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.

 

The 6% who are opposed

On November 30 2013, the Observer reported: “Poll of France, Germany, Poland and the UK shows British hostile to EU, and other nations hostile to Britain“.  The overall results of the poll were predictable, but the details are especially interesting.

Page 17 of the detailed results are about the UK, and include questions about the impact of EU membership on tourism and travel:

For 8% of respondents, EU membership has a negative impact on “tourism from other countries“.  Free movement law allows EU citizen tourists to travel without a visa, thus making it easier for tourists to visit the UK.  Would those 8% prefer fewer tourists from other member states in the EU?  Ouch!

Even more interesting is the 6% who think EU membership has a negative impact on “travel to other countries“.   In this case, EU free movement rules simply allow British tourists to travel to other member states without first obtaining a visa.    Do 6% think this free movement of British people is a bad thing?

It is wrong to interpret these results literally.  Nobody rationally thinks restricting the free movement of  British citizens would positively impact their travel to other countries.

Perhaps the 6% are so opposed to EU membership (and possibly free movement) that they will close their ears to the details of the question and simply answer “Bad!”.

If so, it shows a sizeable base of British people polled are fundamentally opposed to the EU, and those 6% are probably not convincible,

Methodology note about the poll: The survey was conducted using “online surveys among samples of general consumers in each of the UK, France, Germany and Poland“.   It is worth considering how an “online survey” of self-selected participants might slew the results.  Also, “general consumers” would include not only citizens of the country, but also EU citizens who are living and working in that host member state, and third country nationals.

EEA refusals: Public policy, public security and public health

If you are an EU citizen, you have a right of free movement which comes from the original treaties of the EU.  You can move to another EU member state, and your family members have a right to come with you.   For 99% of people in the EU, this is the whole story.  There is no permission required to move or travel to a host member state, and the host member state can nether refuse you entry nor tell you to leave (although you typically will have to work or be self-sufficient if you want to stay for more than 3 months).

Chapter VI of Directive 2004/38/EC is the key section: RESTRICTIONS ON THE RIGHT OF ENTRY AND THE RIGHT OF RESIDENCE ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH

Article 27 – General principles

1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.

How does a member state, such as the UK, transpose this? 

UKBA has released their European Operational Policy Notice EOPN 01/2013 Assessing applications in accordance with public policy, public security or public health [FOI source] which codifies the (January 2013) UK approach to this part of the free movement directive.    It takes the general principles of Article 27 (above) and makes them a little more concrete for use by staff.  This EOPN is in fact a quite decent review of both the general principles and law surrounding refusal of entry into a member state, and more generally what is required for the normal issue of every Residence Card to a non-EU family member.

The main focus is understandably on people with a history of serious criminal activity.  There is even a lovely colourful map to help guide staff in the direction of a decision.

Some general UKBA guidelines for applying Article 27, and codified in Regulation 21, are outlined on page 6:

• The decision must not be taken to serve economic ends.
• The decision must comply with the principle of proportionality; For example, refusal action against a person who has committed a single minor offence would not be proportionate.
• The decision must be based exclusively on the personal conduct of the  person concerned;
• The personal conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
• Matters isolated from the particulars of the case or which relate to considerations of general prevention/deterrence do not justify the decision. Decisions must not be made based on considerations of general deterrence, “general preventative grounds” or “general risk”. They must, save in a small number of extremely rare cases, be based on the actual threat posed by the individual concerned;
• A person’s previous criminal convictions do not of themselves justify the decision so you cannot rely solely on a person’s past convictions as the basis on which to take a decision. However an example of where previous convictions might be relevant is in circumstances where the applicant is a persistent offender and his offending is escalating in seriousness. Here, the pattern of offending could potentially provide evidence of genuine, present and sufficiently serious threat.

There is lots of detail in the document, but a couple of things stand out.   Entry refusal has to be about the personal behaviour and ongoing threat of a specific person.  It has to be proportionate.  And it can not be taken to serve economic ends.

