Colegii de pe forumul BGhelp.co.uk au inceput sa redacteze o scrisoare prin care cer autoritatilor sa nu mai discrimieze pe baza nationalitatii.
Acesta este un draft, pe care cineva ne invita sa il imbunatatim si sa il folosim.
Aveti in continuare emailul primit si textul scrisorii:
Just to let you know. Bulgarians on BGhelp's forum are discussing a complaint to the European Commission regarding the delays with registration certificates.
Someone wrote a letter which may be used by your community as a template for a complaint. The letter itself is still under revision as it seems from the grammatical mistakes, but otherwise is ready to be used by anyone wishing to seize the Commission. I have no idea, who wrote it, just felt that it may be of use for your community to sort the delay mess with the registration certificates.http://www.bghelp.co.uk/forums/546188-post264.htmlhttp://www.bghelp.co.uk/forums/545823-post258.html
Dear Sir, Madam
We are writing as representatives of the largest Bulgarian electronic media portal in the UK, BGHelp, and on behalf of all of its affected members in order to lodge an infringement complaint against the United Kingdom Border Agency (UKBA), in respect of some of the legal issues arising out of the current administrative practices employed by the Agency, and more specifically, the considerable delays in the handling of applications for Registration Certificates by A2 Nationals.
A2 Citizens, respective rights
Currently, under The Treaty of Functioning of EU Union, The Treaty of Accession of Bulgaria and Romania 2005, and the Directive 2004/38/EC, as implemented in the UK by the European Communities Act 1972, The Immigration (European Economic Area) Regulations 2006, and The Accession (Immigration and Worker Authorisation) Regulations 2006, a citizen of the A2 European Countries is allowed to remain in the UK after three months of residence provided that he, or she, complies with the prescribed registration requirements and formalities required by national measures in accordance with the Treaty of Accession 2005.
Thus, having regards to the Treaty of Accession 2005, it is obvious that regarding most categories of A2 European Citizens, the Article 8(2) of the Directive 2004/38/EC, where fully applicable, and where an applicant dully complies with the requirements as provided, obliges the UK authorities to issue a registration certificate “immediately” upon application by an A2 European Citizen.
Furthermore, survey of the legal literature, and most of the EU institutional opinions on the topic, clearly suggests that in respect of “immediacy” of issuance and delivery of registration certificates, the obligation imposed to Member States is a positive one.
UK, the current state of affairs
Many of our concerned Members currently report that they are still awaiting their registration certificates to be approved and delivered by the United Kingdom Border Agency. With regards to the prescribed registration procedure and practices employed by UKBA, our members consider that it is perfectly understandable that there may be possibilities of procedural delays in the administrative process, and without doubt, are ready to accept such delays when reasonable.
However, all of our affected members complain that an approval of their registration certificate application has been delayed for more than two months.
Furthermore, delays going beyond any possible sense of reasonableness, namely “seven months”, has been registered and reported by a civil servant of the Agency in response to an inquiry under the Freedom of Information Act 2000 by an affected A2 European Citizen.
Moreover, statements posted on UKBA’s website point to the fact that the Agency clearly considers possible delays in the handling of applications, and even delays going beyond six months, as wholly appropriate and in accordance with the applicable European Law provisions.
UK, applicable secondary legislation
Regulations 6(1) and 16(1) of the Immigration (European Economic Area) Regulations 2006 provide that “The Secretary of State must issue a registration certificate to a qualified person immediately on application and production” of a specified list of documents and validating evidence.
From the above wording it is obvious that the obligation imposed on the Secretary of State in respect of A2 Students applying for a registration certificate in order to comply with the requirement to “hold” a registration certificate under Regulation 2(10) of the Accession (Immigration and Worker Authorisation) Regulations 2006, where the A2 student intend to work for maximum of 20 hours per week, is to issue a registration certificate immediately.
