Home Office Ignore Rising Numbers of Urgent EEA Residence/PR Applications Despite Increase
With hundreds of long-term EU nationals residing in the UK unsure of their status after 23rd June 2016 if a Brexit occurs, it seems bizarre that the Government has made no effort to change a 2014 policy that expired in December last year which quietly removed the discretion of the Home Office to request that EEA Applications be hurried through after three months in certain circumstances.
Curiously, when an increase in applications (such as those for Residence Cards) could have been forecast to increase as soon as the date for a referendum was announced, the existing Home Office policy still makes no reference to the legal obligation to make a decision within six months of an EEA application being made. This obligation is reflected in The Immigration (EEA) Regulations 2006 as amended at paragraph 17(3).
Officials making Immigration decisions seldom refer to legislation; their bibles are the policy manuals which should incorporate the relevant regulations so public body decisions are made lawfully and fairly. The policy manual which currently applies to the issuing of EEA Applications is the EEA, Swiss nationals and EC association agreements (modernised guidance). The ‘modernised guidance’ makes no reference at all to the ability of the Home Office to expedite EEA Applications.
The current timelines for EEA Applications to the Home Office
According to figures obtained by OTS Solicitors from the Home Office in March 2016, the average time for an EEA national to wait for a permanent residence Certificate is around two months; however, for family members applying for Residence Cards or permanent residence Cards, the wait is around four months. It would be a reasonable to assume that applications are increasing at present, as the date for the EU Referendum is fast approaching and waiting times have increased since 2015.
The 2014 policy for expediating EEA Applications
The current policy on fast-tracking EEA Applications was introduced in October 2014 via the Process Instruction Notice 92/2014: B Handling of Requests for Priority Treatment of European Applications.
The policy makes no reference to the previous three-month timeline for speeding up the process or the six-month period by which a decision needs to be made by law. Instead it states:
“A key consideration is whether the request for priority treatment of the application has come
from a Minister and whether it is being dealt with:
by the Minister as a constituency matter; or
in his or her Ministerial capacity.”
It then goes on to advise decision-makers:
Criteria for priority
3.1 In deciding whether to agree to a request for priority, caseworker should consider whether:
refusal of the priority request is likely to create more work (i.e. in justifying the refusal) than would make the refusal worthwhile; and
there is evidence that the case has been mishandled or overlooked. (If the case is more than 6 months old but the delay is justifiable priority should not be given).
In either case, consideration should normally begin immediately.
3.2 We may, in addition, consider granting a measure of priority in circumstances where
an applicant:
is unable to make journeys necessary for compassionate or business reasons on existing documents
has already been significantly inconvenienced as a result of inefficiency on the part of the Home Office. (In such cases priority should be given when the fact comes to light, regardless of whether it is requested)
has secured the agreement of a minister or senior official to priority consideration (but see paragraph 1 above)
has been invited to make a fresh application (where the decision to refuse a previous application might have been made sooner but for an oversight in UKVI, and the new application has been received within a reasonable time after our refusal letter
The consequences of delayed EEA Applications
Delays in granting EU free movement applications can have serious consequences, especially for non-EEA nationals who are residing in the UK as family members of EEA citizens.
Compensation has been awarded in cases where the delay has caused ‘damage’ to the applicant. For example:
In 2016 the Government paid £40,000 in compensation for the 19-month delay in granting an Ethiopian national with her EU residence documents. The slowness in granting the documents meant that the applicant was unable to work for nearly a year and a half.
In the case of R (on the application of Santos) v Secretary of State for the Home Department [2016] EWHC 609 (Admin), a man was awarded £136,048 in damages after the Home Office took over four years to grant him his Residence Card, detained him, left him unable to work and caused immeasurable stress and anxiety to him and his family.
The case of R (on the application of Santos) v Secretary of State for the Home Department provides a set of principles around the granting of damages for breaching EU freedom of movement rights.
Laing J stated:
“First, the rule of law which has been infringed must have been intended to confer rights on individuals. Second, the breach must be sufficiently serious. Third, there must be a direct causal link between the breach and the damage suffered. Although the Member State has a discretion in determining the type of damages awarded, the rules must not be less favourable than for equivalent domestic claims and must not make it excessively difficult to obtain compensation, loss of profit cannot be excluded as a head of damage.”
In Conclusion
One of the reasons judicial review is such an important concept is because it allows an independent Judiciary to review decisions made by public bodies, and ensure those bodies are following the law.
And the law is what is enshrined in Statute, not in a policy manual.
If you are waiting on an EEA application and it has been longer than six months, then you need to contact a Solicitor to discuss claiming compensation.
If you want your application to receive priority treatment, your best approach under the current policy is to contact your local MP and provide them with a good reason why your application should be expedited; such as, you cannot travel for work purposes without updated documents.
Based in the heart of London, OTS Solicitors is regarded as one of the best Immigration law firms in the UK. Our Managing Partner Teni Shahiean has appeared on the BBC and panel discussions to advise on EEA Regulations, and our team are experts in advising on EEA Applications and appeals, as well as Administrative and judicial review.
If you wish talk to us about your EEA application, please phone our London office on 0207 936 9960 to make an appointment with one of our Immigration specialists.