Immigration (European Economic Area) Regulations 2006 - Implementation Issues

Implementation Issues

By far the biggest implementation issue is the long processing time for the issue of residence cards (EEA2 applications). This can take 6 months or longer (current processing times as at January 2009 are up to a year according to the web site). During this time it is very difficult for the family member to start working, to open a bank account, to register with a doctor or to travel. This issue is created and aggravated by a combination of several seemingly harmless infringements. These infringements are:

• The initial visa (EEA family permit) is valid for only 6 months (reduced in 2006 from previously 12 months).
• The processing of the EEA2 application (which is required to be completed within 6 months) often takes longer than 6 months.
• During this time the passport of both the EEA citizen and the family member is held by the Home Office.
• While it is possible to request the passport back without cancelling the application, the current web page does not mention this (unlike the previous one).

And without the passport life can be difficult for a foreigner, because the passport is required in many situations. Even if the passport is received back, family members often encounter difficulties because of the short validity of the EEA family permit. For example a GP may refuse to register the family member because the visa is not valid for another 6 months (which is not correct, but nevertheless common).

Most of these problems are aggravated by the way that the certificate of application (the acknowledgment of the application) is issued.

• The certificate of application (which is required to be issued immediately) is sent very slowly.
• The certificate of application is a generic letter without reference to the concrete case.
• The certificate of application does not grant the right to enter the UK.

The obvious solution would be issue a temporary visa with the right to work immediately, and to send the residence card once the application is completed. A self help option is to keep the passports and only include a copy in the application. According to individual reports the Home Office will request the passport once the application is ready for processing, and then the residence card is issued reasonably quickly.

There are further issues, but they have a comparatively small effect. The application forms (EEA1, EEA2, EEA3, EEA4, and VAF5) are overly complicated, ask for a good amount of unnecessary information, and ask for many more documents to be included than legally necessary under the directive. For example, the application for a residence card as the family member of an EEA national requires that the EEA national's employer stamps the application form and provides a letter confirming the EEA national's employment. Until March 2009 applications launched by family members from outside of the EEA are judged against the national immigration rules despite the ECJ's ruling in Metock case that the imposition of a requirement for prior lawful residence is unlawful under EU law. There are also issues for spouses that are separate but not yet divorced.

In May 2009 further regulations relating EEA applications were laid before parliament. These regulations introduced proscribed forms for requests of EEA residence documentation. The regulations allow the Home Office to decline to consider a request for residence documentation if the proscribed form is incorrectly completed or the individual requests documentation without using an application form. This move has brought criticism from immigration law practitioners who argue that the imposition of a proscribed form is unlawful under Directive 2004/38.

In theory entry into the UK should be possible even without an EEA Family Permit, but immigration officers are often not aware of this option, and personal reports are disencouraging. Residence cards issues by other EEA countries are not recognised as a replacement for the visa by the UK, although this is required by the Directive 2004/38.

Communicating with the Home Office is usually difficult. The advice given on the web page is also often inconclusive, incomplete or leaving out essential rights of the applicant (see applying). Written requests for an update as to the progress of an application are met with a stock response indicating that the priority of the Home Office lies with the removal of foreign nationals.