Is UK handling of EEA Family Permit visas still a problem?

In the past, British embassy handling of EEA Family Permit visas has systematically violated EU Law, even in the straight forward cases. The problems are detailed in the Oct 2012 complaint to the European Commission CHAP(2012)3146.

The executive summary of the complaint (reproduced below) highlights some of the problems encountered by married couples applying for an EEA Family Permit.  The full complaint has significantly more detail.

I need your assistance:  Are problems handling EEA Family Permit visas at British embassies, as outlined in the complaint, continuing?

Comment on this post if you have examples of more recent problems involving married couples.  Links and details would be very helpful.

From the complaint: ….

Executive Summary  [from CHAP(2012)3146]

The UK is systematically violating EU free movement law, by refusing family member visas for reasons that are explicitly prohibited by Directive 2004/38/EC and relevant ECJ case law:

1. British visa officers (ECOs) are refusing family member visas because the EU citizen has not proven that they will likely find employment when they eventually travel to the UK, or because the EU citizen has not proven they have assets to support themselves once in the UK
2. ECOs are refusing visas to spouses of EU citizens when the ECO suspects a marriage of convenience but has done nothing to test their suspicions. We have found no instance of ECOs requesting additional supporting evidence about the relationship or asking to interview the applicant or their EU spouse before refusing the application
3. An ECO explicitly took into consideration “the current economic climate in the UK”, even though this is explicitly forbidden by Directive 2004/38/EC
4. UKBA and ECOs are requiring applicants to answer questions which are non-material to the issue of a family member visa, and which are prohibited by C-68/89 Commission v Netherlands [1991]
5. Anyone wishing to exercise their right of appeal must pay a fee of at least £80. When the visa is finally issued, the applicant will have paid that amount for their EEA FP, even though the visa must be issued for free
6. Visa applications are not given priority processing. Some UK visa offices appear to process the applications at the same (slow) speed as UK-law “settlement visas”

 UKBA’s guidance, training material, and day-to-day administrative practice lead to a consistent and ongoing breach of the Directive in a ways directly precluded by established free movement case law. 

Material released by the UK Border Agency (UKBA) in response to Freedom Of Information (FOI) requests show that their officers are being actively trained to evaluate & refuse applications in ways which are unambiguously in violation of EU free movement law.

The impact is large.  The UKBA refused 4,500 EEA FP applications in 2011, approximately 20% of all applications, with some visa offices rejecting more than 50%.  The dismal quality of the refusals, documented in the following sections, suggests that a very large number of these were incorrectly refused.  This amounts to a substantial impediment to the free movement rights of each of the EU citizens involved.

 In none of the cases would UKBA dare to directly block the EU citizen from directly entering the UK.   Instead they are using the family member’s visa application to achieve the same effect.

 

Croatia joins the EU today (July 1)

The EU now has 28 member states.  Citizens of Croatia now have a right of free movement in all EEA member states (and the odd-ball Switzerland).  They cannot be required to answer questions about the purpose of their travels, and only in extreme situations can they be refused initial entry.

What if a Croatian citizen wants to work in one of the other 27 member states?

Self-employed Croatians and students who are working only part-time should have no problems, though the devil is in the details.

Several member states are putting initial restrictions on other Croatian workers: Austria, Belgium, Germany, Luxembourg, the Netherlands, Slovenia, Spain and the United Kingdom will impose restrictions on Croatians doing certain kinds of work.   There is no restriction on searching for work done in the initial 3 months of residence.

Ten member states have announced that they will not impose any restrictions on Croatian job seekers: the Czech Republic, Denmark, Estonia, Finland, Hungary, Ireland, Lithuania, Romania, Slovakia and Sweden.

In a clear and thoughtful analysis, the Irish DJEI says that Ireland will not impose restrictions on Croatians working in Ireland:

Based on the evidence available, Forfás concludes that it is unlikely that Croatia’s entry to the EU will have a significant distortionary [sic] impact on the Irish labour market and recommended that transitional arrangements should not be applied in the case of Croatian nationals seeking to work in Ireland following Croatia’s accession to the EU.

