The Home Office have announced that they plan to impose all sorts of new requirements on European Community law applications for documentation proving the right to residence. I’ve copied the press release into the post below in case it vanishes later.
These new requirements would without doubt be unlawful if implemented. There is no requirement in EC law even to use a particular type of application form, never mind sign it, provide ‘specified’ documents and so forth. For that matter, there isn’t even a requirement in domestic law to use a particular form or provide specified documents for EC law applications: application forms are prescribed by regulations for immigration applications under UK immigration law but there is no equivalent provision in either UK law or EC law for EC applications. And if the Home Office is planning to introduce a UK requirement for forms and specified documents to be used for EC applications, it is an additional interference with EC free movement rights not permitted under the Citizens’ Directive. The European Court of Justice would quickly strike it down.
This is all because EC law gives people rights if they meet certain requirements. For example, being married to an EC national working in the UK automatically gives one the right to reside in the UK with that EC national, subject only to very limited public interest provisions. The right is possessed whether or not the Home Office have issued the documents that prove the right. Indeed, as long as the relationship and that the EC national is working are proven by some means — and the Home Office is not allowed to limit the types of evidence that can be considered because there are no such requirements in the Citizens’ Directive — the Home Office has to issue the documentation proving that the applicants have the right in question.
I can only assume this is posturing by the Home Office. It seems highly unlikely that regulations prescribing forms and evidence will be introduced, and if their process for dealing with applications fails to give speedy effect and recognition to pre-existing EC free movement rights, the ECJ will have something to say about it.
Applying under European law – make sure your application is complete
22 May 2009
The UK Border Agency is changing the way that it processes applications by European nationals and their families for registration certificates, residence cards, family member residence stamps or confirmation of permanent residence in the United Kingdom.
From 1 June 2009, we will check all applications as soon as we receive them. Unless you have completed the application form correctly and provided the necessary supporting evidence, we will not accept your application as valid under the Immigration (European Economic Area) Regulations 2006.
Applications submitted from families will be rejected in their entirety unless the necessary supporting evidence has been provided for all of the named applicants.
To make sure that your application is complete, you must:
– submit your application on the current appropriate application form;
– provide all the required photographs of yourself and any family members included in your application, as specified on the application form;
– provide all the original documents specified on the application form – each application form has a section entitled ‘Documents and photographs’, which lists all the supporting evidence that you must provide;
– complete all sections of the application form as required; and
– sign and date the declaration on the application form.
If you do not make your application in this way, with the correct supporting documentation, we will reject your application and return your application form to you.
If your passport is already with the Home Office, you must provide full details of this – including your Home Office reference number. If you do not provide these details, we will reject your application and return your application form to you as noted above.
For more information about these types of application, see the Applying under European law page.