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The Home Office have announced that they plan to impose all sorts of new requirements on European Community law applications for documentation proving the right to residence. I’ve copied the press release into the post below in case it vanishes later.
These new requirements would without doubt be unlawful if implemented. There is no requirement in EC law even to use a particular type of application form, never mind sign it, provide ‘specified’ documents and so forth. For that matter, there isn’t even a requirement in domestic law to use a particular form or provide specified documents for EC law applications: application forms are prescribed by regulations for immigration applications under UK immigration law but there is no equivalent provision in either UK law or EC law for EC applications. And if the Home Office is planning to introduce a UK requirement for forms and specified documents to be used for EC applications, it is an additional interference with EC free movement rights not permitted under the Citizens’ Directive. The European Court of Justice would quickly strike it down.
This is all because EC law gives people rights if they meet certain requirements. For example, being married to an EC national working in the UK automatically gives one the right to reside in the UK with that EC national, subject only to very limited public interest provisions. The right is possessed whether or not the Home Office have issued the documents that prove the right. Indeed, as long as the relationship and that the EC national is working are proven by some means — and the Home Office is not allowed to limit the types of evidence that can be considered because there are no such requirements in the Citizens’ Directive — the Home Office has to issue the documentation proving that the applicants have the right in question.
I can only assume this is posturing by the Home Office. It seems highly unlikely that regulations prescribing forms and evidence will be introduced, and if their process for dealing with applications fails to give speedy effect and recognition to pre-existing EC free movement rights, the ECJ will have something to say about it.
Applying under European law – make sure your application is complete
22 May 2009The UK Border Agency is changing the way that it processes applications by European nationals and their families for registration certificates, residence cards, family member residence stamps or confirmation of permanent residence in the United Kingdom.
From 1 June 2009, we will check all applications as soon as we receive them. Unless you have completed the application form correctly and provided the necessary supporting evidence, we will not accept your application as valid under the Immigration (European Economic Area) Regulations 2006.
Applications submitted from families will be rejected in their entirety unless the necessary supporting evidence has been provided for all of the named applicants.
To make sure that your application is complete, you must:
– submit your application on the current appropriate application form;
– provide all the required photographs of yourself and any family members included in your application, as specified on the application form;
– provide all the original documents specified on the application form – each application form has a section entitled ‘Documents and photographs’, which lists all the supporting evidence that you must provide;
– complete all sections of the application form as required; and
– sign and date the declaration on the application form.
If you do not make your application in this way, with the correct supporting documentation, we will reject your application and return your application form to you.
If your passport is already with the Home Office, you must provide full details of this – including your Home Office reference number. If you do not provide these details, we will reject your application and return your application form to you as noted above.
For more information about these types of application, see the Applying under European law page.
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19 responses
This makes me chuckle nearly as much as the Border [Fa]rce program on tv where I witnessed the wonderful line ‘we’ll kick your door down if you don’t let us in’ (somehow I don’t think so). I’m going to fetch the popcorn and watch this one unfold. Anyone for Metock Mark II?
The main reason for this is to appeal to the UKIP/BNP supporters by being ‘tough’ on European regulations. It’ll end in tears. And to frame this in a more technical context: these measures are not at all proportionate, no other country needs or requires such ridiculous regulation. When the HO start obeying the ‘do it quickly’ part of the application they will be fully entitled to police things properly.
I accept that this might be wishful thinking on my part, and only time will tell if I am correct, but I suspect one of the reasons for the working change is for UKBA to issue the CoA …. Confirmation of Application letter …. much sooner than they do at present. After all the EU Directive states that this must be issued “immediately”, whereas at present the CoA is only being issued after many weeks.
If I am right about this, the change is to be welcomed.
You might well be right, John. If this is simply about turning applications around quicker, it is very good news. The press release suggests that there is more to it – but Home Office press releases aren’t exactly famed for their accuracy…
FM
Having read the HO press release in more detail I am becoming more agreable with your position.
With comments like “will be rejected in their entirety ” and
“To make sure that your application is complete, YOU MUST:” sounds a little too authoritarian to me.
The HO are only processing applications, and in accordance (or should be) with EU law. But you are all too familiar with HO disregard for rule of law.
