Breach of EU jobseekers’ right of residence by Belgium – EU Rights Clinic and FEANTSA send complaint to the European Commission

The EU Rights Clinic and FEANTSA have lodged a formal complaint today to the European Commission against Belgium for non-compliance with the ruling on the rights of EU jobseekers handed down by the EU Court of Justice in Case C-710/19 G.M.A. in December 2020.

The complaint by the EU Rights Clinic and FEANTSA addressed the ongoing non-compliance with EU law by the Belgian Immigration Office in its refusal to register the right of residence of jobseekers on the basis that they have not demonstrated a genuine chance of finding employment in the first six months of their residence, even if they can prove they are genuinely looking for work.

The application of the offending legislation remains a problem in practice, with jobseekers continuing to be refused registration of their residence by the Belgian Immigration Office. In view of the fact that this situation has persisted in Belgium for several years (see here and here), our complaint urges the Commission to take a strong enforcement stance and bring formal infringement proceedings against Belgium under Article 258 of the Treaty for the Functioning of the European Union.

In 2016, Mr. G.M.A.  who is a Greek national applied to register his residence as a jobseeker. However, the Belgian Immigration Office subsequently refused G.M.A. permission to stay for more than three months, based on the fact that he could not provide evidence of having a genuine chance of being engaged, according to the Immigration Office in Belgium.

With the support of the EU Rights Clinic and FEANTSA, Mr. G.M.A. appealed against the decision before the Belgian courts, which referred the matter to the EU Court of Justice for a binding legal opinion on the interpretation of the relevant EU rules.

On 17 December 2020, the EU Court of Justice handed down its judgment in case C-710/19 G.M.A regarding the interpretation of the EU rules on the free movement of workers.

In its ruling, the Court explicitly ruled that the Belgian authorities cannot require jobseekers to demonstrate that they are seeking employment when they first register and has held that the obligation to provide a “genuine chance of being engaged” may only legitimately be imposed on jobseekers after they have been given a “reasonable period of time” to find work, which should generally be at least six months.

Belgium legislation has still not been amended to address the issues of non-compliance identified by the Court of Justice EU in its ruling. As a result, Belgian law still requires EU jobseekers who apply for registration of their residence to demonstrate not only that they are looking for work but also that they have a genuine chance of being engaged, in direct contravention of the ruling.

In conjunction with the complaint submitted today to the Commission, the EU Rights Clinic and FEANTSA will also be submitting a petition to the European Parliament and to the national authorities in Belgium including the Federal Ombudsperson and the Federal Migration Centre Myria.

You can read the executive summary of the complaint.  

The EU Rights Clinic is a collaboration between ECAS and the University of Kent in Brussels. As part of the project led by FEANTSA on Protecting the Rights of Destitute EU mobile Citizens, which is funded by EPIM, the EU Rights Clinic is engaging in strategic litigation in respect of breaches of free movement rights in EU Member States which affect EU citizens who are at risk of destitution.

EU Rights Clinic seeks your views in EU Settlement Scheme survey

The EU Rights Clinic has launched a survey to identify recurring issues with the EU Settlement Scheme.

Following the United Kingdom’s exit from the EU, the Withdrawal Agreement aims to protect the rights of EU nationals living in the United Kingdom. Pursuant to this Agreement, as well as agreements reached with EEA countries and Switzerland, the UK has introduced the EU Settlement Scheme, which enables EU, EEA and Swiss nationals to apply for a special immigration status that allows them to remain in the UK after  Brexit.

Since the scheme was opened for applications, numerous issues have been reported (examples can be found here, here, and here) and extensive reports highlighting problems have been produced by the3million and the University of York’s EU Rights and Brexit Hub among others.

In view of these problems, the EU Rights Clinic is currently conducting a survey (which can be found here) on the EU Settlement Scheme and its application to date. The aim of this survey is to obtain data on applicants’ experiences with the scheme, which may then be used to file official complaints with theIndependent Monitoring Authorityand theEU institutions.

Possible issues include, but are not limited to:

  • Technical issues, such as the application not being available on specific phone operating software, problems scanning the ID documents or non-biometric passports, problems with accessing the website, problems in proving presence in the UK, etc.
  • Covid-19-related issues, especially those caused by the various lockdown phases and the restrictions on international travel which may have impacted on the ability of EU citizens to return to the UK.
  • Issues caused by the use of a “digital status” and the lack of a physical residence card, which makes it difficult for EU, EEA, and Swiss nationals to prove their status in the UK .

If you have applied, or intend to apply, or are not yet sure about applying to the EU Settlement Scheme, we would like to hear your views and experiences. If you are an adviser or legal representative, we would also welcome you sharing the details of any problems your clients may have encountered when applying for EU settled or pre-settled status.

We would greatly appreciate you taking the time to participate in this survey. Your experience will contribute to our research into the larger picture of how successfully the rights of EU, EEA, and Swiss nationals have been protected post-Brexit.

Any data obtained through the survey will be treated confidentially, and no personal information will be mentioned in any formal complaint. All results obtained through this survey will be presented in an anonymous fashion.