Thus, we note the fact that the wording of the Immigration (European Economic Area) Regulations 2006, previous administrative practices of the Agency, and the availability, although very limited, of an in person same day service, suggest that the UK Authorities have previously applied, and are currently purporting to apply the Immigration (European Economic Area) Regulations 2006 and the Accession (Immigration and Worker Authorisation) Regulations 2006 in respect of all categories of A2 citizens, with the exception of A2 “workers”, in accordance with Article 8(2) of the Directive 2004/38/EC.
We also note the fact that with regard to some categories of A2 citizens, namely “workers”, the term “immediately” may be somehow qualified by the Transitional Measures listed in Annex VI of Treaty of Accession 2005. However, with regard to all other categories of A2 applicants, it is unclear on what legal basis the term “immediately” employed in Article 8(2) of the Directive 2004/38/EC can be derogated from, provided that the applicant complies with all other legal requirements.
Furthermore, it is unclear on what legal basis the anticipated six months time-frame, or rather time limit, for processing of application for registration certificates can be justified.
Perhaps, one possibility would be that the Accession (Immigration and Worker Authorisation) Regulations 2006 allow for such a standard to be employed, and both the national Legislature and the Agency read the Transitional Measures listed in Annex VI of Treaty of Accession 2005 and the Directive 2004/38/EC as allowing for such a time-frame to be implemented as part of the respective national measures.
Thus, it seems that in construing the Immigration (European Economic Area) Regulations 2006, the UK Authorities make reference to other articles in Directive 2004/38/EC, rather than following the directions of “immediacy” with regard to issuance of registration certificates prescribed by Article 8(2) of the Directive.
However, such construction of the Law seems to be entirely wrong. All other possibly related articles in the Directive, which specifically prescribe a time-limit for administrative proceedings, either relate to other type of documents, namely “residence cards”, Article 10, or “permanent residence cards” for family members who are not nationals of a Member State, Article 20.
Moreover, in any case, even if the UK Authorities are correct in their reading of the law, a past opinion of the Advocate General Stix-Hackl and the following confirming decision of the Court of Justice of the European Union analogically imply that administrative delays going beyond six months would in all circumstances constitute a breach of community obligations under the Directive 2004/38/EC. (Case C-157/03 - Commission v. Spain)
Thus, it seems that by registering and reporting delays going beyond six months, the UK Authorities are in any case in breach of positive community obligations.
Infringement A, failure to fulfil positive obligation under the 2004/38/EC Directive
As we noted above we consider that the Directive 2004/38/EC is correctly transposed.
However, taking into account the officially reported delays, the Agency’s specified reasons, and intended processing time in respect of applications for registration certificates by A2 Citizens, we thus consider that the United Kingdom does not fulfil the positive obligation which Article 8(2) of the Directive 2004/38/EC imposes on Member States, whether or not the current delays are attributable to bad administrative practices or insufficiency of administrative resources.
Other related administrative anomalies
Not only there are considerable delays in processing of applications for registration certificates, but there are further anomalies arising out of or in connection with the currently employed administrative practices.
For example, while the UKBA website states that the Agency is “making every effort to reduce processing times” it has “introduced additional checks in order to maintain a “robust caseworking process”, which in effect has resulted in increased processing length of time. Further, it states that this has been a “necessary” condition in order “to maintain the quality” of decision-making. However, at the same time it is possible for an A2 applicant to make an application in person at UKBA’s Croydon offices on the same day, and its application to be processed and approved on the very same day.
We consider that it is incomprehensible how “additional checks” and a “robust caseworking process” employed in order to maintain the “quality” of decision-making, with regard to postal applications, in effect have resulted in an increased application processing times, whereas, at the same time, with regard to an application in person at UKBA’s Croydon offices, the same diligence, robustness, and quality of decision-making allow for an application to be processed and approved on the very same day,
In this aspect of the complaint, we consider that either UKBA does not exercise any “quality” of decision-making with regard to its same day service, or it is employing an arbitrary double standard in respect of its postal application service.
