£55 charge for European Residence Documents

Robert Simpson made this Freedom of Information request to Home Office

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by Home Office.

Dear Home Office,

The Home office presently charges £55 to issue each of the four different types of European Residence Document. This charge has now been in place for more than a year.

Your explanatory memorandum http://www.legislation.gov.uk/uksi/2013/... explains that any such charge shall not exceed that imposed on British nationals for the issuing of ‘similar documents’.

This is a FOI request for documents (or other relevant material) that detail how the £55 fee meets the “similar documents” requirement of Article 25(2) of Directive 2004/38/EC. Specifically how was the fee chosen, and what are the benchmark British “similar documents”?

I request the complete document, and that each relevant document be properly identified with a name, and source.

If any part of any relevant document is legally with-holdable, I request that only the minimal with-holdable portion be redacted, that the size of the redacted text be specified, that a specific reason be given for each redaction, and that the rest of the document be released un-redacted.

Yours faithfully,

Robert Simpson

FOI Requests, Home Office

Thank you for contacting the Home Office FOI Requests mailbox.

The Freedom of Information (FoI) Act 2000 provides public access to
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within 20 working days as specified under the FoI Act

PLEASE NOTE

If you have a general immigration enquiry, or require an update on a
specific case, you should contact UKVI directly, contact information can
be found here:
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FOI Requests, Home Office

Robert Simpson

 

Thank you for contacting the Home Office with your request.

 

This has been assigned to caseworker (case ref 33709)

 

We will aim to send you a full response by 05/01/2015 which is twenty
working days from the date we received your request.

 

If you have any questions then please do not hesitate to contact us.

 

Thank you

 

FOI Requests

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FOI Responses, Home Office

1 Attachment

Please find attached, a letter about your Freedom of Information request.

Information Access Team

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FOI Responses, Home Office

1 Attachment

Please find attached, a response to your Freedom of Information enquiry.

Information Access Team

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Wayne Pearsall left an annotation ()

Rob, PLEASE, take this to the IT if you have to. I just got my Son and Daughters passport for just £46!!!! Isn't that what they base their charges on? (See correspondence with European Commission - https://www.whatdotheyknow.com/request/c... )

I've raised a complaint with the EC regarding the charge too. Obviously, more of us who have been affected should complain - maybe even raise a JR?

Wayne Pearsall left an annotation ()

Also: I'm sure that the EC request could be used as a basis to re butt their claim of S.35. ;)

Wayne Pearsall left an annotation ()

Oh and also, does the fact that a driving license only costs £34 now mean that they are reducing the cost of a RC - they based their charge on it afterall (and I know I can travel to the ROI with my license - so it gives me all the same rights as a RC would ;) ) https://www.gov.uk/apply-first-provision...

Wayne Pearsall left an annotation ()

Did you know they're increasing the cost to £65...

Dear Home Office,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Home Office's handling of my FOI request '£55 charge for European Residence Documents'.

You kindly provide a letter from European Commission’s Francoise LE BAIL which notes “In assessing compliance with EU law of the UK plans to introduce charges [...], it is fundamental to examine whether the UK adult passports are the appropriate comparator and that there are no other, better, documents.” She continues “Compliance of your plans with EU law can be assessed only on the basis of proper justification and in-depth analysis addressing the above issues.”

You have not provided any information as to whether such a fundamental examination has been completed. You have not stated what comparable documents you actually chose for the comparison or provided the analysis of why “there are no other, better, documents”.

You claim “it would not be in the public interest to disclose specific advice from policy officials and any internal exchanges setting out discussion, options and details of how the precise £55 fee was determined.”

To clarify, I am NOT particularly interested in “details of how the precise £55 fee was” chosen. I did request information relating to the validation of the chosen fee (in this case £55) against the statutory requirements of Directive 2004/38/EC Article 25(2).

My FOI request was for both (a) “the complete document” and (b) “that each relevant document be properly identified with a name and a source”. You have refused (a) on the basis of Section 35, but have not addressed part (b) of the request. Can I please have the complete list of the relevant documents and information about their source.

My request also asked “if any part of any relevant document is legally with-holdable, I request that only the minimal with-holdable portion be redacted, that the size of the redacted text be specified, that a specific reason be given for each redaction, and that the rest of the document be released un-redacted.” This was not done for the documents requested.