For further information on the survey, and how to participate in the survey itself, please follow this link: https://kent.onlinesurveys.ac.uk/euss-survey. If you have any questions or concerns about answering the survey or the survey itself, please contact us at rights.clinic@ecas.org

EU Rights Clinic focusing on systematic breaches of EU free movement rights

A re-orientation towards strategic litigation and advocacy efforts has been underway at the EU Rights Clinic since 2019. The aim is to focus our efforts on more targeted action against systematic breaches of EU free movement rights by national authorities which create visible and hidden barriers to European citizenship rights.

As a result of this change in focus, a request for individual advice will only be taken up where there is a clear opportunity for strategic litigation or to support on-going advocacy efforts. All other requests for legal assistance are now referred to Your Europe Advice in the first instance.

Strategic Litigation

The objective of strategic litigation is to bring cases before the national courts – wherever possible seeking the intervention of the EU Court of Justice – to challenge systematic breaches of EU free movement rights committed by the Member States.

The cases taken on by the EU Rights Clinic tend to represent specific instances which are reflective of a wider pattern of systematic administrative or judicial practices that obstruct or restrict the exercise of free movement rights of EU citizens and their family members.

The Clinic currently has six live appeals pending before the Belgian, French and UK courts.

Three of these cases are on final appeal before the Belgian Council of State.

Examples of on-going strategic litigation undertaken by the EU Rights Clinic include:

  • Jobseekers: challenging an expulsion order issued against a Greek citizen on the basis that the person did not find work within five months of his arrival in Belgium. The case relates to the length of time which a jobseeker should be permitted in order to find work as well as challenging the limited scope of judicial appeals in residence-related cases. The case was filed in 2016 before the Belgian Council for Alien Law Litigation and subsequently appealed before the Belgian Council of State in 2018. The case has been referred to the EU Court of Justice for a preliminary ruling in Case C-710/19 G.M.A..
  • Family reunification: challenging a refusal to grant a residence card to a French partner of a Belgian citizen on the basis that the couple did not have sufficient resources. The case focusses on the failure of the Belgian Immigration Office to make an individual assessment of the couple’s resources. The case was filed in 2017 and is pending before the Council for Alien Law Litigation.
  • Permanent residence: challenging a refusal by the French authorities to grant a permanent residence card to a British citizen. The case relates to the imposition of a minimum resource requirement on a self-employed person. The case was lodged in 2018 is pending before the Administrative Tribunal in Rennes.

Further opportunities for strategic litigation which have been identified include national practices that impose a narrow definition of the status of a worker (particularly part-time workers) or a narrow interpretation of how jobseeker demonstrate a genuine chance of being engaged, as well as the refusal to allow homeless persons to register and the refusal to accept permanent residence status regardless of possession of a residence card. It is also anticipated that future strategic litigation efforts will extend to post-Brexit rights of British citizens residing in the EU and EU citizens in the UK.

Advocacy efforts

The objective of the Clinic’s strategic advocacy efforts is to encourage the EU institutions to monitor and prosecute systematic breaches of the EU rules on the free movement of persons.

The Clinic continued its advocacy efforts in respect of the following cases:

All of the above petitions were also the subject of formal complaints to the European Commission requesting the launch of formal infringement proceedings under Article 258 TFEU against the Member State concerned.

Hearings were last held by the European Parliament in October 2019 in which all petitions submitted by the Clinic were discussed. Following debates, the Committee on Petitions resolved to keep every petition open. The Committee also agreed to write to the national governments to enquire what is being done to resolve these issues. Attendance of hearings in person in 2020 has been suspended due to the COVID-19 pandemic.

Future advocacy efforts will relate to on-going investigations being conducted by the Clinic, including breaches of the Withdrawal Agreement by the UK and other Member, EU data protection laws as regards mobile EU citizens’ rights and breaches of the simplified visa rules which should benefit their non-EU family members by several EU member states.

Research, outreach and dissemination

The Clinic is currently involved on a research project examining residence formalities in Belgian municipalities on behalf of the Belgian federal migration agency, Myria.

In addition, the work of the Clinic has featured in an article authored by the Clinic’s founder entitled “EU Citizens’ Rights in Practice: Exploring the Implementation Gap in Free Movement Law” which was published in the European Journal of Migration and Law, one of the leading academic peer-reviewed publications in this field of EU law.

The Clinic continues to get involved in outreach efforts. Recent activities include presentations at AMA (the Belgian federation for homeless shelters), the Civic Observatory on the Rights of EU Citizens (CORE), the ELSA summer school in migration law held at the University of Kent, the Università degli studi di Palermo and Equinet (the European network of equality bodies).

UK denies right to vote to EU citizens in European Elections 2019

#DeniedMyVote

Following on from numerous press reports (see here, here and here, with analysis here), the EU Rights Clinic has started receiving complaints from EU citizens who were refused their right to participate in elections to the European Parliament.

EU citizens have reported being turned away from polling stations throughout the UK on 23 May 2019 even though they had registered on the electoral roll.

It appears the reason for this was that councils had not been able to process registrations on time given that EU citizens were required not only to register on the electoral roll, but also to submit Form UC1 containing a declaration that they would only vote in EP elections in the UK.