Since Article 8(2) of the Directive 2004/38/EC does not differentiate between postal and in person applications, it is entirely unclear on what legal basis the difference in processing time in respect of both types of administrative services can be explained.
Furthermore, while it is indeed possible for an A2 Applicant to apply in person and to benefit from the speedy processing practices employed by the Agency, with regard to the same day service, some of our affected members report that the currently available booking facilities make a same day service booking very difficult, if not impossible. Some of these affected members also report that they have been trying to book a same day service appointment via the UKBA’s online system and the previously provided telephone line for several weeks in a row. As a result of the experienced difficulties they have felt that it is imperative to send their applications to the UKBA’s postal service office, and are now facing considerable delays.
Stealth immigration policies employed by UKBA in respect of A2 Citizens
We thus consider that it is possible, if not plausible, that through the employed administrative practices and resources the UKBA is forcing A2 Citizens to use their postal service instead of the said application in person service at their Croydon offices.
In this aspect of the complaint, it is unclear what the Agency’s motives for employing such administrative techniques are, and many of our members consider the said practice as a method of forcing a stealth immigration policy in respect of A2 European Citizens.
The situation is such that the uncertainties and the indefinite delays facing A2 Citizens in handling of their applications by the Agency are proving to be a breeding ground for corrupt practices. Thus, our affected Members report that several individuals are taking advantage of the limited number of appointments regarding application in person, and have been selling allocated interview slots for considerable sums. The possibilities of such corrupt practices comparable to “ticket touting” are causing a wide spread sentiment of frustration with the administrative system among our members.
UK, wording of secondary legislation, confusion in respect of A2 Students
Paragraph 7(2) of the Accession (Immigration and Worker Authorisation) Regulations 2006 provide that “The Secretary of State shall issue a registration certificate to an accession State national subject to worker authorisation on application if he is satisfied that the applicant…” , whereas, Paragraph 16(1) of the Immigration (European Economic Area) Regulations 2006 provide that “The Secretary of State must issue a registration certificate to a qualified person immediately on application and production of…”
From the wording of the Accession (Immigration and Worker Authorisation) Regulations 2006 is obvious that the obligation imposed on the Secretary of State in respect of A2 Workers applying for a registration certificate in order to comply with the requirement to “hold” a registration certificate, Regulation 2, is altogether very different from the obligation imposed on the Secretary of State in respect of all other European Workers.
We note the fact that Article 1(3), Article 20, the Admission Protocol, and Paragraph 1 of Annex VI of The Treaty of Accession 2005 provides that Article 26 of The Treaty on the Functioning of the European Union “shall fully apply only, in relation to the freedom of movement of workers and the freedom to provide services involving temporary movement of workers…subject to the transitional provisions laid down in paragraphs 2 to 14.”
We thus consider the wording and the discretion allowed to the Secretary of State by Regulation 7(2) of the Accession (Immigration and Worker Authorisation) Regulations 2006, in respect of workers, as entirely within the national measures allowed by Annex VI of The Treaty of Accession 2005.
We also note the fact that A2 Students are allowed to work for maximum 20 hours per week by virtue of Article 1(3), Article 20, the Admission Protocol, and Paragraph 14 of the Transitional Measures listed in Annex VI of The Treaty of Accession Union 2005, and not by virtue of their mixed status when exercising their right to work within the prescribed limitations.
However, taking into account the fact that Regulations 2(10) and 7(6) of the Accession (Immigration and Worker Authorisation) Regulations 2006, regarding student registration certificates, are part of entirely different secondary legislation, rather than being a part of the Immigration (European Economic Area) Regulations 2006, and the obvious differences in the wording of these legislations in respect of the obligation imposed on the Secretary of State to issue a registration certificate to A2 Nationals, we are of the opinion that Article 8(2) of Directive 2004/38/EC, in respect of A2 Students, has been in effect bypassed by Regulations 2(10) and 7(6) of the Accession (Immigration and Worker Authorisation) Regulations 2006. This fragmentation of the law obviously creates confusion in respect of the allowed discretion to the Secretary of State.