Was all the material individually reviewed as part of this FOI response, before being refused?

The refusal refers simply to “Section 35”. ICO is clear that “Section 35 actually sets out four separate classes of information. […] Departments should identify clearly which of the exemptions applies, and must explain the public interest balance for each one claimed.” This was not done for any of the material requested.

The “policy formation” stage happened almost two years ago. After policy formation was completed, the fees were announced to Parliament in March 2013 (“Explanatory Memorandum 2013 No. 617”), and fully implemented in April 2013. The “policy formation” phase is long past, though future adjustments of the fee level might occasionally be expected.

Section 35(2) of the FOI legislation is specific that “Once a decision as to government policy has been taken, any statistical information used to provide an informed background to the taking of the decision” can be released. Why has this statistical information and analysis not been released for this request?

I would anticipate that a separate analysis would have been done for each of the four different types of “EEA application”, which are issued to different types of applicant and which have different functions. Why was this analysis not provided?

I would anticipate that each analysis will have evaluated the cost and the “equivalence” of at least British passports (adult and child), drivers licenses (new drivers and renewal), birth certificates (initial and replacements). Why was this analysis not provided?

As the EEA documents is only valid for limited periods, I would expect they would have compared the cost per year of various British documents. Why was this analysis not provided?

The analysis would then use this to propose several different ways that “equivalent documents” might be chosen, for the purpose of identifying a specific “must not exceed” level. For instance, they might have assessed whether an adult drivers license or adult passport is a suitable “equivalent document” when an infant is applying for an EEA Residence Card. Why was this analysis not provided?

PIT WAS NOT PERFORMED PROPERLY

ICO says “Public interest arguments [for section 35 refusals] should focus on potential damage to policymaking from the content of the specific information and the timing of the request.” Neither the timing of the request (almost two years after it was announced in parliament), nor the specific information being refused was apparently evaluated in this PIT.

The PIT claims that “In the letters attached at Annex B, the Home Office has also disclosed details of guidance provided by the European Commission. The Home Office has therefore already disclosed some details of the legal framework under which the fee was set and the approach adopted in the interpretation of that framework.”

The attached two letters, one from the Home Office which asks several questions, and the European Commission reply, provide neither “details of the legal framework under which the fee was set” by the Home Office, nor any information about the ”approach adopted in the interpretation of that framework” by the Home Office. If there are undisclosed letters or documents which do provide “details of the legal framework under which the fee was set” and the ”approach adopted in the interpretation of that framework” then please release those as part of this FOI request.

FOI legislation 35 (4) is clear: “In making any determination required by section 2(1)(b) or (2)(b) in relation to information which is exempt information by virtue of subsection (1)(a), regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.”

The chosen £55 fee MUST meet the statutory requirements of EU free movement law. When the fee exceeds that of equivalent documents, then it is simply unlawful. If the fee was set at levels which are unlawful, then there is a compelling public interest in seeing the background to that decision. It might suggest there was wrongdoing, or raise issues of public policy and of failure of good government.

In addition unlawful fees would have caused direct damage to each applicant who has had to pay the fees, approximately 150,000 individuals. A substantial unlawful fee would also act as an impediment to prevent EU citizens (and their family members) from exercising their right of free movement, in a manner not allowed by EU free movement law.

There is a substantial public interest in releasing the information to show that there was in fact “informed background to decision-taking” in this case, and that the fee is in fact set at a lawful level.

It is evident from even a rudimentary analysis that the £55 fee for a 5 year validity Residence Card (for non EU family member of an EU citizen) dramatically exceeds the charges of obvious equivalent British documents.

A renewal drivers license costed £20 (10 year validity) at the time the fee was set (£2 per year), and is also equivalent in the sense that it confirms an existing right. A slightly more expensive learners first license is focused on the initial training of the new driver, and appears a less equivalent document. Even an adult passport, which arguably is NOT an equivalent document because it is a specialized travel document (which the applicant already has) costed £78 for 10 year validity (£7.80 per year). Prorated for 5 years, that would limit the fee to £39. I note, in passing, that the prices of each of those British documents have since decreased.

A British birth certificate, which can be used as proof of right to work for a British citizen, is arguably the most equivalent document and costs just £5 (with lifetime validity). Almost all UK born British citizens have one.

