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 Post subject: Is UK handling of EEA Family Permit visas still a problem?
Post Number:#1  PostPosted: 10 Aug 2014 20:30 
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Is UK handling of EEA Family Permit visas still a problem?

In the past, British embassy handling of EEA Family Permit visas has systematically violated EU Law, even in the straight forward cases.

The problems are detailed in the Oct 2012
complaint to the European Commission CHAP(2012)3146.

The executive summary of the complaint (reproduced below) highlights some of the problems encountered by married couples applying for an EEA Family Permit. The full complaint has significantly more detail.

I need your assistance: Are problems handling EEA Family Permit visas at British embassies, as outlined in the complaint, continuing?

Comment on this post if you have examples of more recent problems involving married couples. Links and details would be very helpful.

From the complaint: ….

Executive Summary [from CHAP(2012)3146]

The UK is systematically violating EU free movement law, by refusing family member visas for reasons that are explicitly prohibited by Directive 2004/38/EC and relevant ECJ case law:

  1. British visa officers (ECOs) are refusing family member visas because the EU citizen has not proven that they will likely find employment when they eventually travel to the UK, or because the EU citizen has not proven they have assets to support themselves once in the UK

  2. ECOs are refusing visas to spouses of EU citizens when the ECO suspects a marriage of convenience but has done nothing to test their suspicions. We have found no instance of ECOs requesting additional supporting evidence about the relationship or asking to interview the applicant or their EU spouse before refusing the application

  3. An ECO explicitly took into consideration “the current economic climate in the UK”, even though this is explicitly forbidden by Directive 2004/38/EC

  4. UKBA and ECOs are requiring applicants to answer questions which are non-material to the issue of a family member visa, and which are prohibited by C-68/89 Commission v Netherlands [1991]

  5. Anyone wishing to exercise their right of appeal must pay a fee of at least £80. When the visa is finally issued, the applicant will have paid that amount for their EEA FP, even though the visa must be issued for free

  6. Visa applications are not given priority processing. Some UK visa offices appear to process the applications at the same (slow) speed as UK-law “settlement visas”

UKBA’s guidance, training material, and day-to-day administrative practice lead to a consistent and ongoing breach of the Directive in a ways directly precluded by established free movement case law.

Material released by the UK Border Agency (UKBA) in response to Freedom Of Information (FOI) requests show that their officers are being actively trained to evaluate & refuse applications in ways which are unambiguously in violation of EU free movement law.

The impact is large. The UKBA refused 4,500 EEA FP applications in 2011, approximately 20% of all applications, with some visa offices rejecting more than 50%. The dismal quality of the refusals, documented in the following sections, suggests that a very large number of these were incorrectly refused. This amounts to a substantial impediment to the free movement rights of each of the EU citizens involved.

In none of the cases would UKBA dare to directly block the EU citizen from directly entering the UK. Instead they are using the family member’s visa application to achieve the same effect.


Article from: freedom of movement in the EU

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 Post subject: Re: Is UK handling of EEA Family Permit visas still a proble
Post Number:#2  PostPosted: 17 Apr 2015 11:58 
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Unlawful UK fees for EEA Residence Cards?

In April 2013, the Home Office started charging £55 to issue a 5 year EU/EEA Residence Card. A few days ago, the fee rose to £84.20 (consisting of the base £65 fee and the required statutory biometrics/fingerprinting charge of £19.20).

The UK can charge for Residence Cards, Permanent Residence Cards and EU citizen registration, but Article 25(2) of Directive 2004/38/EC requires that they may not charge more than what is charged for “similar documents” issued to British citizens.

It is hard to identify any document issued to British citizens which costs more than £84.
If the Residence Card fee is higher than the similar documents, then it is an unlawful fee, which has recently been paid by more than 100,000 applicants.

Lets look more deeply, in case we have missed something.

What is a Residence Card really?

One can ask what functions or access a 5 year Residence Card gives you:

  1. It is a government approved document to prove you have a right to work
  2. It is a government approved document which allows you to board a flight to the UK, though it is then not required for actual entry to the UK
  3. It is required by banks to open a bank account

It is worth remembering that in EU law, the family member of an EU citizen already has a right of free movement based solely on their relationship with the EU citizen who is exercising free movement rights. So an application for a Residence Card (or PR card) does not itself create any rights. The card is merely a confirmation of the already existing rights of the applicant.

The British government says they do not “require” family members get a Residence Card, but in reality family members of EU citizens have no other government approved way to prove their “already existing” right to work, to travel to the UK, or to open a bank account. (Family members are separately required to have a passport from their country of origin, for travel and for ID purposes)

How might we assess “similar documents”?

