Are EU Nationals the next Windrush generation?

25 / 04 / 2018

A wave of outrage has swept the media and Westminster in the past week, over the treatment of the Windrush generation and their family members. Squarely in the frame has been the Home Office and its  “Hostile Environment” policy. Those likely to have been affected were among the 57,000 non-UK  commonwealth citizens who came to the UK before 1971.

Many commentators were quick to point out that the scandal – covering a relatively limited number of cases – asks searching questions about the ability of the Home Office to handle the cases of 3.6 million  EU nationals now believed to be living in the UK. The European Commission can hardly have been re-assured as it seeks guarantees for EU citizens in the Brexit negotiations.

That lack of re-assurance is something I share. Earlier this year I submitted an application for a renewal of a permanent residence document for an American client married to an EU citizen. To be clear, she has been living legally in the UK as the spouse of an EU national for over 15 years. The couple had already proved their relationship, and proved that they were living in the UK together in exercise of Treaty rights.

The problem with permanent residence status is that, despite the name, the documentation is not permanent. It lasts for a period of 10 years only, after which new documentation is required.

So we submitted the application by special delivery post, taking great care to ensure that we included all of the required supporting documentation to prove that the lady concerned had been continuously resident in the UK for the 10 years since the original permanent residence status endorsement had been given.

And then we waited. Just over 3 weeks later we were surprised to receive a letter from the Home Office stating that the application had been rejected as the EU husband’s passport had not been included.

That was puzzling! The Home Office’s own guidance notes for this type of application specifically state that information on the EU spouse is not needed for the renewal of a permanent residence document.

I called the Home Office contact team. “Oh yes,” I was told, “you always have to provide the passport of the EU spouse. There is no way that the application can be considered without it.” I tried to explain to the caseworker on the phone that their own guidance made it very clear that this was not the position but I was quickly made to feel that the failure in understanding the process was my own.

Undaunted, I then called a different team. Yet again I explained the circumstances and yet again I was told that the passport of the husband had to be submitted for the application to be considered valid.

However, being a solicitor specialising in immigration law for over 20 years has its advantages. I gave up on the phones and sent a direct e-mail to personal contacts higher up the in the Home Office hierarchy .

Then we started to get somewhere. I received a reply within a few hours, asking for more details and promising an investigation. By the following morning I  – and more importantly my client – had received an apology, an agreement that the application could and should be processed without the husband’s passport, and a promise that the case would be put back into the processing pile at the same date point it would have reached had it not been for Home Office confusion.

We resubmitted all of the original documentation, repaid the element of the application fee that had been wrongly refunded and hoped that this time things would progress more smoothly.

But a week or so later we received another letter asking for a completed application form, payment of the application fee and the passports of my client and her husband.

Half a dozen e-mails later and another apology was issued, together with confirmation that the documentation and fee were in order and had already been received and that indeed the passport of the EU husband was not needed.

Dealing with the Home Office and its procedures for more than two decades does allow one to proceed with a certain confidence. I learned a long time ago that busy caseworkers – no doubt under pressure to quickly apply complex and constantly changing legislation – can and do get things wrong.

My client’s story has a happy ending. The renewed permanent residence card arrived this morning and is already on its way to her.

But what if the applicant had not been represented by a solicitor? What if I was an EU national applying for my own permanent residence card?

Would I feel put off? Would I feel that I had misunderstood what was needed? Would I feel that I had made the mistake and that clearly with all of these experts at the Home Office telling me that the EU passport was needed then surely it was – it’s their policy and system after all?

Would I be worried if my EU husband had died, divorced me or left the UK that my status was in jeopardy? What if my employer had told me that without  a current permanent residence card he would have to stop employing me. Would I be afraid?

Of course I would. And the stressed voices and faces of those caught up in the Windrush affair bear testament to the fear and economic loss that such mistakes can bring.

After the apologies and the policy u-turns of the Windrush scandal, we will no doubt hear siren voices telling us that lessons have been learned and that EU nationals and their family members will never be faced with a similar position.

But it would be wise to consider the potential scale of the problem. Let’s say that only one per cent of EU cases hit problems of this kind – that’s potentially more than 30,000 applicants and their families.

The Windrush scandal may just be the start.