Unlawful UK fees for EEA Residence Cards?

In April 2013, the Home Office started charging £55 to issue a 5 year EU/EEA Residence Card.   A few days ago, the fee rose to £84.20 (consisting of the base £65 fee and the required statutory biometrics/fingerprinting charge of £19.20).

The UK can charge for Residence Cards, Permanent Residence Cards and EU citizen registration, but Article 25(2) of Directive 2004/38/EC requires that they may not charge more than what is charged for “similar documents” issued to British citizens.

It is hard to identify any document issued to British citizens which costs more than £84.  If the Residence Card fee is higher than the similar documents, then it is an unlawful fee, which has recently been paid by more than 100,000 applicants.

Lets look more deeply, in case we have missed something.

What is a Residence Card really?

One can ask what functions or access a 5 year Residence Card gives you:

1. It is a government approved document to prove you have a right to work
2. It is a government approved document which allows you to board a flight to the UK, though it is then not required for actual entry to the UK
3. It is required by banks to open a bank account

It is worth remembering that in EU law, the family member of an EU citizen already has a right of free movement based solely on their relationship with the EU citizen who is exercising free movement rights.   An application for a Residence Card (or PR card) does not itself create any rights; the card is merely a confirmation of the already existing rights of the applicant.

The British government says they do not “require” family members get a Residence Card, but in reality family members of EU citizens have no other government approved way to prove their “already existing” right to work, to travel to the UK, or to open a bank account.   (Family members are separately required to have a passport from their country of origin, for travel and for ID purposes)

How might we assess “similar documents”?

A European Commission letter from Françoise Le Bail to the Home Office provides criteria for choosing a similar British-issued document:

In assessing compliance with EU law of the UK plans to introduce charges which are identical with charges for a UK adult passport, it is fundamental to examine whether the UK adult passports are the appropriate comparator and that there are no other, better, documents.

If that is not the case, the UK policy on passport charges may have been set up to reflect certain aspects which are relevant for passports but may not be relevant for residence documents issued under Directive 2004/3 8/EC – such as that passports may be issued by the UK embassies abroad, they have more security features, they must be in a harmonised format, they are more voluminous, they have a different period of validity, they are travel documents accepted by all countries or that the charges are set in such a way that the whole service is more or less self-financing.

Compliance of your plans with EU law can be assessed only on the basis of proper justification and in-depth analysis addressing the above issues. Where no appropriate comparable document other than a passport can be identified, the above justification and analysis should also examine an alternative solution – instead of issuing the residence documents free of charge or for a charge for a UK adult passport, which charges would cover the genuine administrative costs the UK authorities incur in issuing these documents.

(If interested, you can also read the Home Office’s questions to the Commission by the Home Office’s Peter Storr on this topic).

It is worth also looking at how frequently a document is issued to British citizens.  If 70% of all British citizens have a given document, then it may be a more appropriate document than something possessed 0.1% of citizens.

Which British documents might be “similar”?

• A British adult 10 year passport costs £72.50.   Prorating for 5 year validity would give an equivalent cost of £36.25.   An adult passport gives the holder functions (1), (2) and (3) above. The passport additionally acts as a travel document.
• A British long form birth certificate costs £4 when registering a birth, or £10 later, and never has to be renewed.   Together with “an official letter or document from a government agency (eg HM Revenue and Customs, Department for Work and Pensions, or the Social Security Agency in Northern Ireland) or previous employer, showing their name and National Insurance number”, the birth certificate proves right to work in the UK.
• Renewing a 10 year British drivers license costs £14.   Like a Residence Card, a driver’s license is a confirmation of an existing right, that the driver passed a test in the past and has a currently existing right to drive.  Prorated for 5 years, the drivers licences costs £7.
• A first provisional British driving license costs £34.  It is arguably oriented towards somebody who has no existing right to drive, and who now wants to begin, so may not be a very good comparison.
• A British Nationality Status Document (mentioned below) cost £88 in 2013, and apparently now costs £162.  It is not a common document for British citizens to have, and can not be used for any of the functions of a Residence Card.  It appears to be only a pre-screening document to allow the holder to apply for a British passport.  It can not be used for proving right to work, for boarding a flight to the UK, or for opening a bank account
• The Home Office charged £30 to issue a 2009 British ID card with 10 year validity.  Within EU law this is precisely a “similar document”, and is a useful comparison even though ID cards are no longer issued.   Prorated for 5 year the ID card would cost £18 (inflation adjusted).   This card could be used for proving right to work, for boarding a flight to the UK, or for opening a bank account

The current £84.20 fee for the UK issued 5 year EEA Residence Card is higher than all the “similar documents”, even though many of the British documents are valid for 10 years.

A long-form British birth certificate (costs £4 with no expiry) is the most common British document with similar function.  It can be used to prove right to work, and is very commonly held by British citizens.

The Home Office refuses to release details of how they evaluated “similar documents”

European Commission is reasonable in stating “compliance of your plans with EU law can be assessed only on the basis of proper justification and in-depth analysis addressing the above issues”.

FOI requests for that analysis have unfortunately  been refused by Home Office (See www.whatdotheyknow.com for the FOI request).  It is unclear what analysis was actually completed, whether the analysis undercuts the lawfulness of the fees actually set, or whether the analysis might embarrass the government in some other way.

The 2013 announcement of the fees gives one paragraph on the topic, with no analysis to speak of:

7.11   The fee level has been set at £55 following advice from the European Commission and after balancing consideration of the following factors: charges for similar documents issued to British nationals (for example, the UK Passport which costs £72.50, and the British Nationality Status Letter which costs £88); charges for other documents, which whilst not similar in the rights which they evidence, have a comparable practical effect (for example the UK drivers licence which costs £50); and the estimated cost to the UK Border Agency of issuing the European documentation (£82 per unit).

It is very curious that a British Nationality Status Letter is presented as a similar document.   It is so rarely issued to British citizens, provides none of the functionality of a Residence Card, and its most interesting characteristic seems to be high fee.   It is worth considering why was the Status Letter was even mentioned!

Conclusion

Even a rudimentary analysis shows the Residence Card fee is unlawful: it is more expensive than all similar British documents.   The Home Office is obviously concerned about the legality of their fee, and is withholding whatever analysis they may have done before enacting the legislation.

The separate fees for “EU citizen registration” also significantly exceed those of similar British documents, and so are unlawful.   One could argue that this is a functionless registration, as it gives the EU citizen nothing useful beyond what they get with their existing EU ID card or passport.   A “similar British document” is possibly a library card, which is generally issued at no cost.