This was an additional formality that did not apply to British citizens wherever they might live.

The imposition of such an additional formality is clearly discriminatory given that Article 22(2) of the Treaty on the Functioning of the EU provides that every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State”.

The complaints received by the EU Rights Clinic are presently being analysed with a view to submitting an official complaint to the EU institutions.

We also invite you to lodge an official complaint with your local electoral registration office.

If you have been affected, please do get in touch to share your experiences with us by email to rights.clinic@ecas.org with the title “EP elections 2019” – please include your full name, post code and council where you voted, as well as details of your experience.

EU Rights Clinic challenges France’s systematic failure to comply with EU residence formalities

In a complaint submitted today to the European Commission, the EU Rights Clinic has challenged France’s breach of EU law in its duty to issue residence documents to EU citizens.

The complaint points to the systematic failure of French municipal authorities to issue residence documentation to EU citizens. The complaint is being raised in view of the risks posed to the ability of British citizens to continue living in France after Brexit.

The complaint contains details of over 20 individuals lawfully residing in France who have been refused residence documents contrary to EU law. Under EU law, the national authorities are required to issue residence documentation to those EU citizens who request them. The documentation should be valid for five years or more. However, the individuals concerned were either wrongfully issued with a residence card valid or with a reduced period of time, or they were simply turned away.

The complaint reveals various practices among local municipalities, pointing to multiple interpretations of French rules and confusion among French officials. While France does not require its EU citizens to register, residence documents allow EU citizens to prove their lawful residence in the country and apply for permanent residence after five years.

This is particularly important in the context of Brexit, because British citizens run the risk of being refused residency after the UK leaves the EU if they cannot prove their lawful residence in an EU country. Additionally,  British citizens are often told that their case will not be treated until after Brexit. However, EU law remains effective for as long as the United Kingdom remains a Member State of the EU.

Such failures also impact British citizens’ entitlement to access other public entities such as job centres and child benefit offices, as well as their ability to carry out administrative procedures such as registering a vehicle.

The EU Rights Clinic has demanded that the European Commission take robust enforcement action against France to ensure it complies fully with EU law. A petition will also be lodged in parallel before the European Parliament.

Read the Executive Summary of the complaint here

The EU Rights Clinic is a collaboration between ECAS and the University of Kent in Brussels. As part of the ACT for Free Movement project, funded by EPIM, the EU Rights Clinic is investigating cases of breaches of free movement rights in EU Member States.

Deal or no deal: the rights that will be lost with Brexit

This article first appeared on Europe Street News © all rights reserved by Europe Street News.

Deal or no deal? That is the question. Despite the promise that nothing will change for them, both EU nationals living in the UK and British residents in the rest of the EU are to lose out from Brexit. The situation could even be worsened if there is no agreement on the terms of the UK’s departure from the European Union. The failure of talks at the EU summit in Salzburg this week did not offer assurances in this regard, leaving people whose status depends on EU treaties in a troubling state of uncertainty.

This is an overview of what can happen to the rights of 3.7 million EU citizens who are living in the UK and 1.2 million British citizens who are living in another EU country after Brexit. As inconceivable as it was before the EU referendum, the overview shows the rights preserved and lost under the draft “deal” published in March and in the event of “no deal”.

In short, the right to family reunion, the ability to exercise professional activities across countries and to participate in political life, will be weakened under the draft withdrawal agreement. But in the case of “no deal”, there will be even heavier consequences in terms of potential loss of acquired pension rights, free or subsidised healthcare when travelling and ability to provide services across borders.

Free movement rights

Entry without visa. People covered by the withdrawal agreement will continue to move across EU and UK borders without a visa and their non-EU family members will be issued visas for free through an accelerated procedure. In the event of “no deal”, UK nationals who hold a residence card from any EU country will be able to travel within the EU without the need for a visa. Similarly, EU nationals who hold settled or pre-settled status in the UK will not need a visa to enter the country. However, non-EU family members will no longer benefit from visas free of charge.

Residence, work and study. The rights to reside, work and study in the current country of residence are preserved in the withdrawal agreement. However, EU nationals in the UK will have to apply for settled status (also reported here) and be subject to criminality checks, instead of benefing from the automatic entitlement to residence deriving from EU treaties. EU countries may also introduce similar requirements for British residents, but no Member State has so far expressed an intention to do so. The requirement for non-economically active citizens to have “comprehensive sickness insurance” to attain permanent residence will not apply for EU citizens seeking settled status in the UK, but has been carried forward for UK nationals living in the EU. A “no deal” is not expected to reverse the UK decision to introduce the new settled status for EU nationals (also reported here), but domestic immigration laws will apply to British citizens in EU countries, instead of the more generous rules under the withdrawal agreement.

Family reunion. Under the withdrawal agreement, family members (including close relatives, partners in a durable relationship, and other persons whose presence is required, such as carers) irrespective of their nationality, can join people covered by the withdrawal agreement in the country of residence, as long as the relationship existed before 31 December 2020 (the end of the Brexit transitional period). Future family members (except children) will face tougher immigration laws if their relationship begins after 31 December 2020. In the event of “no deal”, family members of EU citizens in the UK will benefit from the new settled status only if they are already in the UK. British citizens living in the EU will have to comply with the family reunification rules of the EU country of residence.

