family member of the EEA national as claimed; and

they are accompanying the EEA national to the UK, or

they are joining the EEA national in the UK; and

the EEA national is residing in the UK in accordance with the

Immigration (European Economic Area) Regulations 2006 (as

amended), or will have a right of residence on entering the UK (where

they are travelling with the non-EEA family member).

Non-EEA family members of British citizens must also demonstrate that the conditions in

Regulation 9 are met in order to have a right of admission.

You have enquired as to whether residence cards issued by Switzerland also exempt a

person from the EEA family permit requirement. Residence cards issued by Switzerland

do not fall within the definition of a qualifying EEA residence card. Regulation 2(1) of the

EEA Regulations states:

(a) a valid document called a "Residence card of a family member of a Union

Citizen" issued under Article 10 of Council Directive 2004/38/EC (as applied,

where relevant, by the EEA Agreement) by an EEA State listed in

sub-paragraph (b) to a non-EEA family member of an EEA national as proof of

the holder's right of residence in that State;

(b) any EEA State, except Switzerland;

This is because Switzerland does not issue residence cards in line with Article 10 of the

Directive and therefore residence documentation issued by Switzerland is outside of the

scope of the judgment in McCarthy. Therefore, a document issued on the basis that the

holder is the family member of an EEA national who has exercised free movement rights


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in Switzerland does not exempt the holder from the requirement to hold an EEA family

permit before travelling to the UK.

I hope this clarifies the position for you.

R Murphy

Free Movement Team

Home Office

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FOI request on McCarthy

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Transcript of FOI request on McCarthy