Below on the next page is a cover letter for EEA Family ...



Explanatory note

Find below on the last two pages, a template for a cover letter to be used by the British sponsor for Code 1A / EEA Family Permit / EEA2 applications or appeals under Surinder Singh. This letter incorporates a recent important EU case law, O v Netherlands, which you can choose to include if you wish. Remove any bits from the letter that don’t apply to you and add info that you think would be relevant. It is your choice to use this letter or not based on your own judgement, as mentioning the case law may or may not antagonise UKVI decision-makers. The case law the letter refers to is here: . You can print out the case law and include it with your application/appeal if you wish. This case law was made on 12 March 2014 and it effectively blows the UK’s ‘centre of life’ rules out of the water.

However, please note that the UK as yet has not amended its regulations to incorporate this new case law. This case law won’t have effect on the decision-making of UKVI caseworkers until the UK amends its rules. This case law ONLY has effect in Appeal courts, as immigration judges there have to apply EU law above national law. Obviously it would be much less stressful and best if you can comply with UK regulations as much as is practically feasible and avoid going to court. To qualify for return to the UK with your non-EU family member, the current UK regulations stipulate that in the host EU country the British sponsor must have 1) been working/self-employed 2) married or in a registered partnership with his non-EU partner and 3) transferred his centre of life.

In summary, O v Netherlands case law rules that ‘genuine residence’ of over 3 months living together with your family member in your host State can be sufficient to trigger a right of return for your family member to your home state. ‘Genuine residence’ simply means residing in accordance with Article 7 of Directive 2004/38, so you must be working, self-employed, self-sufficient or studying. Once you have established 'genuine residence' in your host State with your family member, the conditions for granting family reunification rights to a returning citizen should not be stricter than those provided for by Directive 2004/38 for a citizen in his host State exercising Treaty rights under Article 7.

Other case laws

Below are some other case laws that you could incorporate into the cover letter if you think they would help but do NOT include them if they are not relevant. Most of the case laws below would ONLY be relevant in an appeal.

Definition of a ‘worker’

UKVI caseworkers sometimes reject applications by claiming that the amount of work/earnings that a British sponsor achieved was inadequate. However, under EU law you must always be considered a ‘worker’ if your work is ‘genuine and effective’, and as a worker you are entitled to the full range of EU freedoms and rights. Here are a few case laws to counteract claims of not being a ‘worker’:

• ‘Worker’ has a Community meaning and overrides national legal definitions (Case 75/63 Hoekstra).

• The rights of free movement of workers applies regardless of the worker's purpose in taking up employment abroad (Case 53/81 Levin).

• Any person who pursues an activity which is genuine and effective, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is to be treated as a worker. The essential characteristic of the employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. Community law does not impose any additional conditions for a person to be classifiable as a worker (Case 197/86 Brown).

• Benefits in kind, for example board and lodgings, can be considered as remuneration (C-456/02 Trojani).

• 10 hours per week of work is genuine and effective activity (Case C-444/93 Megner and Scheffel at para 18), and so is 12 hours (Case C-139/85 Kempf).

• 10 weeks of work is genuine and effective activity (Case C-413/01 Ninni-Orasche).

• Short duration of employment, low productivity, small number of hours per week and limited remuneration cannot prevent an EU citizen from being considered a worker as long as his activity is genuine and effective (Case C-3/90 Bernini).

• No account should be taken of the short-term nature of the employment in relation to the total duration of residence by the person concerned in the host Member State (Case C-413/01 Ninni-Orasche).

• The Court has held that when carrying out an assessment of who is a worker, factors relating to the conduct of the person concerned before and after the period of employment are not relevant (Case C-413/01 Ninni-Orasche). It is also immaterial whether or not the individual concerned had been a worker in the Member State in which he resided previously (Case C-357/89 Raulin at para 19).

• Earnings below the minimum required for subsistence does not prevent a person from being considered a worker as long as his work is genuine and effective (Case 53/81 Levin), even if he receives top-up benefits (Case C-139/85 Kempf at para 14).

• A waitress on a zero-hour contract for 8 months, who had only worked on-call for a total of 60 hours during the entire period, was still held by the Court of Justice to be entitled to worker status (Case C-357/89 Raulin).

• Trainees (Case C-109/04 Kranemann) and au pairs (Case C-294/06 Payir and Others) fall within the EU definition of worker if their activity is effective and genuine.