In light of all these issues, Government has decided not to exercise an option under the Treaty to restrict access to Ireland’s labour market for nationals of Croatia.

EU free movement denied

The Irish high court judgement of Raducan & Anor -v- MJELR & Ors   [2011] IEHC 224 illustrates EU free movement rights denied, and serious consequences following from that.

26. It is a matter of profound regret that a perfectly innocent [family member of an EU citizen] who had every right to enter [Ireland] was instead refused entry and found herself obliged to spend the equivalent of almost three full days in custody.

The case is about the Moldovan wife of a Romanian citizen who was denied entry to Ireland and was detained for three days.  She was not given entry on presenting her Residence Card as a family member of an EU citizen (Article 5(2) of the Directive 2004/38/EC), nor was she her entry facilitated when she presented a marriage certificate proving her relationship to her EU husband.

Who is deemed a worker under EU law?

If you work full-time in a normal paid job, then you are pretty clearly a “worker” for the purposes of EU law.

But what if you are working part-time at McDonald’s in a host member state?  Or you are a student, but you work a bit to give yourself some cash?   Are you considered a “worker” for the purposes of EU free movement law?

The Danish government very generously summarizes some of the European Court of Justice (ECJ) case law on who might be considered a worker:

When is a Union citizen/an EEA national deemed to be a worker under EU law?

It depends on a concrete assessment of the specific circumstances of each case whether a Union citizen/an EEA national, including a Danish national, is deemed to be a worker under EU law. What is crucial is whether a person has had genuine and effective employment. Accordingly, employment appearing to be a mere marginal supplement is excluded from the scope of application of the concept. It is therefore normally a condition that the relevant employment was for at least 10-12 hours a week.

According to the jurisprudence of the European Court of Justice it is normally a requirement that the applicant has been employed for a minimum of 10-12 hours per week, see judgment Kempf (C-139/85) and Megner and Scheffel (C-444/93).

In the case of Kempf the employment in question was 12 hours per week, and in the case of Megner and Scheffel the European Court of Justice has ruled that paid employment where the working hours normally do not exceed 18, 12 or even 10 hours per week do not exclude that the person is regarded a worker under the EU legislation.

In the judgment of Genc (C-14/09) the European Court of Justice established criteria for the purposes of the concrete and individual assessment of whether an employment for less than 10-12 hours per week is genuine and effective. These criteria may be the entitlement to paid leave, remuneration during illness, the duration of the employment, and a collective agreement applies to the employment. The employment in the mentioned case was 5,5 hours per week.

The European Court of Justice did not consider whether a weekly employment of 5,5 hours was sufficient in order to be considered a worker under EU law, or whether the employment was of a merely marginal nature. It was left to the member state to undertake this evaluation.

It is not possible to fix a lower limit for the duration of the employment for assessment purposes.

The European Court of Justice ruled in Franca Ninni-Orasche (C-413/01) that a fixed-term contract of employment for ten weeks was sufficient for the applicant to be a worker under EU law. The case concerned educational grants and led to the issue of guidelines to the local authorities about when a person is deemed to be a worker. The guidelines concern employment relationships for which a short-term contract has been concluded in advance. The guidelines fix a minimum period of ten weeks for such situations. However, it should be emphasised that a concrete assessment must be made in each case.

Accordingly, a concrete and individual assessment must be made in each case, and the ten-week period fixed by the Court in the Ninni-Orasche judgment is thus only to be seen as an example of a situation in which ten weeks of employment were deemed to suffice.

A Union citizen/an EEA national who has permanent employment, but ceases working after less than ten weeks, may satisfy the conditions for being a worker under EU law in certain circumstances, while another person having worked for more than ten weeks may not always satisfy the conditions because it is not genuine work or for other reasons.

