Hi Guys,

Taking Sebastian's suggestion, I wrote to the EU commissions.
I've pasted my query and their reply below. So basically, I should legally have my passport back by now but if they keep holding on to it, what can you do?

I've just made a complaint to SOLVIT.

Maybe I'll also get in touch with an immigration lawyer...does contacting your MP help at all?

Enquiry
43698: I am an American married to a German and moved to the UK 5 September 06. We both work in the UK and I've submitted my EEA2 application on 12 Feb. 07. I have not received my endorsed passport after 6 months as of today, 23 Aug. I called the Home Office and said that they were now in breach of EU law, which states, "EU law requires that a decision on the issue or refusal a residence permit must be made as soon as possible and in any event within six months."

The HO rep said that the EU law had 'changed' and due to 'unexpected volume of application, it is taking 'slightly longer' than normal. I called to speak to someone different. He said that the EU law is not a law but a 'guideline'.

More bemusing, the 'up-to-date' processing time for EEA2 application on HO website says they are working on March 07 applications. Where does my February application fall into this?

My application details:
5 Sept: Came into UK from Germany
12 Feb: Submitted my EEA2 application
21 Feb: Letter of application receipt from HO dated 21 Feb.
20 Aug: Called to say application is now on 6th month day. Informed them that they are now in breach of EU law. They said the 'law has been changed' and it will take 'slightly longer'. Called a second time, the EU law is, in his words, a 'guideline'.
21 Aug: Sent in fax to Complaints Unit and European Directorate offices. Detailing my case and when I could expect my passport to be returned.
22 Aug: HO complaints unit lady called, asked for my application details (though all was listed in my fax to her). She said she'll put a case worker on it, who will look into it within 4 weeks. She will also forward fax to the 'appropriate branch'

Main concern:
Is the Home Office correct in interpreting EU directives as a 'guideline'?

Am I legally entitled to have had my passport back?

What can I do to get it back?

Thank you so much for any help you could offer. There are web-forums with people having similar over 6 months problems.

Many many thanks,

Kazuko


Reply
Dear Mr Morohashi,

Thank you for your enquiry.

As you correctly point out, an application for the issue of an EEA family permit should be completed within 6 months from the date that you applied for your residence permit.

This results from Directive 2004/38 which is legally binding on the United Kingdom authorities, although the Directive needs to be implemented in the UK.

The rules on residence are contained in Directive 2004/38, which you will find online:
http://europa.eu.int/eur-lex/lex/LexUri ... 4L0038R(01):EN:HTML

You can find out more about your rights under Directive 2004/38 from this official EU information memo:
http://europa.eu/rapid/pressReleasesAct ... anguage=en

National authorities are under a legal obligation to fully and correctly implement Directives into national law.

In the event that national authorities fail to implement a Directive either fully or correctly, the European Court of Justice has recognised that individuals may rely on provisions of a Directive which have “direct effect”.

In order for a provision of a Directive to have direct effect, it must clear, unconditional and must not allow the national authorities any discretion in its implementation. Article 10(1) (Issue of residence cards) lays down a clear unconditional obligation on member states to process applications for residence cards for non-EU family members (called EEA family permit by the UK authorities) within 6 months.

The European Court of Justice has consistently held that provisions of EU law that take precedence over national law and it should also be noted that the right to an EEA family permit is determined by EU law, not the regulations. As a result the UK authorities cannot unilaterally decide to extend the 6 months period at their discretion.

The UK’s Immigration (EEA) Regulations 2006 implement the Directive in the UK:
http://www.opsi.gov.uk/si/si2006/20061003.htm

Regulation 17 (Issue of residence card) states that:
“ 17. —(1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of—
(a) a valid passport; and

(b) proof that the applicant is such a family member.”
…

(3) On receipt of an application under paragraph (1) or (2) and the documents that are required to accompany the application the Secretary of State shall immediately issue the applicant with a certificate of application for the residence card and the residence card shall be issued no later than six months after the date on which the application and documents are received.

It is therefore clear that, as a matter of both EU law and UK law, the UK authorities are required to process applications within 6 months.

You should also note that you can apply for your passport to be returned to you (without this affecting your original application):
http://www.ind.homeoffice.gov.uk/applyi ... fpassports

Since, there appears to have been a breakdown in procedure within the immigration authorities and the deadline for the issue of your residence card has expired, we suggest that you contact SOLVIT, the EU’s on-line problem-solving network to see if they can assist in resolving the issue.

http://europa.eu.int/solvit/site/index_en.htm

We encourage you to make use of their on-line complaint form:
https://webgate.ec.europa.eu/solvit/ind ... anguage=en

You should feel free to contact us if this does not resolve your situation.

We hope this answers your query.