Non-discrimination. People covered by the withdrawal agreement will continue to enjoy equal treatment with nationals as regards employment, working conditions, university tuition fees and all other social and tax benefits. In the event of “no deal” the right to non-discrimination will be governed by national law. EU citizens in the UK who obtain the new settled status should be able to benefit from full access to work and public funds, as is presently the case for persons with ‘indefinite leave to remain’ (the permanent residence status for non-EU nationals). The situation of EU citizens with pre-settled status is unclear. By becoming ‘third country nationals’ under EU law, British citizens in the EU will be able to benefit from some more limited rights to non-discrimination.

Continuous free movement in the EU. British nationals in the EU will lose this right, unless it is negotiated as part of the future EU-UK relation. As ‘third country nationals’ who are long-term residents, the Schengen rules would not provide them an unfettered right  to move to another member state. EU citizens will obviously maintain the right to move freely within the EU.

Resuming residence after a period abroad. People covered by the withdrawal agreement will be able to leave the host country for up to five years without losing their residence status. This is more generous than the two years currently allowed under EU law, but is not comparable to the life-long right provided by free movement rules. An absence of more than five years means protection under the withdrawal agreement is lost and resuming residence would require complying with national immigration laws. A “no-deal” is not expected to reverse the decision to introduce the new settled status and allow an absence of up to five years for EU citizens in the UK. The right for UK nationals in the EU would be covered by Schengen rules or by national rules for countries not part of the Schengen area. The Schengen rules allow long-term residents an absence of 12 months.

Return to home country with non-EU family members. The right of EU and UK nationals to return to the home country and take up residence with their non-EU family members is not protected in the withdrawal agreement, although it has been recognised by a high profile ruling of the European Court of Justice. This means that a British national having resided in the EU will no longer be able to claim the automatic benefit of EU residence for non-EU family members, if they return to the UK after 31 December 2020. Similarly, more onerous rules may apply for EU citizens with non-EU family members returning from the UK, which will be at that point a ‘third country’. “No deal” would mean this right will no longer exist from 30 March 2019 (for British citizens returning home, possibly at a later date whenever the UK authorities revoke the Immigration (EEA) Regulations 2016).

Social security rights

Social security and pension coordination. People covered by the withdrawal agreement (including EU nationals who worked in the UK in the past, or vice versa) will continue to benefit from the current rules on social security coordination, including the aggregation of contributions for state pensions. The indexation of British pensions paid to residents of EU countries will continue. In the event of a “no deal”, UK nationals in the EU and EU nationals in the UK could benefit from protections provided by bilateral agreements or by the Council of Europe’s Interim Agreements on social security. But these protections are more limited, more complex and do not cover all EU countries, potentially putting at risk the acquired rights to receive a state pension for thousands of past and present mobile citizens.

Export of social security benefits to other EU countries. The withdrawal agreement preserves the exportability of benefits. In the event of a “no deal”, a similar situation to social security and pension coordination will apply.

Healthcare. The right to healthcare forms part of the protections of social security rights under the withdrawal agreement. The European Health Insurance Card (EHIC), which allows necessary care when travelling throughout the EU and the UK, will remain in use for people covered by the withdrawal agreement. But in the event of “no deal”, EHICs issued in the UK will no longer be accepted in EU countries and vice-versa.

Work rights

Recognition of professional qualifications. Under the withdrawal agreement, the recognition of qualifications that enables UK and EU professionals to practise across borders without having to re-train remains in place. This concerns all regulated professions, such as engineers, architects and nurses. However, there are some limitations regarding lawyers practicing under their home professional title (e.g. a solicitor qualified in Scotland who works in Paris without having converted to a French ‘avocat’). Another limitation applies to British citizens in Europe who will lose the right to recognition of their professional qualifications beyond their host country. The situation of frontier workers is unclear. The recognition of professional qualifications gained after Brexit will depend on the future trade relation. In the event of “no deal”, the arrangements concerning the recognition of professional qualifications would no longer apply. However, professional qualifications held by EU citizens in the UK would continue to be recognised until the UK regulations which give effect to EU rules (under the EU withdrawal act) are repealed or amended.

Establishing business. The right of EU citizens living in the UK to establish businesses is protected under the withdrawal agreement, as well as the rights of UK nationals to establish a business in their country of residence. The right of UK nationals to establish a business in another EU country after Brexit, however, will depend on the future trade relation. In the event of “no deal”, UK nationals living in the EU would be subject to the national rules of the country where their business is set up, knowing that a business set up in an EU country is considered an EU entity. EU citizens living in the UK would be free to establish themselves in other EU countries.

Cross-border services. The right to provide cross-border services (that is offering services to people or companies based in another country) will depend on the future trade relation. This affects both EU citizens with an established business in the UK and UK nationals with a business in their country of residence. In the event of “no deal”, the right to provide cross-border services would cease to exist.

