Brexit is causing significant delays in the processing of EU free movement documentation applications. In normal times, before the Brexit vote on 23 June 2016, an EU national could expect a permanent residence certificate to be issued in about 6 weeks and a family member about 4 months or so. The details of the timings back in the halcyon days of 2015 were discussed in this earlier blog post: Waiting times for EEA residence applications.

This blog post looks at the duty on the Home Office to decide applications within 6 months and then moves on to consider the evolution of the policy on requests to expedite (fancy lawyer-speak for “speed up”) a decision and what that might tell us about the current approach.

Duty to issue residence documents within six months of application

The Home Office is legally obliged to issue an EU law residence document within six months of application. The Immigration (EEA) Regulations 2006 as amended state at paragraph 17(3):

On receipt of an application under paragraph (1) or (2) and the documents that are required to accompany the application the Secretary of State shall immediately issue the applicant with a certificate of application for the residence card and the residence card shall be issued no later than six months after the date on which the application and documents are received.

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This reflects Article 10(1) of Directive 2004/38/EC. However, there is no mention of this duty in the Home Office’s instructions to caseworkers, nor even in the policy on prioritising applications. Given that the junior civil servants dealing with such cases refer to the policies not the regulations, there is considerable potential here for breach of these provisions by the Home Office.

If the Home Office does fail in its duty to issue within 6 months, pursuing a legal remedy can difficult and may well be disproportionate depending on the losses and inconvenience experienced. It is possible to seek damages for breaches of EU law, though, as discussed at the end of the blog post.

More pressingly, most people will just want to get hold of the residence document for which they have applied. How can they do so?

Past policy on expediting residence document applications

Back in 2014 I wrote the following short post alerting readers to the possibility of applying to expedite  an EU residence card application:

It is possible to request that an EU residence card application is expedited where it has been outstanding for over three months. See the European Casework Instructions at Chapter 10 for details. There are also other potential justifications for speeding things up, including being unable to make journeys necessary for compassionate or business reasons on existing documents, being elderly (i.e. 65 or over) and showing that an EEA document is needed for a particular job.

Things moved on. The old European Casework Instructions were scrapped and replaced by the dreaded “modernised guidance”. The modern equivalents can be found in the far less comprehensive EEA, Swiss nationals and EC association agreements (modernised guidance). The replacement policy included no section on expediting applications.

I made a Freedom of Information request to see if there was any unpublished policy in place. There was, introduced on 28 October 2014 and called Process Instruction Notice 92/2014 Handling of Requests for Priority Treatment of European Applications. A further FOI request confirmed that the policy was still current in April 2016.

Extraordinarily, the first part of the policy applied to enquiries from Ministers and senior officials. This was said to be a “key consideration” in whether to prioritise an application. The policy makes clear there is nothing considered wrong about this:

It is perfectly proper for Ministers to look into cases which are drawn to their attention by MPs, representative groups or by individuals who write to them or approach them in their Ministerial capacity.

Other than where a Minister intervenes, the criteria for prioritising were said to be:

• refusal of the priority request is likely to create more work (i.e. in justifying the refusal) than would make the refusal worthwhile
• 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)
• the applicant is unable to make journeys necessary for compassionate or business reasons on existing documents
• the applicant 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)
• the applicant has secured the agreement of a minister or senior official to priority consideration
• the applicant 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

There was also provision to expedite at the convenience of the Home Office and its CAPITA private contractors.

It seemed that the previous benchmarks of three and six months were no longer considered relevant. The absence of any reference to the six month legal obligation was very striking indeed. The official position was essentially “we don’t care”.

Current policy on expediting residence document applications

On 14 February 2017 an existing instruction for Home Office staff was updated. This includes a section on expediting applications. This is Processes and procedures for EEA documentation applications and the section on expediting as at page 44-45.

Unhelpfully, what seems to be a significant section of the policy has been censored as being for internal Home Office use only. We are left with some limited information about how requests to expedite are handled once they reach the Home Office, a section that tells us applications should be expedited of a person is detained and then a short section on exceptional circumstances:

There may be exceptional, compelling circumstances that would merit an application being expedited. Examples of grounds which could be considered exceptional, compelling circumstances include:

• family emergencies such as bereavement or serious illness
• the need to travel for essential medical treatment overseas

In all cases, documentary evidence of the exceptional, compelling circumstances must be provided. Family celebrations such as weddings and holidays are not generally considered exceptional, compelling ‘family emergencies’ which would merit expediting an application.

We do not know whether getting an MP to intervene is still a useful thing to do or whether the old list of factors, such as previously having been inconvenienced by the Home Office, are still considered relevant. We do not know how to contact the famously impenetrable Home Office to request an application is expedited. However, the policy does say this:

Applicants may contact the Home Office directly, or may ask their MP or a minister to make enquiries on their behalf. All requests for a case to be expedited must be referred to the appropriate email inbox.

I would guess that where an MP intervenes this is likely to speed things up. There is a phone number (call charges apply) for EU nationals on the gov.uk website.

As far as we can tell from the published document, the old benchmarks of 3 and 6 months are not relevant.

Requesting return of a passport

It is possible to request return of your passport from the Home Office using an online form. This does not have the effect of withdrawing the application, despite the name of the page. One of the first steps is to state whether you are withdrawing your application or not.

The Immigration Minister stated in correspondence with ILPA (ILPA members only) on 10 October 2016 that current turnaround time for returning passports is within 10 working days.

Those using the newer online application (only available for EEA(QP and EEA(PR) at the time of writing) can have their passport returned immediately through the European Passport Return Service.

If residence document is not received

A separate problem can sometimes occur where a decision is made on an application but the actual document does not arrive. The pages on gov.uk providing information on residence card applications (for EEA nationals and their family members) does include a specific passage on what to do if your card hasn’t arrived. It says:

Email the Home Office on BRCDelivery@homeoffice.gsi.gov.uk if you haven’t received your residence card or permanent residence card within 10 working days of the date on your decision letter. Include the following in your email:

• your full name, date of birth and nationality
• your passport number
• your case reference number
• a contact telephone number
• your delivery address

What actually happens when a person sends such an email is a mystery to me. The policy does not allow for applications to be speeded up, so I would be very interested to hear what does happen. If this has happened to you, do please leave a comment at the bottom of the post.

Damages for delay

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Most people will just be relieved to get their residence documents and want to move on even if there have been delays. However, delays can very seriously inconvenience some people, and even lead to loss of earnings. If so, damages or compensation for delays in the issuing of EU residence documents are discussed in these blog posts:

• Family member of EU national awarded £136,000 damages against Home Office
• Home Office pays £40,000 in damages for delay in issuing EU residence documents
• Pursuing compensation from the Home Office

An application to the Parliamentary Ombudsman with a request for damages might be more feasible but is still a lengthy process, and it requires the intervention of a Member of Parliament. Read this post for details: Pursuing compensation from the Home Office.

Finally, on a personal note I am sorry that so many people are being messed around so badly by the Home Office, which had months to prepare for and react to Brexit but which is miserably failing EU nationals and their families.

Need help?

Here on Free Movement I try to provide information to help people with their own cases. Those interested in making an EU law application may be interested in my ebook guide making an application and the Application Checking Service provided via Free Movement:

This is a revised and updated version of a blog post originally published on 26 February 2014.