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EEA Immigration Application: Claim Compensation for Losses Suffered As A Result of Home Office Delays

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Hana Zewdu v SSHD – Opening the Door for Compensation for Home Office Delays

The case of Hana Zewdu v SSHD - CO/6067/2013, decided late last week, finally put a nail in the coffin to the decision by the high court in AB v Home Office, where it was held that a claimant was not entitled to damages in cases involving the Home Office failing to act in accordance with its EU obligations.

This opens the door for applicants who experience delays when applying for a Certificate of Application to claim damages from the Home Office for losses suffered as a direct result of the length of time taken to process the application.

In the case of Hana Zewdu v SSHD , the claimant had applied for a Certificate of Application under the Zambrano decision, as she was the sole and primary carer of her British-born child. Mr Justice Green found that the Claimant was legally entitled to be issued with a Certificate of Application by no later than 10th October 2011 and that she was entitled to a decision upon her Zambrano application by no later than 25th March 2012.

The Claimant is also fully entitled to recover costs (likely to be substantial as the case went on for just over two years) from the Defendant on an indemnity basis.

Zambrano Applications Explained

The case of Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09, had Immigration lawyers jumping up and down with excitement a few years ago.

The reason?

Because the European Court of Justice declared that Article 20 of the Treaty on the Functioning of the European Union, required member states to grant a right of residence to a third country national, who was the primary carer of an EU national, if a refusal to would result in the EU national being forced to leave the EU. This was also held to apply to EU nationals who had not left their member state, i.e. it would apply to the parents of British nationals.

Under British law, to submit a valid Zambrano application the applicant must provide evidence of:

  • The fact that the dependent National is a British citizen;
  • The relationship between the applicant and the British citizen; and
  • The dependency between the applicant and the British citizen (this dependency must extend beyond mere financial dependency).

The Decision in AB v Home Office

This case concerned Ms C, a Bolivian national, who entered the UK as a student in 2006. Soon after arriving she met Mr B, a Swedish citizen who had lived in the UK since the mid-1990s. In May 2007, their daughter was born and, as the baby girl was given Swedish citizenship, she was, like her father, a migrant Union citizen. Ms C’s student visa expired in January 2008: in March 2008 she applied to the Home Office for an EEA residence card citing the existence of a durable relationship with Mr B, a Union citizen and at that time a migrant EU worker as grounds for granting the application.

Although the Home Office initially granted Ms C a residence card, her Certificate of Application, sent in April 2008 failed to arrive and by October 2009 she discovered that her application had hardly progressed at all. In February 2010, she was only able to re-enter the UK with her EU citizen daughter by seeking Asylum. By August of that same year, the residence card had still not been received by the claimant. Shortly after this, Ms C launched proceedings in the Epsom County Court against the UK Border Agency for damages and the case was transferred to the Queen’s Bench in October 2010.

The Court ruled that the delays surrounding the non-deliverance of the residence card were acts of maladministration. They could not be seen as sufficiently manifest or constitute a grave enough disregard by the Home Office of its EU law obligations as to give rise to a claim for damages.

The Home Office has subsequently relied on the decision in AB v Home Office to defend damages claims for cases concerning delay very successfully, despite the fact that once grounds of appeal were submitted to the Court of Appeal, the Secretary of State for the Home Department retracted and awarded the family £37,500 for losses flowing from the delay by the Home Office in issuing timely decisions.

The Impact of the Latest Decision of Hana Zewdu v SSHD

As a result of last week’s decision, clients should now be advised to issue a Letter Before Action if:

a) They have been waiting for a Certificate of Application on any application for EU residence documentation for more than two weeks; and/or

b) They have been waiting for a final decision on any application for EU residence documentation for more than six months.

The Letter Before Action should additionally summarise the nature and extent of any loss suffered by the applicant as a direct result of the delay.

If you have experienced delays in any EEA Applications submitted to the Home Office, our experienced team can assist you in claiming compensation. Our solicitors work closely with all of our clients regarding their EEA Residence Card Applications, Family Members and Retained Rights and Appeal applications. If you need any assistance and advice, please phone our London office on 0207 936 9960 to make an appointment with us.

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