Judicial rights

Referral to the European Court of Justice. Under the withdrawal agreement, EU citizens in the UK will retain the possibility to refer cases on the interpretation of their rights to the European Court of Justice for a period of eight years following the end of the transitional period. The European Commission will monitor the application of the withdrawal agreement in the EU, while an independent authority will be established to fulfil this role in the UK. This body will have the power to receive complaints from EU citizens living in the UK and their families, conduct inquiries on its own initiative and bring legal actions before the UK courts to seek remedy. But a joint committee supervising the implementation of the agreement will decide, eight years after the end of the transition period, whether to abolish this authority. These judicial safeguards would no longer benefit EU citizens in the UK in case of a “no deal”, but UK citizens in the EU would continue to be able to refer to the European Court of Justice.

Political rights

Participating in municipal elections. The right to vote and stand as candidates in municipal elections has not been preserved by the withdrawal agreement because it is linked to EU citizenship, which will be lost by British nationals once the UK leaves the EU. A “no deal” would not change this situation. The British government said it intends to negotiate the right to vote in municipal elections bilaterally with EU member states. Some countries, like Sweden, guarantee the right to vote in municipal elections to long-term residents regardless of their nationality. British citizens who have resided out of the UK for more than 15 years also lose their right to vote in the UK, which means they could be left with no voting rights at all depending on the country where they live. EU citizens in the UK may be able to vote in municipal elections in their country of origin, depending on the national electoral framework. EU directives do not cover the right to vote in general elections.

Participating in European elections. Deal or no deal, British nationals will lose the right to elect members of the European parliament and stand as candidates in European elections. EU citizens in the UK will maintain this right depending on the rules in their home country, but they will no longer have the choice of voting in the local British constituency, thus reducing the proximity to their representatives.

Start and participate in European Citizens’ Initiatives (ECIs). British nationals will lose the right to submit and take part in this form of petition to call on the European Commission to make legislative proposals. EU nationals residing in the UK will only be able to take part in ECIs in their home country if this is permitted under the national rules giving effect to ECIs.

Petition EU institutions. Any EU citizen and any person residing in an EU country can petition the European parliament, submit complaints to the European Commission, request access to EU documents or, in cases of maladministration by EU institutions, complain to the European Ombudsman. British residents in the EU will be able to continue to do so, as well as EU citizens residing in the UK. Nothing will change in this respect in the event of “no deal”.

Consular protection in third countries. British citizens will lose the right to seek consular protection from other EU states in third countries. EU citizens will continue to benefit from consular protection from other EU states in third countries where their home Member State has no consular presence. A “no deal” would not affect these rights.

Other issues

Other personal rights. There are various other personal rights which protect consumers and workers as part of the EU’s single market rules. These include employment rights, such as working time, parental leave or health and safety conditions at work; consumers rights, such as guarantees and returns for goods, compensation for travel delays or the ban on international payments surcharges; the mutual recognition of driving licenses; and protections related to financial services, for example on the portability of private pensions or minimum terms of insurance cover. All these rights will depend on the future trade arrangements between the UK and the EU.

Application to the EEA. The EU’s free movement rights apply also to citizens of Norway, Iceland and Liechtenstein, as they are members of the European Economic Area and form part of the single market. The EU withdrawal agreement does not cover these countries but the UK is negotiating citizens’ rights separately with them.

The rights of Irish nationals. Irish citizens will be subject to a separate, and more favourable, regime that was already in place before the UK and Ireland joined the EU.

Future rights of UK nationals in the UK. The situation of UK nationals who move to an EU country after Brexit and the future rules governing the rights of EU citizens who move to the UK are yet to be agreed and are therefore not covered here.

Claudia Delpero in collaboration with Anthony Valcke, Founder and Supervising Solicitor of the EU Rights Clinic

This article first appeared on Europe Street News © all rights reserved by Europe Street News.

Once again Sweden fails to comply with EU rules, says EU Rights Clinic.

The EU Rights Clinic has again referred Sweden to the European Commission for its failure to abide by EU law.

In a second complaint to be filed against Sweden in under a year, this case relates to the failure of the Swedish Migration Agency (Migrationsverket) to issue residence cards to non-EU family members of EU citizens within the deadline of 6 months laid down by EU law.

The evidence collated by the EU Rights Clinic and its partner Crossroads in Göteborg shows that it can takes up to two years for the Migrationsverket to process such applications for residence cards submitted by non-EU family members of EU citizens.

The delay in issuing residence cards is affecting the ability of non-EU family members to lead a normal life in Sweden. The affected family members cannot prove their right to work, they are unable to leave Sweden while awaiting their residence card, and the state of uncertainty caused by excessive delays is leading many to anxiety and even depression.

In previous cases involving similar delays in processing applications in Ireland, Spain and the UK, the Commission opened official infringement cases against these Member States, which eventually led those countries to take the necessary measures to comply with the six-month deadline.

The EU Rights Clinic is urging the Commission to take similar robust enforcement action against Sweden, including launching formal infringement proceedings before the EU Court of Justice in the event Sweden fails to take swift action to remedy the situation.

You can read our executive summary of the complaint.