This is a situation where the HO staff should be acting as “public servants” under Federal EU state law. This parallels the merger of Customs and Inland Revenue. People asked which of the original two the new HMRC would like. Similarly as HMRC was more like the unpleasant Customs, the EU department are just like the other civil servant departments.
The other aspect of this, and this is not a comment about the legality or otherwise of what UKBA plan to do, is that IF an application is going to get rejected because of insufficient documentation, it is far better that it is rejected soon after submission rather than months later. That way the applicant can attempt to put right what UKBA perceive to be wrong, and then promptly put it right and resubmit.
John
What you are suggesting is this is an improvement program for processing EU applications so that Residency Cards are issued more promptly.
This is not in the nature of the UKBA, nor is co-operation. “Improvement” is not stated as the goal in the press release either. It is also being done illegally, and at short notice from next Monday.
Germany, reknowned for its efficiency, knocks out residency cards in a week or two. Legally it has to be within six months.
My opinion is you have found a silver lining in a dark cloud.
Very cynical Mr T and I appreciate you may have reason to be so. However; the Agency is undergoing major change both culturally and in it’s application and consideration processes all of which are being implemented in order to improve our service (and reputation) to the public. the public demand better service and any changes that enable even the slightest improvement given the extremely limited resources we have are welcome. I hope you see an improvment in application processing / document issuing times and can sit back and actually say “wow, I never thought I’d see the day UKBA did something to improve service, but they have and it’s worked!” … although I’m happy to admit it’s a long shot, please give it and the agency and the people who work extremely hard to help applicants and provide a service to the public a chance, try to be happy and embrace change , you might even feel happier yourself for it.
APO
Thanks for your insight.
Cynical – or maybe a professional who is realistic.
Outside of EEC 2006 applications section, I have experienced no improvement in the FCO or the UKBA over the last several years.
With the EEC section, I do hope the improvements you refer to prove fruitful!
The best way forward in many areas is “evolution, not revolution”, a continuous improvements program based on small steps over time. I have so often seen revolutionary style improvements end in tears, as unforseen circumstances occur (sod’s law). eg IT upgrade, product development. The key to success is also in the quality of the staff.
Mr T, you are perfectly entitled to be pessimistic, as much as I am entitled to be optimistic. And now we are past 1st June the new system is in operation, and it will be interesting to read feedback as to how it is working in practice.
The fact is that UKBA have brought in the new system for a good reason. As they have said in a recent letter, about two-thirds of EEA applications were being received with little or no supporting evidence, and that was slowing up the whole process. So now they are doing a “front-end sift” of applications received in Liverpool, returning those perceived to be accompanied by insufficient evidence.
Surely a step in the right direction.
I’m with Mr T on this one. The press release doesn’t make it sound like an improvement in service, it sounds like they are turning it into a tick box exercise. Rather than looking at substance, as is required by EC law, they say they will examine form filling and whether certain documents are included. Any sensible applicant will include proof of the basis of application (e.g. a marriage certificate in a marriage case) and should be refused if they fail to do so. They should not be refused for failing to use the right form or failing to include documents that are not required under EC law.
I note they also say from December 2009 they would have cleared the backlog. Does anyone know what to do when EEA family members application has taken over 12 months. Also I now notice UKBA issue 2 styles of Certificate of Application, a long style (with information to potential employers) and a short style (acknowledging application), any significance?
B Nana, the performance of UKBA is really bad at the moment, and let me guess, you have either not complained at all, or have at least not complained regularly.
The fact is that UKBA is giving priority to those already over the 6 month mark (meaning UKBA is already in breach of the terms of the EU Directive) who are making a total nuisance of themselves, complaining extremely frequently, quite possibly daily.
Have you been in touch with SOLVIT yet? If not, you certainly need to do that. Get in touch with the SOLVIT for the EEA country that your EEA citizen is from, and they will get in touch with UKBA on your behalf.
Thanks John, would you kidly provide me with the details for SOLVIT. Yes we complained as usual but had no joy in the response. The employers insist that they only have to wait for six months, no more, and are not willing to employ and “illegal”.
