24 Oct 2016, 58 mins ago

The Home Office has introduced a new form EEA (FM) on which to apply for a registration certificate or residence permit as the family member of an EEA national or of a British national who has exercised free movement rights in another EU Member State (such a person is treated as an EEA national when returning to the UK and EU, rather than UK, law applies to their right to bring their family with them – these are known as Surinder Singh applications after the European Court of Justice case recognizing this right). Whereas the previous form for this purpose was 37 pages long, the new form is a staggering 129 pages in length.

The right of residence for EEA family members derives from EU Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freelywithin the territory of the Member States. “Family member” means: spouse or registered partner; direct descendants under the age of 21 or dependants; and dependent directrelatives in the ascending line. In addition, the Directive requires Member States to facilitate entry and residence for any other dependent members of the EU citizen’shousehold; and partners in a durable relationship.

Article 10(2) of the Directive governs the issue of residence cards and places strict limits upon the documentary evidence that can be required by a Member State. For family members, this is limited to (a) a valid passport; (b) a document attesting to the existence of a family relationship or of a registered partnership; (c) the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining; (d) incases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met.

For dependent direct relatives, it is additionally permitted to require documentary evidence of dependency.

Regarding other dependant members of the household, it is permitted to require a document issued by the relevant authority in the country of origin or country from whichthey are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictlyrequire the personal care of the family member by the Union citizen. Similarly, it is permissible to require proof of the existence of a durable relationship with the Unioncitizen.

Clearly, a 129 page document requires far more information and documentary evidence than is permitted by the Directive. To make matters worse, the form is far longer thanthe equivalent form for family members of non-EEA nationals. This is extremely surprising given that EEA nationals exercising free movement rights have a right to bring theirfamilies here, whereas non-EEA nationals possess no equivalent right. Logically, one would expect more information to be requested from the family members of non-EEA nationals.

We are grateful to Free Movement for pointing out that the EU is in fact aware of the situation, and that the organization Your Europe Advice has written to BritCits stating:

“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 downby 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.”

We agree with Free Movement that this form appears to be an attempt to “blatantly obstruct” EU free movement rights. It is highly unlikely that the Home Office is unaware that it is acting unlawfully.

Nevertheless, applicants for residence permits would be best advised to try to complete the forms as best they can despite their likely unlawfulness. Although we think that the forms are likely to be struck down as unlawful at some point in the future, in the meantime failure to properly complete them is only likely to lead to adverse consequences or delay for the applicant.