High Court rules delays by the Home Office in issuing EU documentation are unlawful

Tuesday 9 June 2015

There is good news for those forced to wait for lengthy periods of time for the Home Office to issue applicants with EU documentation confirming their right to reside in the UK. Mr Justice Green, considering a test case on whether the Home Office was liable in damages for delays in reaching decisions on EU applications, today found that the delay of Secretary of State for the Home Department (SSHD) in reaching a decision on the Claimant’s claim for a Zambrano right of residence was unlawful. The Secretary of State conceded that she was therefore liable to pay damages for loss of earnings and for damages on an aggravated basis, as well as costs on an indemnity basis.

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As is well known, the non-European Economic Area (EEA) family members of EEA workers, the self-employed, students and the self-sufficient, are entitled to a right of residence in the UK in accordance with Directive 2004/38/EC, transposed into UK law by the Immigration (European Economic Area) Regulations. The Regulations provide that once an application under the Regulations is submitted to the SSHD, she is obliged to provide the applicant with a document entitled a Certificate of Application, immediately. This document gives the bearer a right to work in the UK. Next, the SSHD is required to make a decision on the application within six months (although this is recognised as an upper cap and should be used only where public policy issues arise).

But the Home Office frequently fails to comply with these time limits. In 2010, the European Commission raised concerns with the Home Office for their failure make decisions on EEA residence documentation within the limits set by Directive 2004/38/EC. The Commission was assured, however, that speedier decision making would take place in the future by the deployment of greater numbers of staff to consider EEA residence applications. In fact, nothing changed. In a report issued by the Independent Chief Inspector of Borders and Immigration[1], John Vine MP CBE QPM found that 39% of applications took more than six months to decide which was, in his view, not “acceptable performance”.

Attempts to claim damages for the failure to comply with these time limits, in accordance with the judgment of the Court of Justice of the European Union (CJEU) in Francovich were dashed by the decision of HHJ Salter QC in AB v Home Office [2012] EWHC 226 (QB). In AB v Home Office, the Judge characterized delays of this nature as acts of maladministration which were not a sufficiently manifest or grave disregard by the Home Office of its EU law obligations as to give rise to a claim for damages. This decision has been used by the Home Office to defend damages claims for delay cases very successfully, despite the fact that once grounds of appeal were submitted to the Court of Appeal, the SSHD backed down and awarded AB and his family £37,500 for his losses flowing from the delay by the Home Office in issuing timely decisions.

Today, however, Green J ruled that the delays in reaching a decision on the Claimant’s application for a derivative right of residence were unlawful and the Secretary of State conceded that damages were payable to the claimant (quantum to be assessed at a later date) for the failure to issue her with a certificate of application and the failure to reach a decision with six months, indirectly accepting that AB is no longer good law. The decision opens the path for other applicants to seek awards of damages for these unlawful delays.

Navtej Singh Ahluwalia was junior counsel to Tom de la Mare QC in the proceedings. Navtej, a member of the Garden Court Chambers Immigration Team, was instructed by Trevor Hatton of Duncan Lewis Solicitors.

[1] “The Rights of European Citizens and their Spouses to Come to the UK: Inspecting the Application Process and the Tackling of Abuse, October 2013 – January 2014: icinspector.independent.gov.uk/wp-content/uploads/2014/06/European-Casework-Report-Final.pdf

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