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Issuance of UK Residence Cards in Compliance with the EU Directive 2004/38/EC

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This petition has now been lodged with the European Parliament and therefore closed on this site. Having perused it, and if you wish to still support it, please contact for a progress report and details of how you can still be of support. Many thanks to everyone who appended their signatures in support. INTRODUCTION This petition concerns the rights of residence for non EEA family members of qualified European citizens residing and working in the United Kingdom as stated under the European Directive 2004/38/EC. Family members of EU citizens should enjoy a range of freedoms and guaranteed legal status by virtue of the treaty rights exercised by their EU spouses; however, the number of signatories of this petition and cases documented clearly demonstrates that this is not the case. The signatories of this petition have been wronged in at least one way and have been hindered in their right of free movement. Therefore, the signatories request that the causes of infringements of the EU Directive are identified and addressed so that a consistent level of compliance to the EU Directive is achieved by the UKBA. SCOPE The violation of the Directive is found on a number of levels: In UK law [especially The Immigration (European Economic Area) Regulations 2006] In the incorrect implementation of these instructions, and THOSE AFFECTED BY THE NON-COMPLIANCE ARE: Family members of European citizens, Extended family members of European citizens (especially unmarried partners) and THE APPLICATIONS MOST AFFECTED ARE: EEA2 applications (UK Residence Cards) and EEA4 applications (Permanent UK residence) ISSUES CONCERNING THE APPLICATION FOR UNITED KINGDOM RESIDENCE CARDS By far the most important issue is the procedure for handling applications made by (extended) family members for United Kingdom residence cards (EEA2 applications). Applicants following this process as recommended by the United Kingdom Border Agency (UKBA) find themselves in a very difficult position. The application takes approximately 6 months to decide, and during this time the Home Office retains the passport of the European citizen and their family member. This means that both are de-facto unable to travel abroad, or to perform standard administrative procedures such as opening a bank account, applying for a National Insurance number, gaining employment, changing employers, registering with the National Health Service, renting or purchasing accommodation. Note: While it is possible to request back the passport, this is not encouraged by the UKBA. A section of the Certificate of Application states: “Our advice to applicants is not to make any non-urgent plans until we have decided their application and returned their passports or travel documents” (See sample of standard CoA in petition case file). Also there is no guarantee to receive it in time, and the expected time frame of 10 working days as stated by the UKBA is often not met. The Directive 2004/38/EC puts a number of safeguards in place that should ensure the rights of residence for European citizens and their family members are maintained. However, the incorrect applications of these safeguards in the UK, combined with an essentially unsuitable application process, leads to the above-mentioned serious restrictions during the application process. A. The first issue is that EEA2 applications are not possible in person, and have to be submitted by mail or courier [9]. While the Directive 2004/38/EC does not specify how such applications are to be made, it only requires the "presentation" of certain supporting documents. This is in contrast to "submitting" the application, and this distinction seems to imply that the supporting documents can be presented in person. And even in the case of a postal application, there seems to be no legal basis that would allow the UKBA to keep the passports of the applications, since this is an essential document for exercising the right of free movement. As such the common practice to hold the passport until the application is decided should be declared in violation of European law. B. The second issue is the delayed issuance of a Certificate of Application (CoA). Both EU and UK law requires this to be issued “immediately” [1] and [2] - [Directive 2004/38/EC [Article 10(1)] and The Immigration (European Economic Area) Regulations 2006 [17(3)] - which again seems to imply that an application can be made in person. For postal applications, this would at least mean that a certificate is sent back using first class mail the day the application was received. However, the UKBA has been reported to take several weeks to send a certificate of application (see petition case file), and this is sent using second-class mail, causing further delays (see petition case file). An additional problem with the CoA is that it contains a general and conditional phrased text, which is not at all specific to the situation of the application/applicant. As such, the function of the CoA - to guarantee basic freedoms while the application is under consideration - is effectively not achieved. So even with the CoA, family members find themselves often unable to seek employment, register with the National Health Service, obtain a National Insurance number or open a bank account. Also the certificate of application advises, “not to make any non-urgent travel plans”. This is a clear violation of the right of free movement; hence the wording needs to be revised to align with the EU Directive. C. The third issue is that EEA2 