Immigration analysis: Are the Home Office's new EEA forms misleading? Kitty Falls, solicitor at Dutton Gregory, looks at the new forms issued in February and considers why some parts may lead to confusion.
Is the use of the Home Office's EEA forms mandatory in residence document applications under the EU free movement law?
No 'specified' forms must be used for applications under the Immigration Rules but this restriction does not apply to people applying for confirmation of rights under European law. Confident applicants with straightforward cases may wish to try applying by letter - as long as information is supplied with appropriate evidence to prove the relevant requirements of the Citizens Directive 2004/38/EC are met, an application should succeed.
What are some key differences between the new EEA forms issued in February 2015 and the previous versions?
A big difference is that the new forms are extremely long and difficult to negotiate because:
- they attempt to cover a number of different kinds of applicants, and
- they ask for more information than is required under the Directive
For example, unmarried partners are told that they cannot apply on form EEA(FM), because under European law they are defined as 'other family members' whose relationship may be scrutinised before family-member status is confirmed. They should use form EEA(EFM). Because the forms are non-mandatory, using the wrong form should not be a big deal. However, this assumes that caseworkers have been properly trained and can extract the information they need from the 'wrong' form.
Seen in a positive light the new forms represent an attempt to cover situations which the old forms dealt with in a more piecemeal way. However, they are cumbersome and introduce more opportunities for an applicant to make more mistakes or become confused. At best this is likely to lead to delays in processing applications, at worst it could mean that applicants' European rights are breached, and they find themselves without the ability to work, open bank accounts, or rent property in the UK's 'hostile environment'.
What do you think about the legality of the new forms and can you give some examples of where they may be overstepping the administrative requirements of EU law?
Most obviously the forms give the impression that they are compulsory, when they are not. They use similar language to the Immigration Rules (for example, EEA(FM) uses similar language to 'Appendix FM' of the Rules, and the EEA national is referred to as the 'sponsor'). The EEA(FM) form is clearly out of line with O v Minister voor Immigratie, Integratie en Asiel, and another case: C-456/12  All ER (D) 141 (Mar) (O&B), but then so are the Immigration (European Economic Area) Regulations 2006, SI 2006/1003 themselves. For example, the Regulations and forms refer to the 'centre of life' test. Form EEA(FM) asks for documentary evidence of things such as sports or social club membership, language learning, and children's schooling. The Regulations and forms also require evidence of economic activity by the EEA national prior to relocation in the UK for people applying under the principles set out in Surinder Singh (R v Immigration Appeal Tribunal and Surinder Singh: C-370/90  3 All ER 798). By contrast, O&B makes clear that there is no 'centre of life' requirement, and an EEA national's prior studying or being self-sufficient in the host member state should also bring their family members within the remit of the Surinder Singh principle.
The form also requests a lot of extraneous details about things like the EEA national's place of birth, and the relationship history of married applicants.
For those applying from overseas for a family permit, using the online visa application system, there is no option but to answer many of these irrelevant questions because the online form is structured to prevent progress if certain boxes are not completed.
It is useful to go back to Directive 2004/38/EC, art 10 for a reminder that the requirement in most cases is for the family member to provide a current passport, proof that they are related to the EEA national (for example, a marriage certificate), and proof that the EEA national is exercising treaty rights (for example, recent wage slips).
What should practitioners advise their clients about these forms?
I would advise clients to use the forms if possible - I would not be confident that caseworkers always understand the law in relation to points like specified forms. However, where irrelevant information is requested, there is a judgement to be made about whether to supply it at all. A succinct covering letter will be important in many cases, to explain why certain documents have not been provided, and why they are not required.
Clients should be made aware that even if an application is correct in law, it will be time-consuming and expensive to challenge a refusal, even if the Home Office is clearly in the wrong.The forms will probably be challenged in the courts at some point, but your client might not want to be the person to bring that challenge!
Interviewed by Evelyn Reid, Lexis Nexis. You can get more articles like this from Lexis here www.lexisnexis.com/uk/lexispsl