If you or your family member have suffered similar delays in obtaining your residence cards, or if you would like to lend your support to the EU Rights Clinic’s complaint, please let us know using the following form.

The EU Rights Clinic is a collaboration between ECAS and the University of Kent in Brussels. As part of the ACT for Free Movement project, funded by EPIM, the EU Rights Clinic is investigating breaches of free movement rights in EU Member States. This complaint was submitted in cooperation with Crossroads of the Göteborgs Kyrkliga Stadsmission. Together, the EU Rights Clinic and Crossroads Göteborg have received 20 complaints from affected EU citizens and their family members.

BACKGROUND

  1. According to EC Directive 2004/38, EU citizens and their family members – whatever their nationality – have a right to reside in any EU country. Where family members do not possess the nationality of an EU country, they are required to apply for a residence card. This residence document should be issued to them within a deadline of six months which is set by EU law and also contained in Swedish law.
  2. The delays in issuing residence documents to family members is made apparent on the website of the Migrationsverket, which contains information on the average time it takes for applications for residence documentation to be processed. The website confirms that it can take anywhere between 16 to 24 months for the Migrationsverket to take a decision on applications for residence cards made non-EU family member of a EU citizen.
  3. The evidence collated by the EU Rights Clinic and its partner Crossroads of the Göteborgs Kyrkliga Stadsmission illustrates the systematic failure of the Migrationsverket to meet the six-month deadline in respect of any kind of application for residence documentation made by non-EU family members. The delays have been reported in several publications since 2013.
  4. The obligation to issue residence cards and permanent residence cards to non-EU family members within six months is contained in Articles 10 and 20 of EC Directive 2004/38. These obligations have been correctly transposed by Swedish law, as stated in Chapter 3a Section 7 of the Swedish Alien Ordinance (Utlänningsförordning 2006:97). However mere transposition into national law is not sufficient for meeting an obligation to implement a directive under EU law; the objective prescribed must be met both in law and in fact.
  5. In a case involving delays in Spain in 2003, the Commission brought infringement proceedings before the Court of Justice which resulted in a ruling by the Court that the Spanish authorities had failed to fulfil their obligations under EU law (Case C-157/03).
  6. More recently, in 2009 and 2011, the Commission launched formal infringement proceedings concerning extensive delays in the issuance of residence documentation by the Irish and UK authorities. The Commission’s actions resulted in the elimination by the UK and Irish authorities of delays in processing applications for residence documents submitted by EU citizens and their families. Following the Commission’s intervention, the UK authorities put in place a comprehensive plan to reduce the backlog of cases, including the significant expansion of the number of caseworkers allocated to handle EU residence applications, as a result of which the time for handling new applications was returned to the appropriate six-month deadline required by Directive 2004/38.

EU Rights Clinic Petition Urges the European Parliament to Ensure Stronger Protection of Citizens’ Rights After Brexit

The EU Rights Clinic and 80 signatories have submitted a Petition calling on the European Parliament to take immediate action to address specific gaps and omissions in the draft Withdrawal Agreement concerning the protection of citizens’ rights in connection with Brexit.  **You can register your support for the Petition here.**

This follows up on our letter to EU Council President Donald Tusk which called upon the Council to instruct the European Commission to address those matters related to citizens’ rights which were not covered by the interim deal that concluded the first phase of negotiations in December 2017. Unfortunately, the Council has

In its response, the Council’s General Secretariat has merely indicated that “[t]he provisional agreement on phase one issues reflected in the Joint Report of 8 December 2017, contains clear commitments relating to citizens’ rights that will allow citizens and their family members to continue to live, work and study as they did before the UK’s withdrawal from the EU.

We have since enlisted the support of several MEPs at the European Parliament. Following a Written Question tabled by Julie Ward MEP, the reply received from Commission President Juncker simply stated that Surinder Singh and Zambrano family members were not covered by the Withdrawal Agreement.

Given the lack of progress in ensuring citizens rights are fully protected the EU Rights Clinic – together with 80 other signatories – has now submitted a Petition to the European Parliament.

In the Petition we have requested the European Parliament’s Petition Committee to hold a hearing as a matter of urgency and to issue a short motion for a Parliamentary resolution calling on the Council and the Commission to remedy the gaps and omissions in the draft Withdrawal Agreement.

Surinder Singh family members and Zambrano carers still excluded from the Draft Withdrawal Agreement

The draft Withdrawal Agreement still fails to address the rights of those family members of both UK and EU citizens who have returned to their home country after having resided in another EU Member State (Surinder Singh family members) during the transitional period.

Moreover, so-called Zambrano carers (non-EU parents of British children living in the UK) are also excluded from the list of citizens eligible for the UK’s proposed new EU settlement scheme.

Although the EU Rights Clinic received assurances from the UK Home Office that Surinder Singh and Zambrano family members would be covered by the “settled status”, the Statement of Intent released on 21 June 2018 regrettably does not address their situation in a satisfactory manner.