A European Commission letter from Françoise Le Bail to the Home Office provides criteria for choosing a similar British-issued document:

  • In assessing compliance with EU law of the UK plans to introduce charges which are identical with charges for a UK adult passport, it is fundamental to examine whether the UK adult passports are the appropriate comparator and that there are no other, better, documents.

  • If that is not the case, the UK policy on passport charges may have been set up to reflect certain aspects which are relevant for passports but may not be relevant for residence documents issued under Directive 2004/3 8/EC – such as that passports may be issued by the UK embassies abroad, they have more security features, they must be in a harmonised format, they are more voluminous, they have a different period of validity, they are travel documents accepted by all countries or that the charges are set in such a way that the whole service is more or less self-financing.

  • Compliance of your plans with EU law can be assessed only on the basis of proper justification and in-depth analysis addressing the above issues. Where no appropriate comparable document other than a passport can be identified, the above justification and analysis should also examine an alternative solution – instead of issuing the residence documents free of charge or for a charge for a UK adult passport, which charges would cover the genuine administrative costs the UK authorities incur in issuing these documents.

Which British documents might be “similar”?


  • A British adult 10 year passport costs £72.50. Prorating for 5 year validity would give an equivalent cost of £36.25. An adult passport gives the holder functions (1), (2) and (3) above. The passport additionally acts as a travel document.

  • A British long form birth certificate costs £4 when registering a birth, or £10 later, and never has to be renewed. Together with “an official letter or document from a government agency (eg HM Revenue and Customs, Department for Work and Pensions, or the Social Security Agency in Northern Ireland) or previous employer, showing their name and National Insurance number”, the birth certificate proves right to work in the UK.

  • Renewing a 10 year British drivers license costs £14. Like a Residence Card, a driver’s license is a confirmation of an existing right, that the driver passed a test in the past and has a currently existing right to drive. Prorated for 5 years, the drivers licences costs £7.

  • A first provisional British driving license costs £34. It is arguably oriented towards somebody who has no existing right to drive, and who now wants to begin, so may not be a very good comparison.

  • A British Nationality Status Document (mentioned below) cost £88 in 2013, and apparently now costs £162. It is not a common document for British citizens to have, and can not be used for any of the functions of a Residence Card. It appears to be only a pre-screening document to allow the holder to apply for a British passport.

  • The Home Office charged £30 to issue a 2009 British ID card with 10 year validity. Within EU law this is precisely a “similar document”, and is a useful comparison even though ID cards are no longer issued. Prorated for 5 year the ID card would cost £18 (inflation adjusted).

The current £84.20 fee for the UK issued 5 year EEA Residence Card is higher than all the “similar documents”, even though many of the British documents are valid for 10 years. A long-form birth certificate (costs £4 with no expiry) is the most common British document with similar function. It can be used to prove right to work, and most British citizens have one.

The Home Office refuses to release details of how they evaluated “similar documents”

European Commission was reasonable in saying “compliance of your plans with EU law can be assessed only on the basis of proper justification and in-depth analysis addressing the above issues”.

FOI requests for that analysis have been refused by Home Office (See the www.whatdotheyknow.com request for details). It is unclear what analysis was actually completed, whether the analysis undercuts the lawfulness of the fees actually set, or whether the analysis might embarrass the government in some other way.

The 2013 announcement of the fees says only:

  • 7.11 The fee level has been set at £55 following advice from the European Commission and after balancing consideration of the following factors: charges for similar documents issued to British nationals (for example, the UK Passport which costs £72.50, and the British Nationality Status Letter which costs £88); charges for other documents, which whilst not similar in the rights which they evidence, have a comparable practical effect (for example the UK drivers licence which costs £50); and the estimated cost to the UK Border Agency of issuing the European documentation (£82 per unit).

It is very curious that a British Nationality Status Letter is presented as a similar document. It is so rarely issued to British citizens and its most interesting characteristic seems to be high fee. It is worth considering why was the Status Letter was even mentioned!

Conclusion

Even a rudimentary analysis shows the Residence Card fee is unlawful, simply because it is more expensive than all similar British documents. The Home Office is obviously concerned about the legality of their fee, and is withholding whatever analysis they may have done before enacting the legislation.

The fees for “EU citizen registration” also significantly exceed those of similar British documents. One could argue that this is a functionless registration, as it gives the EU citizen nothing useful beyond what they get with their ID card or passport. A “similar document” is possibly a library card, which is generally issued at no cost.

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