It is surprising that the “British nationality status letter” (which costs £88) is even mentioned. It is a uncommon special purpose letter which is issued after an extensive and detailed evaluation of whether the applicant has citizenship. It can only used for the applicant to subsequently apply for a British passport, and can not be used to prove a right to work in the UK. Though it is manifestly not “an equivalent document”, its high price and mention in the FOI refusal suggests it may in fact have been selected simply to for its high price.

It is quite plausible that the £55 fee exceeds the cost of almost all equivalent British documents, but there was a decision to go ahead with the fee at that level in any case. It would be rather embarrassing if that was the real motivation for the refusal to provide the requested information.

The second paragraph of the PIT reads: “Good government depends on good decision-making and this needs to be based on the best advice available and a full consideration of all the options without fear of disclosure. Ministers and officials need to be able to conduct rigorous, thorough and candid risk assessments of their policies and programmes including considerations of the pros and cons of all the available options without there being a fear of disclosure which might close off options and provide a barrier to good decision making.”

Most eloquent on this point is the ICO guidance for section 35, which reads as follows.

“194. The Commissioner accepts that the government needs a safe space to develop ideas, debate live issues, and reach decisions away from external interference and distraction. This will carry significant weight in some cases.

“195. The need for a safe space will be strongest when the issue is still live. Once the government has made a decision, a safe space for deliberation will no longer be required and this argument will carry little weight. The timing of the request will therefore be an important factor.

“197. Departments often argue that disclosure of internal discussions would inhibit free and frank discussions in the future, and that the loss of frankness and candour would damage the quality of advice and lead to poorer decision making. This is known as the chilling effect.

“198. On the other hand, civil servants are expected to be impartial and robust when giving advice, and not easily deterred from expressing their views by the possibility of future disclosure. It is also possible that the threat of future disclosure could actually lead to better quality advice.”

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/p...

Yours faithfully,

Robert Simpson

FOI Requests, Home Office

Thank you for contacting the Home Office FOI Requests mailbox.

The Freedom of Information (FoI) Act 2000 provides public access to
recorded information held by the department.

If you have submitted a valid FoI request, we will acknowledge your
request within 48 hours, and aim to provide the information requested
within 20 working days as specified under the FoI Act

PLEASE NOTE

If you have a general immigration enquiry, or require an update on a
specific case, you should contact UKVI directly, contact information can
be found here:
https://www.gov.uk/government/organisati... and
[1]https://www.gov.uk/visas-immigration

General enquiries should be directed to
[2][email address]  

 

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Communications via the GSi may be automatically logged, monitored and/or
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References

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Dear FOI Requests,

Can you please confirm that you have received my internal review request (case ref 33709) .

Yours sincerely,

Robert Simpson

FOI Requests, Home Office

Thank you for contacting the Home Office FOI Requests mailbox.

The Freedom of Information (FoI) Act 2000 provides public access to
recorded information held by the department.

If you have submitted a valid FoI request, we will acknowledge your
request within 48 hours, and aim to provide the information requested
within 20 working days as specified under the FoI Act

PLEASE NOTE

If you have a general immigration enquiry, or require an update on a
specific case, you should contact UKVI directly, contact information can
be found here:
https://www.gov.uk/government/organisati... and
[1]https://www.gov.uk/visas-immigration

General enquiries should be directed to
[2][email address]  

 

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Communications via the GSi may be automatically logged, monitored and/or
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References

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2. mailto:[email address]

Dear FOI Requests,

Can you please confirm that you have received my internal review request on 26 February 2015 (case ref 33709) and are doing the internal review.

Yours sincerely,

Robert Simpson

FOI Requests, Home Office

Thank you for contacting the Home Office FOI Requests mailbox.

The Freedom of Information (FoI) Act 2000 provides public access to
recorded information held by the department.

If you have submitted a valid FoI request, we will acknowledge your
request within 48 hours, and aim to provide the information requested
within 20 working days as specified under the FoI Act

PLEASE NOTE

If you have a general immigration enquiry, or require an update on a
specific case, you should contact UKVI directly, contact information can
be found here:
https://www.gov.uk/government/organisati... and
[1]https://www.gov.uk/visas-immigration

General enquiries should be directed to
[2][email address]  

 

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Communications via the GSi may be automatically logged, monitored and/or
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References

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Wayne Pearsall left an annotation ()

I'm liking your logic on this... but the child's passport being valid for five years is definitely more comparable than an adult passport. So even using the full cost of £46 it is cheaper than eea documentation....