Clarity needed for inactive EU citizens and their family members

It is also essential for the Withdrawal Agreement to reflect the commitments made by the UK government regarding residence rights. While the UK government has made commitments on the matter – such as waiving the requirement for holding comprehensive sickness insurance – these need to be the subject of formal binding provisions in the draft Withdrawal Agreement.

The absence of such commitments from the draft Withdrawal Agreement is a likely source of anxiety and distress for EU citizens in the UK due to the uncertainty surrounding their binding effect on the UK government. Their inclusion in the Withdrawal Agreement would go a significant way to allay the fears of EU citizens and their family members in connection with their right to remain in the UK after Brexit.

Appeal rights need to be bolstered

The Withdrawal Agreement only provides for rights of appeal in connection with residence rights. Yet the scope of citizens rights covered by the Withdrawal Agreement is much wider and covers workers’ rights (Articles 22-24), professional qualifications (Articles 25-27) and social security rights (Articles 28-31). The Withdrawal Agreement needs to ensure such personal rights also carry an explicit right of appeal.

In addition, the Withdrawal Agreement must preserve access to the EU’s assistance services – SOLVIT and Your Europe Advice – for the benefit of EU citizens living in the UK and UK nationals living in EU 27, together with their family members, at the very least for the period of 8 years following the end of the transitional period specified in Article 151.

You can find the Executive Summary of the submitted Petition here.

You can register your support for the Petition here.

Appel à participation: Actors4Freemovement

C’est quoi ACT4FREEMOVEMENT ?

La campagne ACT4FreeMovement vise à transposer les décisions de la Cour de Justice Européenne sur la libre circulation des personnes dans des personnages théâtraux et à créer un cycle de sessions de formation théâtrale de trois demi-journées où les participants apprendront leurs droits au travers de jeux de rôles. Les participants seront initiés au langage et aux outils techniques légaux, ce qui les aidera à comprendre leurs droits à la liberté de circulation et de résidence et comment ils peuvent être appliqués.

Quel thème sera aborder ? 

La campagne de Bruxelles sera centrée sur les droits des citoyens non européens mariés avec des citoyens européens et, sur les parents européens ou non européens d’enfants nés sur le territoire belge. Nous discuterons des droits et des obstacles avec le directeur juridique de la EU Rights Clinic – un avocat spécialisé en la matière – et, de manière interactive, au travers d’une brève initiation théâtrale. Les participants seront appelés à retracer le parcours et la lutte menés par la famille Ruiz Zambrano, depuis leur arrivée en Belgique jusqu’à la décision finale de la Cour. Les participants seront introduits au fonctionnement du système juridique belge et apprendront les réflexes à avoir dans l’évolution de leur séjour.

Quand et où ? 

La campagne se déroulera en trois demi-journées en français (connaissance de base nécessaire)

23 Mai 2018 : 14h00 – 18h00
30 Mai 2018 : 14h00 – 18h00
5 Juin 2018 : 14h00 – 18h00

Lieu: GC Elzenhof : Av. De la Couronne 12 – 14 – 16 – 1050 – Ixelles – Bruxelles 

Qui peut participer ?

– Des citoyens non européens mariés avec des citoyens de l’UE ;
– Parents (UE ou non UE) d’enfants nés sur le territoire Belge ;
– Les citoyens de l’UE et de pays tiers intéressés à connaître leurs droits de résidence en Belgique ;
– Membres d’associations travaillant avec des migrants.

Comment participer ? 

Pour s’enregistrer veuillez envoyer votre nom, adresse email et votre numéro de téléphone à eleonora.nestola@yahoo.it

Comprehensive Sickness Insurance in the UK: How do you prove past healthcare coverage by another Member State’s social security system?

As the UK’s withdrawal from the European Union approaches, EEA nationals and their family members have been applying for permanent residence in increasing numbers.

In 2016, over 90,000 applications for permanent residence were submitted by family members and in 2017 this more than doubled to almost 215,000 applications (Home Office, Immigration statistics, October to December 2017).

However, the rate of rejection of applications was relatively high: in 2016 29% of applications were either refused or declared inadmissible, whereas in 2017 the rate of rejection was lower at 21%.

Unfortunately, we do not have reliable statistics to determine what proportion of these refusals is due to applicants not having held comprehensive sickness insurance during their period of residence in the UK.

Despite having made a specific request to the Home Office to publish this information, our request was turned down because the “requested data is not recorded for our statistical purposes thus; (sic) we cannot provide information on any of the above questions” (Home Office response to the EU Right Clinic’s FOIA request No 35185, 7 May 2015).

However, we know from the evidence submitted to the Brexit Committee of the House of Commons that the absence of comprehensive sickness insurance constitutes one of the main reasons for the Home Office to reject applications for residence documentation by EEA nationals and their family members (Exiting the European Union Committee, The Government’s negotiating objectives: the rights of UK and EU citizens (HC 2016-17, 1071) para 67).

So how can EEA nationals and their family members prove they have held comprehensive sickness insurance during their residence in the UK when they apply for permanent residence?