Solvit can be contacted by going to http://ec.europa.eu/solvit/ . Go to the SOLVIT of the country of the EEA citizen.
Are you saying that you have been thrown out of work by your employer, because UKBA have breached the 6 month limit as laid down in the Directive? If so, do make it clear to UKBA that their breach of the Directive has caused you financial loss, and you will be taking legal action against them.
Quick update on this: the press release has, as predicted, been amended. It now accepts that the use of forms is not mandatory. The Home Office claims that the changes are all about speeding up the process and that the press release was ‘over zealous’.
eg
“submit your application in writing – applications by letter are acceptable, but we recommend that you complete the appropriate application form as this will guide you to provide all the information required;”
cf previously
“To make sure that your application is complete, you must – submit your application on the current appropriate application form;”
I will like to know if an extended family member of an EU national exercising treaty right in UK has any right of residence in UK and what are the prospect of a succesful eea2 application base on Aticle 3(2) if the applicant is not legally residence in UK.
I don’t mean to be flippant, but so would I. I’m sorry.
Joe,
I only read this now. Meanwhile you might have already found the answers to your queries. If not, check out the UKBA’s website/s which is comprehensive.
http://bia.homeoffice.gov.uk/eucitizens/rightsandresponsibilites/#header8
1) “Family” and “extended family members” are defined there as follows:
‘Your family
If you have a right to live the in the UK, your family may join you here. Your family is defined as:
?your spouse (husband or wife) or civil partner;
?any children or grandchildren of you, your spouse or your civil partner who are under 21 years of age or who are dependent on you; and
?the parents or grandparents of you, your spouse or your civil partner.
If you are a student, only your spouse, civil partner or dependent children are entitled to a right of residence.
Other relatives (including extended family members such as brothers, sisters and cousins) do not have an automatic right to live in the UK. To be considered, the extended family member must be able to demonstrate that they are dependent on you.
If you and your partner are not married or in a civil partnership, you must be able to show that you are in a durable relationship with each other.
Family members who are not EEA or Swiss nationals
If your family members are not EEA or Swiss nationals and they are coming to live with you permanently or on a long-term basis, they will need to apply for an EEA family permit before coming to the UK. The EEA family permit is similar to a visa and is issued by visa services. Your family members should apply for an EEA family permit at their nearest British diplomatic post.’
2) You mention form EEA2 which indicates you are referring to a Non-EU extended family member. (However, how your extended family member as defined above is likely to be of another nationality than yourself escapes me).
http://www.ukba.homeoffice.gov.uk/eucitizens/applyingundereuropeanlaw/
‘Residence cards are issued to EEA nationals’ family members who are not EEA nationals themselves. The card confirms the holder’s right of residence under European law.
…
If you want to apply for a residence card, you must complete application form EEA2. You can download the form from the right side of this page.’
EEA2 states:
‘4 WHEN TO APPLY
You may apply at any time during your lawful stay in the UK.
If you apply when you are here unlawfully, that will be taken
into consideration in deciding your application.’
In summary follows,
1) Extended family members such as brothers, sisters and cousins do not have an automatic right to live in the UK. To be considered, they must be able to demonstrate that they are dependent on you;
2) I don’t know which Article 3(2) you are referring to. The above cited UKBA website states that if the non-EU applicant is not resident in the UK they will need to apply for an EEA family permit before coming to the UK. Form EEA2 confirms this by stating your non-EU family can apply during their lawful stay in the UK.
In other words, if you plan for your (non-EU) extended family member – who must be dependent on you – and who is resident outside of the UK to visit you, they first must get a “Family Permit” from the UK Embassy or High Commission in their country of residence in order to be allowed to enter the UK. (This is valid for six months. During these six months they then can apply for a residence card by filling in form EEA2 and submitting the requested evidence).
The family permit process is fairly straight forward if you are able to find the relevant requirements on the respective High Commission’s website and also if you fullfil the requirements as their sponsor, i.e. financially etc and can document this. Same goes for the EEA2 application.
If you are unsure though about any of the requirements or forms I strongly recommend you take legal advice.
No responsibility is taken for the correctness of the above information.
Kind regards, Bix