• People who perform genuine and effective work for the commercial arm of a religious community in return for material support from that community can be regarded as workers (Case 196/87 Steymann).

• A researcher preparing a doctoral thesis on the basis of a grant contract, must also be regarded as a worker according to Union law, if his activities are performed for a certain period of time under the direction of an institute forming part of an organisation operating in the public interest and he receives remuneration, in return for those activities (Case C-94/07 Raccanelli).

• In a case of a man, who as part of a social reintegration programme, worked 30 hours per week for the Salvation Army in return for board, lodgings and pocket money, the Court indicated that, on the information available to it, the constituent elements of an employment relationship had been established. However, it was ultimately left to the national court, which had access to all the relevant facts, to determine whether the work was ‘real and genuine’. The test to be applied was whether the services performed by Mr Trojani were capable of being regarded as forming part of the normal labour market (Case C-456/02 Trojani).

• A Union citizen who is no longer working or self-employed shall retain the status of worker or self-employed person in the following circumstances: (a) he is temporarily unable to work as the result of an illness or accident; (b) he is involuntarily unemployed after working for more than 1 year and has registered as a job-seeker with the relevant employment office; (c) he is involuntarily unemployed after completing a fixed-term contract of less than 1 year or he is involuntarily unemployed during the first 12 months and has registered as a jobseeker with the relevant employment office - in this case the status of worker shall be retained for no less than 6 months; (d) he embarks on vocational training, however unless he is involuntarily unemployed the retention of the status of worker shall require the training to be related to the previous employment (Article 7(3)(a) of Directive 2004/38).

Abuse

The ‘centre of life’ rules were adopted as a result of the COM (2009) 313 final guidance from the European Commission to Member States, where they stated that it could be a form of ‘abuse’ to do the Surinder Singh route solely to evade national immigration laws. Below are a few case laws to counteract accusations of abuse. These case laws may be useful in further-appeal letters to higher courts in case the Home Office argues ‘abuse’ against you in the court of first instance:

• The burden of proof lies on the authorities of the Member States seeking to restrict rights under the Directive. On appeal, it is for the national courts to verify the existence of abuse in individual cases, evidence of which must be adduced in accordance with the rules of national law, provided that the effectiveness of Community law is not thereby undermined (Cases C-110/99 Emsland-Stärke at para 54 and C-215/03 Oulane at para 56).

• The mere fact that a person consciously places himself in a situation conferring a free movement right does not in itself constitute a sufficient basis for assuming that there is abuse (Case C-212/97 Centros at para 27), regardless of the purpose of their move to that State (Cases C-109/01 Akrich at para 55).

• The EU Court of Justice has consistently held that the motives which may have prompted a citizen to move to another member state are irrelevant for the purposes of determining whether a person benefits from EU rights to free movement (Case 53/81 Levin at para 23, Case C-109/01 Akrich at para 55, and Case C-46/12 L.N. at para 47).

• Once the EU citizen has demonstrated that he or she has engaged in genuine and effective economic activity in another EU member state, the EU Court of Justice has confirmed that the motives which may have prompted a worker of a Member State to seek employment in another Member State are of no account and must not be taken into consideration (Case C-46/12 L.N. at para 47).

• The motive is irrelevant in assessing the legal situation of the couple at the time of their return to the Member State of which the EU worker is a national. Such conduct cannot constitute an abuse within the meaning of paragraph 24 of the Surinder Singh judgment even if the non-EU spouse did not, at the time when the couple installed itself in another Member State, have a right to remain in the Member State of which the EU worker is a national (Case C-109/01 Akrich at para 56).

[insert your address]

Telephone: [insert your telephone number]

Email: [insert your email address]

[insert today’s date]

Your ref: [insert their reference number if there is one]

Dear Sir/Madam,

IN SUPPORT OF MY FAMILY MEMBER’S APPLICATION/APPEAL FOR CODE 1A / EEA FAMILY PERMIT / EEA2

I am the British spouse/parent/child of [insert name] as evidenced by (our marriage certificate) / (his/her/my birth certificate), and I am writing in support of his/her application/appeal for an Code 1A/EEA Family Permit/EEA2. We have/had been residing in [insert host country] where I worked, and now wish to return to the UK to reside there under Regulation 9 of the Immigration (EEA) Regulations 2006 (because [insert a genuine compelling reason only if you have one, such as business failure, UK family illness or UK job offer]).

