Many years before his appointment to the Supreme Court, Jonathan Sumption remarked that

“most law is only common sense with knobs on… everyone knows what the answer is likely to be”.

He clearly wasn’t talking about European Union law. After years of being fed on mantras of a single market without “internal frontiers”, common sense dictates that UKBA’s recently introduced application fees of £55 per applicant for most EEA residence documents should have no footing in EC law. Alas, not quite so.

The Legal Basis

UKBA’s fees find their legal basis in Article 25(2) of the Citizens’ Directive (Directive 2004/38/EC), which is transposed into UK law via regulation 16, 17, 18 and 18A of the Immigration (European Economic Area) Regulations (SI 2006/1003) as amended by regulation 2 of the Immigration (European Economic Area) (Amendment) Regulations 2013 (SI 2013/1391). Article 25(2) is part of the ‘General provisions concerning residence documents’ and provides that all EEA registration certificates, residence cards and permanent residence cards:

“shall be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents”.

Thus, fees for EEA residence documents are lawful as long as the level of fee does not exceed the level imposed on domestic nationals for similar documents. In the absence of UK ID cards, our only domestic comparator is a UK passport. At present a standard adult UK passport costs £72.50. A standard UK child passport (under 16) costs £46.00. On the basis of this comparator, it would be difficult to argue that UKBA’s EEA residence document fee of £55 per application exceeds the fees imposed on domestic nationals for similar documents.

Whether the UK passport is a valid comparator is open to question, though. A British citizen only needs a passport for travel, so it is not an essential document as such. It is not needed for access to the NHS, for proving status for the purpose of employment and so on. Are EEA residence documents also inessential for purposes other than travel?

Rights not Privileges

In examining the lawfulness of the EEA application fees it is also important to remember that migration under the EEA provisions is exercised by virtue of an inherent right rather than a privilege dependent on a residence document. This position is reflected in Article 25(1) of the Citizens’ Directive, which provides:

“Possession of a registration certificate…. of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.”

In essence, Article 25(1) makes possession of an EEA residence document de facto voluntary: an individual may exercise free movement rights without an EEA residence document provided the EEA right can be attested by another means. In theory this is all very well. Realistically, many EEA nationals and family members find that the residence documentation is essential to exercise their most basic rights (e.g. gaining employment) – a fact which UKBA arguably indirectly acknowledge. Furthermore, under Government proposals, this documentation will be virtually indispensable for EEA family members to secure rented accommodation (see page p.18 of the consultation document).

Arguably, then, it is not right to compare essential EEA residence documentation with an inessential British passport. In the UK, unlike other EU states with identity cards, perhaps there is no comparator. The fees would therefore be discriminatory and unlawful.

A Disjointed Internal Market

Although fees for EEA residence documents have a legal footing within the Citizens’ Directive, one can hardly say these fees contribute to a harmonious internal market. One concern is differing fee levels across EEA countries. Austria, for example, appears to only charge €15 per EEA residence document application. In comparison, UKBA’s £55 per applicant seems quite high. While differing rates are unlikely to influence migration decisions, it is submitted that divergent fees do not accord with the goals to “simplify” and “strengthen” the right to free movement as set out in the preamble of the Citizens’ Directive.