If you have a criminal history, they must have been serious crimes you have been convicted of and given prison time for.   Public security and  public health are barely mentioned, rarely invoked, and UKBA would likely want to retain the flexibility the comes with not having written policy.

Barring re-entry for 12 months for EU nationals who are sleeping rough or begging (or their family members) 

It is hard to reconcile  the content of the EOPN 01/2013 with a Guardian article from Nov 27, 2013 entitled EU migrants: David Cameron sets out more benefit restrictions

In the package, Cameron announced […] any EU national sleeping rough or begging will be deported and barred from re-entry for 12 months “unless they can prove they have a proper reason to be here, such as a job”.

How might this possibly work to legally to bar an EU citizen from re-entry to the UK for 12 months because they were at one point homeless and/or begging?

Prof. Elspeth Guild writes, in the generally excellent summary, Cameron’s Proposals to Limit EU Citizens’ Access to the UK: Lawful or not, under EU rules?

Deporting rough sleepers and barring their re-entry

This is also a problematic proposal. The first group of people who cannot be subject to deportation and an entry ban for rough sleeping are those EU citizens who are working or seeking work in the UK. Some recent studies indicate that homelessness among working EU citizens in a host state is an increasing problem resulting from low pay and high costs of housing. This problem needs to be tackled by assuring that they obtain at least the minimum wage and assistance to find housing. Secondly, as EU citizens are free to move and reside anywhere in the EU for three months without hindrance, they should not be subject to deportation and a re-entry ban just because they are sleeping rough. The Directive does permit member states to extinguish the right of residence of EU citizens where they are an unreasonable burden on the social assistance system. But sleeping rough is not such a burden, indeed it is not a burden on the social assistance system at all. Indeed, sleeping rough does not cost the social assistance system of a member state any money thus it cannot be a burden according to the Court of Justice.

Similarly, barring re-entry to the UK would not be justified in such a case as it is a fundamental interference with the right of free movement. The third group is that of EU citizens who have been in the UK for more than three months but are not working, seeking work or otherwise economically active. Here there is a lack of clarity on whether they are still exercising their rights as EU citizens and thus are entitled to a right of residence.

Previous UKBA policy notes on the same topic

Previous policy notes were less detailed and less generally interesting to read, but do contain details about the Criminal Casework Directorate (CCD) making deportation decisions

• 21st December 2011 EOPN:  Refusals of documentation on public policy or public security grounds
• 10th April 2012 EOPN : Interim Policy Instruction – PNC Checks in European Casework

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.

Border officials cannot require answers to immaterial questions

ECJ case C-68/89 Commission v Netherlands [1991] makes clear that EU citizens are not required to answer border officials’ questions about the purpose and duration of their journey, nor about how much money they have for the journey.

Though this particular case concerned an EU citizen, the ruling applies equally to border officials, such as United Kingdom Border Agency ECOs, who issue the visas that enable free-movement of family members of EU citizens.  If it is prohibited to require of the EU citizen, then border officials cannot bypass that prohibition by simply requiring that same information instead from their accompanying non-EU spouse.

Moreover, these questions are no more relevant for a family member then they are for an EU citizen.   The conditional free movement rights of the non-EU family member derive directly from their relationship to the EU citizen (MRAX, paragraph 74).    The visa is a formality to pre-validate the family relationship and facilitate the applicant’s travel arrangements.

The visa does not depend on assets the applicant has, or on what they plan to do during the trip.

Refusal to answer such not-material questions cannot justify curtailing the applicant’s right of free movement (see “Restrictions on freedom of movement”).

ECJ case C-459/99 MRAX v Etat Belge [2002] is clear that what is required for entry of the family member who does not have a required visa is two things: proof of their family relationship (e.g. a marriage certificate) to the EU citizen and proof of their identity (e.g. a passport).   There is no requirement outlined that the family member must answer non-material questions of the border official.

NOTE: This post was originally written as part of a complaint to the European Commission about UKBA (the British immigration agency) handling of EEA Family Permits, hence the references to the UK.   But each EU member state must reflect ECJ court decisions in their national law and practice, and do so faithfully to the original decision.  This case and European free movement law applies equally in each of the 27 member states!