applications often take longer than six months. In 2008, some applications submitted from December 2007 onwards took well over 6 months to be decided, even in simple cases (see petition case file). This is probably caused by insufficient processing capacity at the UKBA, but whatever the reason, it is a clear violation both of UK Immigration law and EU community law. Since 6 months is the absolute maximum duration (including complicated cases), ‘straightforward’ cases should then be processed significantly faster. The insufficient capacity at the UKBA is no plausible excuse, since the situation has been difficult since the implementation of the Directive, and no improvements seem to have been made since. For Permanent UK Residence applications (EEA4), please also see petition case file. D. Finally, the Certificate of Application is not always effective in proving the rights granted by law. For example [4] states that non-EEA family members need a valid EEA Family Permit to enter the UK, although according to the ruling in [7] it is not required. The same issue is also found in non-immigration related documents issued by the Home Office. For example, the Code of Practice "Prevention of Illegal Working" [6] states that a Certificate of Application is sufficient to prove the right to work, “when produced in combination with evidence of verification by the Border and Immigration Agency Employer Checking Service”[6] Page 25(4)]. Together with the slow processing of applications by the UKBA, this seriously infringes on the right to work and on personal liberties. We feel these problems could be mitigated by applying for an EEA Family Permit (the required entry visa for family members) within the UK. Unfortunately, due to the structure of the UKBA, EEA Family Permits cannot be issued in the UK. And even family members that do obtain an EEA Family Permit outside of the UK will find themselves invariable with a time gap of uncertain status, because the EEA Family Permit expires after 6 months, but the application process for the Residence Card also takes 6 months. In a way this inconvenience was created without necessity when the validity of the EEA Family Permit was reduced from 12 months to 6 months in 2006. FURTHER ISSUES Although the EEA2 application process for non-EU family members is by far the biggest obstacle, it is not the only one created by the implementation of the Directive. Extended family members of EU Nationals can find themselves in a very difficult position as well. The Directive requires that their personal position is assessed, and a refusal of the right of residence is well justified. Unfortunately, no formal time limit is set for the processing and consideration of their EEA2 application [3] Chapter 5 [1(1.3). Since the UKBA holds the passport and does not allow employment during this time, the life of the applicant is essentially on hold. There is no legal redress available against this practice of the Home Office in the UK, and an appeal to the European Court of Justice would be lengthy, costly and also difficult. While it is clear that the UK law does not implement the Directive correctly in this respect, there is also a certain lack of clarity in the Directive itself that we feel contributes to this situation. RECOMMENDATIONS In light of all the evidence provided, we the signatories of this petition, beseech the European Parliament to address the above issues of non compliance to the EU Directive 2004/EC by the UKBA with respect to the issuance of United Kingdom residence cards to Non EEA family members and to ensure that: 1. United Kingdom Residence Card (and permanent residence card) applications for Non EEA family members of qualified EU Citizens are decided within six months from when the application and supporting documentation is received by the UKBA [as stipulated in the EU Directive 2004/38/EC and The Immigration (European Economic Area) Regulations 2006]. 2. The EU directive 2004/38/EC clearly defines a reasonable time scale within which UK Residence Card applications by extended family members of qualified EU Citizens should be considered and decided by the UKBA (as opposed to it being left solely to domestic legislation and discretion). 3. That a Certificate of Application (CoA) be issued immediately upon the UKBA receiving a UK Residence Card application. As there is currently no provision for in-person UK Residence Card applications for non-EEA family members, we believe it would be reasonable to receive a CoA within one week of such an application (and necessary supporting documentation) being lodged with the UKBA. 4. Specificity is accorded to the wording of a certificate of application in order to reflect the legal status/rights of the applicant. REFERENCED DOCUMENTS [1] “The Directive”: Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, [2] Statutory Instrument 2006 No. 1003 - The Immigration (European Economic Area) Regulations 2006, [3] UKBA European Casework Instructions, updated 16 June 2008, [4] UKBA Visa application guidance, EEA & Swiss nationals (INF18), updated 04 January 2008, [5] EEA2 application form from the UKBA website, Version 05/2008, [6] Prevention of Illegal Working, Summary Guide for Employers, February 2008, especially List B [7] European Court of Justice ruling in case MRAX v Belgian State, C-459/1999, [8] European Court of Justice ruling in case Yunying Jia v Migrationsverket, C-1/2005, [9] UKBA instructions for European Citizens and their family members applying for confirmation of rights of residence in the United Kingdom under European Law


Non-EEA/Swiss Family Members' freedom of movement in the UK

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