I contacted the Citizens' Signpost Service last week and this was our correspondence:
Enquiry posted on
21/12/2009
Enquiry
69565: Dear Sirs/Mesdames,
These questions are with regards to my husband's rights under European Law:
We have permanent residence in the UK since Aug 2006, but the UKBA put an ILR stamp in his passport instead of a Permanent Residence Card sticker. We did not realise this until a few days ago.
When my husband's passport expired, he applied for NTL (transfer of conditions, it is used by ILR holders when they need their stamp in a new passport) in June 2009, with the help of a solicitor. Nothing was heard from them and in the beginning of autumn, we contacted our local MP for help. A letter went out from his office, but to this day they have not received a reply.
In October my husband's NTL application went from the Durham department to Liverpool, where they deal with all cases that have a connection with EEA. We got to know this when we called the UKBA enquiry line. We have not had a response from them why it has taken so long, neither by post nor on the phone.
This past week, when finally getting a hold of my husband's solicitor, we were told that the UKBA had sent two letters, one from November and the other from 1st December. These letters stated their thanks for the application for a Permanent Residence Card! But they need more proofs, namely my Swedish passport, our marriage certificate and proof of me exercising my treaty rights for the past five years.
My husband's solicitor did not understand why, so she was about to write to them asking they correct their mistake and treat this as a NTL application, since that was what we had sent.
I called the UKBA, and they said that because the indefinite leave was granted under European Law, my husband's case would be treated under it now also, and in European Law there is no such thing as a transfer of conditions, therefore the application would be treated as a new application for permanent residence.
After speaking to the UKBA I told the solicitor what I had been told, and she had to ask a colleague to get back to me. I have done a lot of research myself and we both came to the conclusion that the UKBA had issued the wrong permanent residence "document" to my husband. The implementation of Directive 2004/38/EC went through in April 2006 and all EEA applications were supposed to come under the new law from that day on.
My husband's permanent residence status can by law only be removed by being absent from the UK for over two years, yet a re-application for permanent residence can be refused on other grounds, effectively removing PR for other reasons than two years absence.
Re-applying for PR is not necessary, though. And we want to get out of the constant "immigration-limbo", with the stress of collecting evidence, submitting the correct documents in time, and then waiting for ages. My mother-in-law is eighty years old and has several medical issues, we haven't seen her for over a year and a half. My husband would like to start a business that would involve transiting several countries on the continent, at the moment he is at home suffering from depression.
With these rules/lack of processes, the UKBA has made "Permanent Residence" limited in time, to whenever a passport is replaced, and has put EEA-nationals and their family members into a more difficult situation than other residents because those with "no time limit" can easily have their stamps transferred through a very simple process.
My questions are:
*The passport contains an ILR stamp, not the PR sticker, can he travel without applying for a visa, considering he is a family member of an EU citizen? All the other requirements would be met (traveling with me, the spouse, and our marriage certificate)
*A PR card sticker should have been put in the passport, since the application was approved in August 2006, long after the new regulations of 30th April 2006 were enforced. Is there a way to make the UKBA rectify their mistake?
*Can the UK be held responsible for not following European Law by issuing the PR card as a sticker in the holder's passport, instead of a free-standing document?
*Does the UKBA have a right to ask for proofs other than our whereabouts since August 2006?
*Is there in European Law a process for when a passport is lost or replaced to have a new PR card sticker put into the new passport? Maybe this is a hypothetical question, if there are no other countries attaching the PR card to passports other than the UK, but these are the facts of how things are in the UK.
I highly appreciate your help and hope you can get back to me as soon as possible with positive answers to our dilemmas and problems.
Thank you very much, in advance.
Yours sincerely,
xxx xxx
Reply
Dear Mrs. xxx,
Thank you for your enquiry.
In response to your queries:
a) Article 5 of Directive 2004/38 -
http://eur-lex.europa.eu/LexUriServ/Lex ... 123:EN:PDF provides that a non-EU family member may travel to another Member State in the company of or to join an EU family member simply on production of a valid residence card in lieu of a visa. The problem with this is that many Member States have ignored this provision and continue to insist on production of a valid visa. For those which will accept the residence card, I am not convinced that your husband’s ILR will be accepted as a valid residence card pursuant to Article 20 of Directive. It would not be unreasonable for other Member States not to recognise your husband’s ILR as a permanent residence card and he would have no redress under EU law. If you planned to travel to other Member States on production of the ILR rather than the PR card, you would have to check with the Embassies of the countries to which you were travelling to ensure that the ILR would be acceptable and would constantly run the risk and worry that your husband’s ILR would not be accepted by an immigration official at the entry point.
b) To try to have the UKBA informally rectify the mistake with the PR sticker, I recommend that you refer the matter to SOLVIT which is an EU network established to quickly and informally resolve problems caused by misapplication of EU law by public administrations. The website address for SOLVIT upon which you will find further details of the service together with contact details for the Swedish and British SOLVIT representatives is
www.ec.europa.eu/solvit/
c) It would be open to you to take legal proceedings against the UKBA in relation to the mistake but it would be less stressful and cheaper if SOLVIT could simply resolve the problem for you at this stage.
d) The main requirement in relation to permanent residence is that the non-EU family members should have legally resided with the EU citizen in the host State for the past five years. It should not be necessary to produce proofs other than those which confirm your husband’s residence with you for the requisite five years. Again, this is a matter which you may wish to raise with SOLVIT.
e) Unfortunately, there is something of a gap between the issue of passports and residence cards. Member States are responsible in relation to their own passport policy i.e who is granted a passport, procedures when lost or stolen etc whereas EU law regulates in relation to the grant of residence cards. Therefore, there is no EU law in relation to replacement of passports. However, you may also be able to raise the issue that the residence cards granted by the UK are not in conformity with those provided for under Article 10 or 20 of Directive 2004/38.
It is also open to you to lodge a formal complaint on the matter to the European Commission. A standard complaint form together with guidelines for completion are available on the following website:
http://ec.europa.eu/community_law/your_ ... rms_en.htm
For further information on the application of Directive 2004/38, you may wish to browse the following guide:
http://ec.europa.eu/commission_barroso/ ... _ec_en.pdf
I trust that this information is of assistance to you.
Yours sincerely,
Citizens Signpost Service
Further steps
The Citizen's Signpost Service has examined your enquiry and considers that the matter could be referred to SOLVIT.