UKBA writes the following about workers in their 2010 untitled document eeaandswissnats.pdf (archive copy):

6.2.1 Workers

6.2.1.1 “Worker” is defined in the Immigration (European Economic Area) Regulations 2006 as ‘within the meaning of Article 39 of the Treaty establishing the European Community’. This suggests that a worker is a person who is employed, actually or potentially, under a contract of employment and is not a self-employed person. The European Court of Justice, in Lawrie-Blum [1986] ECR 2121, stated that the essential point is that the person provides services during a given time for and under the direction of another in return for remuneration. The EEA national’s position within the organisation, the purpose of the work, the level of income it yields (including whether or not the person has to supplement his or her income by claiming social security benefits), and whether payment is in cash or in kind, are not relevant factors.

6.2.1.2 “Worker” includes:

• job seekers
• those between jobs (for example, women who have ceased employment on becoming pregnant but who intend to resume work at some point after the birth)
• those undergoing training in their own or another field
• sick, injured and retired workers

6.2.1.3 Reliance on public funds during periods of involuntary unemployment or training does not affect the right to remain under Community law. However, while a person who has been seeking work for more than 6 months may still be a ‘worker’ for Treaty purposes, the evidential burden shifts to that person [after 6 months] to demonstrate that genuine efforts are being made to find employment and that he or she has a realistic prospect of success (R v IAT ex p Antonissen [1991] ECR I-745).

6.2.1.4 Under Article 39(4) of the EC Treaty, the freedom of movement provisions do not apply to certain public servants (e.g. judges). The test is whether the person is responsible for exercising powers conferred by public law or for safeguarding the general interests of the state.

When I have time, I will try to expand the case law here.

Complain effectively about breaches of European Law

Why complain?

Government bureaucracy of a member state can be very odd.  Sometimes they can be very well informed, efficient and effective.  Or they get stuck in the rut of doing everything the way they always have, even if it is against the law.  Sometimes training of staff is poor.  Or individual members of staff may operate outside the rules for their own reasons.  The are all sorts of reasons why they may do things incorrectly with respect to their obligations under European law.

1. Most organizations do not want to be seen to be clearly breaching well established European law
2. Complaining can help resolve your specific problem.   It brings light to parts of the organization, and with it often some remedial action
3. It can help others who follow in your footsteps: they will not have to go through the same hassle, waste of time and money, and humiliation that you have had to possibly endure
4. It can call the European Commission’s attention to larger trends that are incorrect but still happening across multiple member states

Complain effectively

• Focus on the issue which is in direct violation of European law (e.g. that you were charged a fee for your visa)
• You may likely be frustrated or angry: do not let that get in the way of clearly expressing the actual violation of European law

EU free movement in the news

NY Times: Universities in Scotland to Charge Other Britons

The Scottish offer free university education to the Scottish and to citizens of other EU member states (and their family members!).

There is clearly an opportunity to use EU law to open Scottish universities again to applicants from the rest of the UK.

This raises some questions and options:

• How do they determine who is “Scottish”?  Based on where they are living or where they were born?   Answer: (Guardian.co.uk and another) “Scottish […] tuition fee arrangements are based on ordinary domicile and not nationality”
• Can the ECJ’s Singh ruling be used to force free university education for non-Scottish British citizens who have worked in another member state?   After a gap year with some work elsewhere in Europe, British students could then argue that they should be treated the same as citizens from other EU member states and receive free education in Scotland.   While the Singh ruling is mostly known for allowing spouses to move home on the basis of EU law, it has wider scope.
• There is an interesting possibility that being from the UK (but not Scotland) may count as being from “another EU member state” for the purposes of studying in Scotland. A similar EU law argument has been proposed for English barristers being considered “qualified” to present before immigration tribunals in Scotland.

Wall Street Journal: Spaniards Seek Jobs in Germany

Citizens of Spain, where unemployment is very high, are willing to move to Germany for work.   No surprise and good for them!  They will likely get a lot more out of their move than just work.

Danke free movement!