The Home Office’s Modernised Guidance “EEA nationals qualified persons”  sets out what documents are needed for permanent residence applications:

For applications for a document certifying permanent residence or a permanent residence card

They must provide one of the following documents or a combination of these documents covering their 5 continuous year’s residence in the UK:

•  a comprehensive private medical insurance policy document

•  a valid European Health Insurance Card (EHIC) issued by an EEA member state other than the UK (or its predecessor form E111)

•  form S1 (or its predecessor forms E109 or E121)

•  form S2 (or its predecessor form E112)

•  form S3

The definition of CSI [comprehensive sickness insurance] does not include:

•  cash back health schemes, such as:

o dental

o optical

o prescription charges

•  travel insurance policies

•  access to the UK’s NHS”

However, these documents are not the only way that EU citizens and their family members can prove they held comprehensive sickness insurance.

**Please note that, in practice, the Home Office’s practice means it does not always accept past coverage by another Member State’s healthcare system as evidence of comprehensive sickness insurance. You may therefore need to be prepared to appeal against any refusal by the Home Office to accept evidence of past coverage. In all cases we invite you to submit a copy of this blog post in your application**.

Another way to prove comprehensive sickness insurance includes past coverage under your home country’s social security system.

This will often benefit students who came to study in the UK and who remained covered by their home country’s social security system, but it might include others, such as those in receipt of an exportable benefit from another EU country or EEA state.

Past coverage under your home country’s social security system can be proved in a number of different ways that differ according to national practices:

•  Italian citizens who came to the UK to study and did not register with AIRE (Anagrafe Italiani residenti all’estero): they can prove this by obtaining a letter confirming their former healthcare coverage from their local healthcare institution (azienda sanitaria locale), if possible with a print-out confirming the dates when they held an Italian Healthcare Insurance Card (Tessera Europea di Assicurazione Malattia).

•  Bulgarian and Romanian citizens may be issued Structure Electronic Document S041 by their social security institution back home which confirms that their citizens remained covered by their home country’s social security system for a specified period of time and therefore were entitled to receive healthcare in the UK at the expense of their home country during that period of time – if you have been issued SED S041, you should download our practice note on SED S041 and include a copy in support of your application for permanent residence.

•  Dutch citizens may also be issued with the old Form E104 , which is a certificate showing periods of previous coverage by their home country’s social security system for a specified period of time and therefore were entitled to receive healthcare in the UK at the expense of their home country during that period of time – if you have been issued Form E104, you should download our practice note on Form E 104 and include a copy in support of your application for permanent residence. [link to document]

Separately, some EEA citizens may be able to invoke the existence of reciprocal arrangements concluded by the UK with individual Member States. The basis for this claim is the ruling by the Court of Appeal in Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988 in which Arden LJ held “[53] … It is common ground that if there were reciprocal arrangements with the EEA national’s own state that would be sufficient to constitute comprehensive insurance cover.” This would only benefit the following categories:

•  German citizens who can invoke Article 2 of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Federal Republic of Germany concerning the Waiving of the Reimbursement of the Costs of Benefits in Kind provided for Sickness, Maternity, Accidents at Work and Occupational Diseases, of Unemployment Benefits and of the Costs of Administrative and Medical Controls (Bonn, 29 April 1977), which waives any costs arising from medical treatment provided under the NHS to German citizens in the UK:

“(1) Reimbursement by the competent institutions of the Contracting Parties of the costs of benefits in kind for sickness, maternity, accidents at work and occupational diseases in accordance with paragraph 1 of Article 36 and paragraph 1 of Article 63 of Regulation (EEC) No. 1408/71 [now paragraph 1 of Article 35 and paragraph 1 of Article 41 of Regulation 883/2004] and of the costs of administrative and medical controls in accordance with paragraph 1 of Article 105 of Regulation (EEC) No. 574/72 [now paragraph 1 of Regulation 987/2009] shall mutually be waived.”

•  In addition, some EEA nationals who arrived in the UK before their country joined the EU/EEA may be able to rely on the more favourable provisions of reciprocal arrangements that are contained in bilateral social security conventions that effectively waives the requirement to hold comprehensive sickness insurance. This results from the so-called “Rönfeldt principle” laid down in the case law of the EU Court of Justice in Case C‑227/89 Rönfeldt EU:C:1991:52 and subsequent cases. This only benefits specific nationalities:

o   French nationals who were lawfully living in the UK before 1 January 1973 when the UK joined the EEC;

o   Portuguese and Spanish nationals who were lawfully living in the UK before 1 January 1986 when Portugal and Spain joined the EEC;

o   Icelandic and Norwegian nationals who were lawfully living in the UK before 1 January 1994 when Iceland and Norway joined the EEA;

o   Austrian and Finnish nationals who were lawfully living in the UK before 1 January 1995 when Austria and Finland joined the EU;

o  Czech and Slovenian nationals who were lawfully living in the UK before 1 May 2004 when the Czech Republic and Slovenia joined the EU.

In all cases, applicants should not forget to supply an English translation of any document which have been issued in another language.

The EU Rights Clinic is a partnership between ECAS and the University of Kent in Brussels. It helps EU citizens and their family members overcome problems they encounter when moving within the EU.

The EU Rights is grateful for the financial support it has received from the European Programme for Integration and Migration under its sub-fund on EU mobility.