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Reference: FS50586304

Freedom of Information Act 2000 (FOIA)


Decision notice
Date:

27 July 2015

Public Authority:
Address:

Home Office
2 Marsham Street
London
SW1P 4DF

Complainant:
Address:

Britcits
britcits@gmail.com

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.

4.

Respond to the request.

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.

Reference: FS50586304

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
2

Reference: FS50586304

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.

Reference: FS50586304

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: GRC@hmcts.gsi.gov.uk
Website: http://www.justice.gov.uk/tribunals/general-regulatorychamber
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 - Re: Your Enquiry

1 of 3

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

Gmail
Brit Cits <britcits@gmail.com>

Re: Your Enquiry


1 message
Free Movement Policy Enquiries
<EuropeanOperational@homeoffice.gsi.gov.uk>
To: "britcits@gmail.com" <britcits@gmail.com>

17 September 2015
at 14:10

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.

23/09/2015 11:53

Gmail - Re: Your Enquiry

2 of 3

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

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

23/09/2015 11:53

Gmail - Re: Your Enquiry

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

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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23/09/2015 11:53