The Home Office has quietly scrapped its old policy on requesting that EU free movement applications were given priority treatment and speeded up. This allowed for applications to be prioritised on request after three months in certain circumstances. The new policy allows for no such discretion, nor does it at all recognise the legal obligation on the Home Office to make decisions within six months of an application being made.
Duty to issue residence cards within six months of application
The Home Office is legally obliged to issue a residence card 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.
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, and an award of £40,000 is reported as having been made in one case involving a 19 month delay in issuing documents.
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.
More pressingly, most people will just want to get hold of the residence card for which they have applied. How can they do so?
Policy on expediting residence card applications
Back on 26 February 2014 I wrote the following short post alerting readers to the possibility of applying to expedite (fancy lawyer-speak for “speed up”) 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.
This post is actually an updated and republished version of the old short one. Things have moved on. The 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).
I recently found myself looking for the equivalent passage in the modernised guidance on EEA applications and could not find it. So I put in a Freedom of Information request, which has just come back with the new policy. Basically, the policy on expediting EEA applications has been scrapped. The new policy was introduced on 28 October 2014 and is called Process Instruction Notice 92/2014 Handling of Requests for Priority Treatment of European Applications.
Extraordinarily, the first part of the policy applies to enquiries from Ministers and senior officials. This is 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 are 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 is also provision to expedite at the convenience of the Home Office and its CAPITA private contractors.
It is clear that the previous benchmarks of three and six months are no longer considered relevant. The absence of any reference to the six month legal obligation is very striking indeed. The official position can be summarised as “we don’t care”.
Making a request
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.
RIP open government
As a final remark, I suspect that a lot of the material that used to be included in the published and public European Casework Instructions is now contained un unpublished policies like these Process Instruction Notices (I’ve never heard of them before) and the Operational Policy Instructions. Open government is receding.