Entry and initial residence in the host member state

There is no restriction on an EU citizen’s entry to another EU member state, except as outlined in the section “Restrictions on freedom of movement”.   The same applies to the non-EU family member who is travelling with them.

The EU citizen is not initially required to be exercising their treaty rights, as a worker, self employed, student, etc…

Neither the EU citizen nor their non-EU family member need have money, be working anywhere, or even to have what the British call “prospects”.  They do not need to have a destination address, or fixed plans for travel.   Just grand ideas to be in another member state!

You can see this in practice when British citizens use their EU free movement rights to go to Spain, whether on holiday or to live there.   It does not matter whether or where they are employed.  It does not matter if they have assets or cash.  They can move freely and simply, without any conditions.  These same rules apply to citizens of each member state, and to their family members.

If you are also British, then you are only British!

UKBA’s new EEA regulations (The Immigration (European Economic Area) (Amendment) Regulations 2012) state that when an EEA national is also British, then the EEA free movement regulations do not apply to them:

“EEA national” means a national of an EEA State who is not also a United Kingdom national. (regulation 2, as amended)

This amendment of the definition of an EEA national reflects the ECJ’s judgment in the case of C-434/09 Shirley McCarthy v Secretary of State for the Home Department. (from the Explanatory Note at the bottom)“

Ms. McCarthy, in case C-434/09, was (1) not working or otherwise exercising any treaty rights and (2) had not previously asserted her Irish citizenship in a practical way, e.g. by holding an Irish passport.  The court held that EU free movement law did not apply to her or her family.  In their conclusion, the court limits the judgement to somebody:

“who has never exercised his right of free movement,  who has always resided in a Member State of which he is a national and who is also a national of another Member State”

These three careful qualifications of the ECJ judgement are entirely missing from these new UK regulations.   UKBA has taken an extremely broad interpretation of the judgement!

Does it matter?

I know a lovely Dutch family who lives in the UK. They do all the curious things you might expect of Dutch people, such as skating on frozen canals, taking camper vans to far corners of the world, and eating Hagelslag on toast.  They have two children who were born in the UK.  Each child has a Dutch passport and clearly thinks of himself as “European”.

We can assume they are also very likely British, because they were born in the UK to working European parents.

Under UKBA’s new interpretation of McCarthy, UKBA simply ignores the Dutch citizenship of each child for the purposes of free movement.   According to UKBA, the entirety of the European free movement regulations simply no longer apply.

Should the children someday marry a person who is not from the EU, UKBA claims their spouse would not have a European right of free movement to enter the UK.   Their only remaining free movement option would be if the Dutch child had worked in a different EU member state and was now “returning” to the UK on the basis of EU law (ECJ 1992 Surinder Singh case).

On what basis could these Dutch children themselves enter the UK?  Remember that UKBA claims the European free movement regulations no longer apply to them, including Regulation 11 (on Europeans entering the UK).   Good news is that if UKBA claims they are British, then they can always enter the UK even without a passport.

This rule also has significant implications for any EU citizen who decides to naturalize as a British citizen.  Once naturalized, EU free movement law will no longer apply to their family members.  Any family member will be required to enter the UK on the basis of traditional British law.

A Polish worker in the UK who naturalizes to be British after working and living in the UK for 6 years may be surprised to find that because of naturalizing, UKBA has disqualified them from using the free movement options they should have to bring their elderly parent(s) to the UK.

On a lighter note, a fun thought-experiment suggests this could solve other problems for UKBA.  It gives UKBA the ability to eliminate all family member free movement to the UK and easily meet their “public commitments” to reduce immigration, all with only one act of parliament. Remember that citizenship policy is solely determined by each member state. Parliament could legislate that all citizens of other EU member states are now also British citizens. Instantly none of their family members would be able to enter the UK on the basis of EU free movement law (since each EU citizen is now also British!).  And if any of those dual citizens does still come, they would do so as a returning British citizen, making the net immigration statistics even better.

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