On 30 August 2016, the Home office published their amended policy guidance; Processes and procedures for EEA documentation applications, Version 4.0, 30 August 2016: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/549168/Processes_and_procedures_for_EEA_documentation_applications_v4.0.pdf
The guidance now contains an addition as regards the section on ‘Requests to expedite EEA applications’. Within the same guidance, is also an existing procedure to request that the Home Office reconsider a refused EEA decision.
(1)EXPEDITION REQUEST PROCEDURE
6months time scale:
Regulation 17(3) of the EEA 2006 Regulations states that a residence card must be issued to a non-EEA national who is a family member of a EEA national who is a qualified person, or has a permanent right of residence within 6 months of receiving an application and can provide:
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a valid passport
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proof that shows the applicant is a family member, as claimed.
Regulation 17(3) applies the same timescales to non-EEA national family members who have retained a right of residence, when they produce:
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a valid passport
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proof the applicant is a family member who has retained the right of residence
Regulation 18(2) states that a person who is not an EEA national who has a permanent right of residence must be issued with a permanent residence card no later than 6 months after the date of the application and proof the person has such a right is received.
The addition in the 30th August 2016 guidance:
The 30th August 2016 Version of the guidance is stated to have been completely redesigned and reformatted in line with new processes. The most relevant addition within the guidance is the section on ‘Requests to expedite EEA applications’.
Applicants may contact the Home Office directly, or may ask their MP or a minister to make enquiries on their behalf. Requests must be considered on the basis of the evidence submitted.
Information to be included in the request:
When submitting a request for a case to be expedited, an applicant must include the following information:
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full name
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date of birth
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date of application
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Royal Mail Recorded Delivery number (if applicable)
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method of payment used when making the application (card, cheque etc)
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case ID or Home Office reference (if known)
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date of planned removal (if applicable)
Where the applicant is detained awaiting removal:
In cases where the applicant is detained pending removal, it will usually be appropriate to expedite a case where the applicant is a non-EEA national who claims to be the family member of an EEA national exercising Treaty rights, and the removal decision was not made under the Immigration (European Economic Area)
The guidance states that it will not normally be necessary to expedite an application where the removal decision was made under the EEA Regulations. This is because in line with regulation 20(1A), a removal decision made under the EEA Regulations cancels any outstanding application for EEA documentation. Therefore the application does not need to be considered.
Exceptional circumstances:
There may be exceptional, compelling circumstances that would merit an application being expedited. Examples of grounds which could be considered exceptional, compelling circumstances include:
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family emergencies such as bereavement or serious illness
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the need to travel for essential medical treatment overseas
In all cases, documentary evidence of the exceptional, compelling circumstances must be provided. The guidance states that family celebrations such as weddings and holidays are not generally considered exceptional, compelling ‘family emergencies’ which would merit expediting an application.
The application cannot be considered until the applicant has enrolled their biometrics.
(2)THE RECONSIDERATION PROCEDURE
In some cases, it may be appropriate to reconsider a decision to refuse documentation or to issue a certain document where an applicant or their representative has requested the Home Office to do so.
Appropriate Cases:
Reconsideration would be appropriate when:
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the applicant or representative raises a point of law – this could include accusations that the wrong regulation has been applied to the refusal
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the applicant or representative raises a challenge to Home Office policy – this could include where the wrong policy has been applied or the policy itself is alleged to be unlawful
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the applicant or representative has rightly drawn attention to the fact that evidence alleged not to have been provided in support of the application was actually with the Home Office at the relevant time
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new and compelling evidence was submitted before the refusal decision was dispatched that would, if it had been considered at the time, have led to documentation being issued.
Inappropriate cases:
Reconsideration would not be appropriate when:
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the applicant or representative requests a reconsideration without putting forward any substantive arguments
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the applicant or representative submits documentary evidence after the refusal decision has been issued
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the applicant or representative asks for reconsideration on a different basis than the original application (for example under Article 8 of the European Convention on Human Rights)
Lodged Appeal:
Where the applicant has already lodged an appeal but they have asked for the decision to be reconsidered, this must be refused and the applicant advised by the home office caseworker to pursue their appeal through the proper channels.
In cases where the applicant or representative does not request a reconsideration but the case is withdrawn, prior to the appeal being heard, by the Presenting Officer, or in cases where the appeal is heard and allowed to the extent that it is remitted back to the Secretary of State for a reconsideration, these are dealt with separately and must be forwarded to the Sheffield Post Decision team.
Outcomes:
Where it is agreed to reconsider, the Home office senior caseworker must allocate the reconsideration to a different caseworker than the original deciding officer. This will make sure that the case has been looked at with a fresh pair of eyes. However, when a request for reconsideration comes from a caseworker error, the case should be returned to the original caseworker.
If, after reconsideration, it is decided to maintain the refusal, the caseworker must write to the applicant or representative explaining why this is justified and their options for challenging the decision.
CONCLUSION
In line with regulation 17(3) of the EEA regulations, on receipt of an application for a residence card and the documents that that are required to accompany that application, a Certificate of Application(COA) must be issued ‘immediately’. Where issued, the “long” COA permits an applicant to accept offers of employment in the UK or continue in employment whilst the application is under consideration and until the applicant is issued with residence documentation or if the application is refused until appeal rights are exhausted. The COA will however also state that the home office expect to make decisions on residence cards/permanent residence cards/derivative residence cards within 6months from the date of application. The COA will further state that after this date, the employee should be asked to present their residence documentation as evidence of continuing eligibility to work or continue in employment in the UK. The problem however is that the Home Office sometimes takes much longer than 6months to decide EEA applications and where an applicant is in employment, the delay and any failure to issue a further COA places their job at risk. Some employers may or may not make further checks directly with the home office following expiry of the 6months despite an EEA application still being undecided. The expedition procedure can therefore also be utilised by an applicant to request expedition of an EEA application in order to elicit, hopefully, a positive decision so as not to render the initial right to work provided via the COA illusory.