Die Zeit: Das gelobte Land

An article about some of the variety of people who have established themselves in Germany and how they find it living there.  Many are from other EU member states.  Interesting stories!  (Article is only in German)

ECJ Case C-157/03, Commission v Spain [2005]

ECJ Case C-157/03, Commission v Spain [2005], was about the visas that family members of EU citizens require for initial entry, and the timely processing of Residence Card applications.  The ruling applies to all member states, and make clear:

1. A member state can not require long-term immigration visas for for family members accompanying or joining their EU family member. When they require a visa, they can only require [the equivalent of] a short term tourist visa.  Long-term immigration formalities are handled only during processing of the Residence Card.
2. Residence [Cards] must be issued within the required maximum of 6 months.  No delay or extension is allowed.

The court’s ruling on this case is interesting because it is a useful tutorial on the strictly delimited requirements for the issue of visas and Residence Cards to non-EU family members of free-moving EU citizens.   Member states can not add requirements beyond this.

To whom does EU freedom of movement law apply?

It can be difficult to tell when EU freedom of movement law applies. This is a first attempt at making it easier to understand.  Comments below if any of this is unclear…

You are a citizen of an EU member state and have never lived/worked in a different member state

• EU free movement law is not relevant for a family member’s entry into your country of citizenship.  National law applies, and the rules will vary significantly depending on which member state it is.   (There are exceptions: In certain circumstances you may benefit from EU law without having resided in another EU country, for example by providing services in another EU country without residing there.  And the parents of EU citizen children have some rights to have their parents live with them)
• EU free movement law does apply for any vacation or move to another EU/EEA member state with your family members

You are a citizen of an EU member state and are presently living/working in a different member state

• EU free movement law governs your rights (and those of your family) in your host member state, as well as for any vacation or move to another member state
• If you return to your home country of citizenship, you can choose to either use your country’s national immigration law or the generally simpler/easier/cheaper EU free movement law for the entry of your family members.  See information about Singh for more details

You are a citizen of an EU member state and are presently living outside the EU

• EU free movement law governs your rights (and those of your family) to move to any other EU/EEA host member state but not the country of your citizenship
• If you return directly to your home country of citizenship, you will likely have to use your country’s national immigration law, unless you and your family have previously been living/working in a different EU/EEA member state

Case C‑68/89 Commission v Netherlands [1991]

I have moved this blog post to it’s own page.

Click here (Case C‑68/89 Commission v Netherlands [1991]) to go to the real thing.

How are non-EU family members evaluated?

European free movement law is structured to ensure that the EU citizen has a clear path to move to another EU country.   (Many of the ECJ court decisions enabling free movement rights for family members are justified, in large part, because restricting the rights of family to accompany the EU citizen will discourage the EU citizen from exercising their free movement right).

The non-EU family have a right to be with their on-the-move EU family members, and have the same rights to work or study or access the resources of the host member state.

When free movement is the topic, the law centres around the EU citizen.

• Family members can get a free visa, to be issued “as soon as possible and on the basis of an accelerated process”, as long as they will be travelling with or joining the EU citizen.
• Family members can enter without a required visa as long as they are travelling with the EU citizen and are carrying proof of the relationship.
• Family members are entitled to a Residence Card when the EU citizen is exercising treaty rights.
• After a period in another host member state, family members can move back with their EU citizen family member to the EU citizen’s home country.

Never is the non-EU family member evaluated on or given preference because:

1. they are smart
2. they have been successful
3. they are working
4. they are rich or are paid lots
5. they are beautiful
6. they play chess well
7. of their age / sex / race / nationality

These things may or may not be important within a specific family, but they play no role in any free movement decision under EU law.

The SINGLE thing that qualifies non-EU family members to have free movement rights is that they are the family member of an EU citizen whom they will be travelling with.

Exception 1: The non-EU family member retains, in some situations, right of residence if the EU citizen dies or there is a divorce in a long-standing relationship.

Exception 2: the family member (and also the EU citizen!) can in theory be refused if they individually are a very specific threat to national security or to big public policy.  But this is rare and there is a high barrier for this being used to exclude people.

See also:  What does the EU citizen need to do?