Wayne Pearsall left an annotation ()

Rob. It looks like you've exhausted your internal complaints procedure rights...

Dear FOI Requests,

It has been more than a month since my 26 February 2015 request for an internal review of FOI case 33709. A copy of the request can be found at https://www.whatdotheyknow.com/request/p...

Is there a delay in the internal review, and if so what is the reason?

Yours sincerely,

Robert Simpson

FOI Requests, Home Office

Thank you for contacting the Home Office FOI Requests mailbox.

The Freedom of Information (FoI) Act 2000 provides public access to
recorded information held by the department.

If you have submitted a valid FoI request, we will acknowledge your
request within 48 hours, and aim to provide the information requested
within 20 working days as specified under the FoI Act

PLEASE NOTE

If you have a general immigration enquiry, or require an update on a
specific case, you should contact UKVI directly, contact information can
be found here:
https://www.gov.uk/government/organisati... and
[1]https://www.gov.uk/visas-immigration

General enquiries should be directed to
[2][email address]  

 

show quoted sections

Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.

References

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1. https://www.gov.uk/visas-immigration
2. mailto:[email address]

Wayne Pearsall left an annotation ()

They're busy discussing the fact that many a folk are picking up on the discriminative charging. Did you spot the new EEA(FM) form. The charge is £65 from April. https://www.gov.uk/government/uploads/sy...

"If you wish to include any children aged under 21 on this application form (see section 3), the fee increases by £65 for each child included. "

So let's assume that a passport IS a comparable document (we know it's not b/c MME Le Bail said it's not, but if it were). A Child's passport is £46. A Child's RC costs £65...? Their justification is? - I see a clear winner in the county court for a child's RC... and it isn't the Home Office is it...

Wayne Pearsall left an annotation ()

But alas, they aren't only increasing the application fee to £65 are they. They are adding a clearly unlawful charge for a BRP to be issued....

"Biometric information for non-EEA nationals: form
EEA(FM)
Note: this section applies to non-EEA nationals applying for a residence card only. Do not
complete this section if you are an EEA national applying for a registration certificate – proceed
straight to section 1 instead.
If you are, or anyone included in this application is, a non-EEA national applying for a residence
card, you must complete this section in full. If you do not, we may reject your application and
return it to you without consideration.
Introduction
In accordance with the Immigration (Provision of Physical Data) Regulations 2006 (as
amended), any non-EEA national applying for a residence card as evidence of their right to
reside under the Immigration (European Economic Area) Regulations 2006 (as amended) (‘the
EEA Regulations’) must give their biometric information (fingerprints and a digital photograph)
before their application will be considered. You must complete this section fully to ensure that
we have the correct information when you attend your biometric appointment.
When we receive your application, we will send you a biometric enrolment letter. This will
instruct you (and any non-EEA children included in your application) to make an appointment at
a designated Post Office to have your biometric information recorded. You will be charged an
additional handling fee for this service, payable to the Post Office Ltd. You must pay the fee by
cash or debit card when you attend your biometric enrolment appointment."

Robert Simpson left an annotation ()

Dear Home Office & ICO:
You can find an easier to read PDF of my February internal review request at https://dl.dropboxusercontent.com/u/2788...

Robert Simpson left an annotation ()

A detailed article analysing why the Residence Card fee is likely unlawful can be found here: https://eumovement.wordpress.com/2015/04...

Wayne Pearsall left an annotation ()

I would feel confident with a civil claim with your points highlighted both here and the points in the EU Movement blog.

Under the CPR in an active claim I'm sure the Home Office would have to show the details they hold and you're requesting here.... ? Otherwise their defence would be sure to fail?

FOI Responses, Home Office

1 Attachment

Mr Simpson

Please find attached a response to your request for an internal review

 

 

D Pottinger

Information Access Team

Home Office

 

Please note that any futher correspondence should be sent to 
[1][Home Office request email]  not FOI responses.

 

 

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Robert Simpson left an annotation ()

FS50577585

Wayne Pearsall left an annotation ()

any update yet Robert?