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UK blatantly obstructing EU free movement rights with red tape

UK blatantly obstructing EU free movement rights with red tape

Use of official application forms (paper or online) is mandatory from 1 February 2017: Can the Home Office force EU nationals to use the official 85 page permanent residence application form?

The UK is now blatantly obstructing EU free movement rights. As of 30 January 2015, a new Form EEA(FM) has been introduced for family members of EU nationals and of British citizens exercising Surinder Singh free movement rights. It is 129 pages long. The old version, called the EEA2, was 37 pages long. By comparison, the paper versions of forms for non EEA nationals applying as family members under UK domestic immigration rules are a grand total of 35 pages, and that includes all the interminable detail required for Appendix FM applications (VAF4A and VAF4A Appendix 2).

I have updated my Surinder Singh ebook with a new section giving guidance on completing the form and cover letter.

Given that the use of the forms provided by the Home Office for EU free movement applications is not even legally mandatory, this is quite a cheek [no longer accurate, see note above]. The second paragraph of the predecessor form, the old EEA2, used to read:

Please note it is not mandatory to complete this application form. However it will assist in dealing with your application more efficiently if this form is used. Please read the guidance notes at the front of this form before making your application.

The EEA(FM) includes no such disclaimer but the legal situation is unchanged: the provided forms do not *have* to be used, but in the interests of an application being decided as quickly as possible and with as little chance of being returned or refused as possible, it is nevertheless a good idea to use the provided forms. The new one even says that applicants should, “to save paper, postage and storage costs”, only print and send the front page with payment details and the sections of the form that are actually completed.

The EU is not unaware of the situation. Recent correspondence from the organisation Your Europe Advice shared with BritCits hits the nail on the head:

You should know that Your Europe Advice is aware of the excessive formalities that the UK authorities impose on applicants for residence documents, which we consider are not in keeping with the requirements of Directive 2004/38. It is clear that the imposition of additional requirements on applicants which go beyond those specifically laid down by Article 10(2) of the Directive represents reprehensible divergent administrative practices or interpretations constituting an undue obstacle to the exercise of the right of residence within the meaning of recital 14 of the Directive.

Regrettably, it is a possibility that the new 123-page application form has – in part – been designed in order to dissuade EU citizens and their family members from applying for a residence card.

The section of the EEA(FM) specifically on British citizens and their families relying on Surinder Singh and O and B v Netherlands is, like its immediate predecessor EEA2, particularly gratuitous. The form asks at section 9 for evidence of integration activities that are simply unnecessary in EU law:

  • details of financial commitments in the EEA state (for example, mortgage, rental agreement, bank account, investments)
  • evidence of learning or speaking the language of the EEA state (e.g. qualifications, evidence of attendance at language classes)
  • if you had any children or grandchildren living with you in the EEA state, details of any nursery/school/college/university they attended
  • membership of any social groups or sports clubs, etc.
  • details of any community activities undertaken in the EEA state
  • any other relevant information.

There is just no need in EU law for this information to be provided but applications are being refused on the basis of the centre of life test (if you receive a refusal please submit here). The form is deliberately obstructive and intrusive and it is likely to provoke a swifter reaction from the EU than would otherwise have been the case.

Having linked to Free Movement and suggested that the whole “centre of life” test is unlawful, YEA go on to give sage advice:

You therefore appear to have two options.

You can refuse to supply the information. However, this runs the risk of having your husband s application turned down and having to contest the matter before the courts which can be costly and time-consuming.

Alternatively, you can comply with the request for information and submit what evidence you have. However, you may wish to refrain from submitting any sensitive material in Section 5 such as documents relating to any medical treatment received. Instead, you may want to enclose documents attesting to having been registered with the Irish medical system … As for evidence of keeping in touch with your spouse, you may want to include non-sensitive materials such as documents showing you lived at the same address or travel records showing that you visited each other frequently.

My guess is that the Home Office is well aware that these requirements are unlawful and will be struck down in due course, but that these obstacles are being thrown in the way of free movement rights in order to reduce the numbers of people making use of Free Movement rights for political and ideological reasons. Anyone who loses money because of these requirements and delays caused should consider bringing a damages claim.

As YEA themselves say, though, anyone having to put up with this appalling red tape is best advised to knuckle down and get on with it. Standing on one’s rights and, for example, refusing to use the forms, is likely to lead to delays or even unlawful refusals. While a lawyer can usually sort such problems out, it is expensive, stressful and it delays things.

For those personally affected by EU free movement rights, I have updated my Surinder Singh ebook. I have included a new section of the ebook giving guidance on completing the EEA(FM). It can be purchased below.

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Comprehensive examination of law, policy and practice around the "Surinder Singh route" including hints and tips on avoiding problems. Foreword by Sonel Mehta of BritCits.

Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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