I qualify under Regulation 9 because during my residence in [insert host country] I (have/had worked x hours per week/full-time for x months) / (have/had been self-employed for x months). As evidence, please find enclosed my [insert a list of your evidence, such as work contract, payslips showing you paid income tax and bank statements showing your wages]. If this applies to you, write: Since I have/had worked on average more than 10 hours a week and for more than 10 weeks, under EU case law my work is/was genuine and effective (Case C-444/93 Megner and Scheffel and Case C-413/01 Ninni-Orasche). I have/had lived in my host country with my spouse/parent/child for x months, and as evidence please find enclosed my [insert a list of your evidence, such as tenancy agreement, landlord’s letter and utility bills in your names]. My centre of life was transferred to my host country because I lived and worked there, my family lived there with me, and I have/had integrated into life there. You can see this from my evidence of employment and residence, and from my evidence of integration such as [insert a list of your evidence, such as the Residence Card of your non-EU family member, gym membership, medical cards, car insurance, receipt for language lessons and proof of your children’s school enrolment]. If it applies to you, also write: In order to establish our principal residence my spouse/parent/child applied for a Residence Card in accordance with local regulations and he/she was issued with a temporary/5-year Residence Card, [insert name of card, for example Stamp 4, Recipisse and Tarjeta de Residencia de Familiar de Ciudadano de la Unión]. For EEA2 applicants: I reside in the UK now with my spouse/parent/child and as evidence please find enclosed [insert a list of your evidence, such as landlord or parents’ letter, tenancy agreement and utility bills in your names)

If you wish to include the O v Netherlands case law, it is your choice to write: Please also find enclosed a copy of a recent EU case law (Case C-456/12 O v Netherlands) made on 12 March 2014. Under this new case law, I qualify for a right of return to the UK with my spouse/parent/child because I have had residence in my host EU country for over 3 months in accordance with Article 7 of Directive 2004/38 (i.e. working, self-employed, self-sufficient or studying), and during that residence my spouse/parent/child and I have/had lived together. There cannot be any additional conditions for an EU citizen’s return to his country with his family members other than that he had been working, self-employed, self-sufficient or studying in his host EU country for over 3 months, and that his family members had been living with him during that time. Stricter criteria cannot be applied when assessing an EU citizen’s right to family reunification upon return to his country than the criteria for family reunification in his host country. Under Article 7 of Directive 2004/38, EU citizens have the right of residence with their family members in their host EU country after 3 months if they are working, self-employed, self-sufficient, or studying, so that is the criteria that must be applied when assessing my right to family reunification upon my return to the UK, and legally the only criteria under this new law.

If this applies to you, write: My spouse/parent/child has a 5-year Residence Card from [insert host country], which provides a presumption that I met the conditions of Article 7 of Directive 2004/38 in my host EU country (Case C-325/09 Dias). Under the new O v Netherlands case law, residence in the host country under Article 7 qualifies an EU sponsor to return to his home country with his family member.

However, it must be stressed that I do also qualify for family reunification under the UK's 'centre of life' rules nonetheless, but strictly-speaking the UK's 'centre of life' requirements are now not legally permissible under this new case law. The UK government will have to in time amend these rules to be in line with EU law. If this applies to you, write: If for whatever unlikely reason my spouse/parent/child's application is rejected under 'centre of life' rules and goes to appeal, the Asylum and Immigration Tribunal by law has to apply EU law above national law, and so will inevitably strike down any rejection based upon 'centre of life' rules.

Colin Yeo, a top immigration barrister in the UK has written a blog post about this new EU case law and can confirm that everything that I have written in my letter about this new law is correct:

If this applies to you, write: If there are any minor errors or omissions on documents submitted with this application, please contact us for clarification or to request missing documents/and or information. You can contact us at [insert contact details]. Thank you.

Yours faithfully,

[insert signature]

[print name]

Supporting documents

For example:

1. Passport of applicant

2. Passport of British citizen

3. Marriage certificate/Birth certificate

4. Work contract

5. Payslips

6. Bank statements

7. Tenancy agreement (or whatever you have for this)

8. Utility bills and then add anything else you have to prove residency - don’t go overboard just enough to establish you lived in your host country

9. Temporary/5-year Residence Card (or whatever yours is) (if in passport then say so here)

10. Gym membership

11. Car insurance

12. Proof of UK residence (EEA2 applicants only)

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