24 Oct 2016, 58 mins ago

The recent talks about ‘Brexit’ in relation to the EEA referendum have prompted many EEA nationals and their family members to apply for evidence that they are legally resident in the UK. 

The new right to rent scheme, which came into force on 12 February 2016, is another reason why having documentary evidence of one’s right to be in the UK has become more important than it used to be. 

EEA nationals can apply for a registration certificate confirming they are exercising Treaty rights in the UK, and their family members can apply for a residence card, confirming their status. 

In accordance with Article 10(1) of Directive 2004/38/EC, applications should be decided within 6 months. Paragraph 17(3) of the Immigration (EEA) Regulations 2006, confirms that “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”.

However, the instructions to caseworkers published by the Home Office do not mention the six-months deadline, and do not explain in which circumstances an application should be prioritised. In practice, the Home Office generally seems to issue documents just within the six month time limit.  However, the increasing amount of EEA applications is likely to lead to further delays and it is therefore crucial to be aware of the steps that can be taken to ensure that EEA residence cards are issued in a timely fashion.

When chasing their applications, applicants should clearly explain any reason why their case should be prioritised and once the six months are up, the possibility of a judicial review, including a claim for damages, should be considered. 

However, although the threat of judicial review can certainly be used as a lever with which to put pressure on the Home Office to issue documents, in practice judicial review is an expensive process and many applicants may not have the funds to initiate a claim, even though they should be able to recover their costs at the successful conclusion of the case.  Furthermore, an award of costs may not be sufficient to cover all of the legal costs incurred.  In addition, unless a real prejudice can be attributed to the delay, then any damages award may not be very high.

This is not always the case, as demonstrated by Zewdu v SSHD [2015] EWHC 2148 (Admin). It appears that in this case the Home Office agreed to pay £40,000 in damages for a 19 months delay in issuing a residence card. 

Ms Zewdu was the primary carer of a British citizen and therefore the main issue in her case was whether she had a ‘derivative right of residence’ in the UK.

The Home Office had granted discretionary leave to Ms Zewdu on the basis of her human rights (article 8 EHCR) but had failed to recognize that she had a right to derivate residence based on her child’s EU citizenship. 

The court found that Ms Zewdu had sole responsibility for the upbringing of her British child, and that the child would be unable to reside in the UK or in any other EEA country if the carer was required to leave the UK. As such, the court concluded that Ms Zewdu was entitled to a residence card, and that the Home Office’s decision to grant her leave on the basis of article 8 ECHR only was unlawful. 

Subsequent to the judgment, Ms Zewdu’s solicitors stated that she had received around £40,000 in damages for the Home Office’s delay in considering her case.