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ILPA Raises Concerns over EU Applications for Permanent Residence

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The Immigration Law Practitioners’ Association (ILPA) has written a letter to Robert Goodwill, the Minister of State for Immigration, asking for an urgent meeting to address a number of pressing issues regarding EU nationals residing in the UK.

Following the result of the EU referendum on 23rd June 2016, EU migrants, many of whom have lived and worked in the UK for decades, have been facing uncertainty as to their future right to reside in Britain.

The IPLA has identified a number of problems facing not only EU migrants, but the system by which their right to remain in the UK may be processed. The organisation, which is a registered charity and comprises of Immigration barristers, solicitors and academics, also sets out some pragmatic solutions that they believe the Home Office will need to implement to cope with the influx of EU permanent residence Card applications over the coming months and years.

The background to the issues brought to light by Brexit

The ILPA points out in their letter that prior to the Referendum vote, most EU nationals living, working and studying in the UK had no reason to interact with the Home Office and many never thought about obtaining permanent residence status or becoming British Citizens.

However, since the government issued a statement on 11th July 2016, providing that “EU nationals who have lived continuously and lawfully in the UK for at least five years automatically have a permanent right to reside”, many have been anxious to secure their rights by obtaining a permanent residence Card.

This is not always easy. The terms ‘continuously and lawfully’ in the context of EU free movement means that the EU national residing in a foreign EU member state must be exercising his or her Treaty rights in accordance with the Citizens’ Directive 2004/38/EC. To be exercising Treaty rights, EU nationals residing in the UK must be either:

  • working
  • self-employed
  • studying
  • self-sufficient

The ILPA points out that there are many practical problems in providing evidence that they have been exercising their Treaty rights. Some applicants acquired permanent residency status many years ago but may not have subsequently worked for some time. This is especially true of those who choose to stay at home to look after children. Thus, they may have trouble collating the necessary documents that prove they have, in the past, exercised their Treaty rights in accordance with the Citizens’ Directive.

The requirement for comprehensive sickness insurance also causes much confusion. Many EU nationals residing in the UK as self-sufficient or as a student (the two categories in which comprehensive sickness insurance must be obtained) are unaware that they should have taken out cover. Unlike many countries, private medical insurance is not common in Britain and it is not advertised extensively. In addition, most EU nationals living in the UK have had no trouble accessing NHS services.

The size of the permanent residence application form

Another issue identified by the ILPA is the cumbersome size and complexity of the permanent residence Card application form. Currently it is 85 pages and requests a multitude of supporting documents be submitted.

The Home Office also requires that documentation presented to support the permanent resident application be original. This presents two problems:

  1. It can be very difficult to source original documents that date back many years. Businesses close, records are lost etc, making it near-on impossible to obtain original copies of supporting evidence; and
  2. Applicants are now waiting many months to have their applications processed and their documents returned to them. Not have a passport creates immense problems, especially for those with elderly or sick relatives abroad. In addition, third-country family members of EU nationals are facing dismissal or suspension from their jobs as they are not able to give their employers the documentary evidence showing they have the right to reside and work in the UK.

The ongoing delays in processing applications may result in landlords and employers beginning to unlawfully discriminate against renting property or employing EU nationals and their families. Both landlords and employers face harsh fines and even custodial sentences if they are found to be letting property or employing illegal immigrants. Even though EU nationals currently have a legal right to be in the UK, regardless of whether or not they have a permanent residence Card, overly-cautious landlords and employers who are unsure of the current policy following Brexit may refuse to offer them accommodation or Employment.

ILPA suggested solutions

In their letter to Mr Goodwill MP, the ILPA have suggested the Government take the following steps to manage the current increase in permanent residence applications, which are likely to increase again dramatically once Article 50 is triggered (this is likely to happen early next year).

  • increasing the number of EEA(QP) appointments in the Croydon Premium Service Centre and rolling out the service to other Premium Service Centre such as Liverpool
  • allowing EU nationals and their family members who are applying for permanent residence Cards to have Premium Service Centre appointments. These appointments are available for Indefinite Leave to Remain applicants so there is no reason why they should not be provided to those seeking permanent residence.
  • remove the condition that EU nationals and their families must have private comprehensive sickness insurance to retain the right of residence as a self-sufficient person or student
  • allowing notarised or certifies copies of documents to be sent to support applications for permanent residence Cards rather than requiring the originals
  • consider special arrangements for EU nationals who are retired to ease the administrative burden when they apply for permanent residence

In summary

It is hoped that this letter will jolt the Minister for Immigration into at least taking steps to clarify some of the issues surrounding permanent residence, (such as comprehensive sickness insurance) and putting in place policies and procedures to cope with the increasing influx of permanent residence applications and the delays in getting them processed.

Based in London’s West End, our expert team of solicitors are committed to delivering the best results for our Employment and Immigration clients. If you wish to receive legal advice on any of the points raised in this article, please phone our office on 0203 959 9123 to make an appointment.

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