Difference in treatment of A2 Students
As noted earlier, we highlight the fact that Article 1(3), Article 20, the Admission Protocol, and Paragraph 1 of Annex VI of The Treaty of Accession of Bulgaria and Romania to the European Union 2005 allows application of national measures only in respect of “workers”, or “services involving temporary movement of workers”.
Thus, in respect of all other categories of A2 nationals there are no possible derogations allowed via national measures. Therefore, article 8(2) of Directive 2004/38/EC applies with full force in respect of all other categories of A2 nationals
Thus, taking into account the fact that MS’s discretion does not exist in respect of A2 students, the noted legally unjustifiable delays, and the obvious confusion created by the applicable secondary legislation, we consider that the current anomalous administrative practices result in an inadequate application of Directive 2004/38/EC, which in effect leads to an obvious difference in treatment of A2 Students in respect of their application for registration certificates.
EU Law, prohibition of discrimination on grounds of nationality
Article 18 of the TFEU provides that, “Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.”
Infringement B, discrimination on grounds of nationality
Taking account the permitted discretion with regard to most categories of A2 Nationals, UKBA’s anomalous administrative practices, and the obvious difference in treatment in respect of A2 Students applying for a registration certificate, we thus consider that by inadequately applying Directive 2004/38/EC, the United Kingdom Authorities discriminate specific categories of A2 Nationals on the grounds of nationality.
A2 “workers” and “students”, requirement for registration and criminality
With regards to Workers, and Students which are allowed to wok for certain number of hours during their course of studies, under Reg. 12 of the Accession (Immigration and Worker Authorisation) Regulations 2006, when an A2 national fails to comply with the authorisation obligation, it may be a criminal offence for an employer to employ the national. However, it is possible for an employer to plead that, before the employment began, the A2 national presented what appeared to be a registration certificate when furnishing evidence of entitlement to work, provided that the employer have also retained a copy of the registration certificate.
Thus, it is obvious that the Accession (Immigration and Worker Authorisation) Regulations 2006 puts considerable burden on employers to satisfy themselves that an A2 national applying for a specific vacancy has the appropriate registration certificate specifying its status and working limitations, if any.
Moreover, under the Accession (Immigration and Worker Authorisation) Regulations 2006, an A2 national working without an authorisation document faces a criminal prosecution, or a fixed level penalty. The Regulations provisions reflect the fact that A2 nationals are entitled to enter the UK for up to three months, but nevertheless lack a general right to take up an employment without being subject to restrictions.
EU Law, allowances for national measures
Under Article 1(3), Article 20, the Admission Protocol, and Paragraph 14 of the Transitional Measures listed in Annex VI of The Treaty of Accession of Bulgaria and Romania to the European Union 2005, it is provided that the effect of the application of Transitional Measures by Member States “shall not result in conditions for access of Bulgarian nationals to the labour markets” of the Member States “which are more restrictive than those prevailing on the date of signature of the Treaty of Accession.”
However, in respect of the unfortunate position borne out by the current administrative practices of the Agency, taking into account the limited availability of same day service appointments, the registered current delays in the handling of applications for registration certificates, the effect of the Accession (Immigration and Worker Authorisation) Regulations 2006 which make obtaining of employment conditional upon obtainment of a registration certificate beforehand, the criminal penalties which prospective employers and A2 nationals may be facing, the fact that prior the date of the Accession A2 nationals were able to obtain student visas prior to their arrival in the UK, and the fact that, previously, on the basis of the obtained student visas employers have been able to employ A2 students, we consider that the effect of the application of Transitional Measures in the UK result in conditions for access of Bulgarian nationals to the labour markets of the UK which are more restrictive than those prevailing on the date of signature of the Treaty of Accession.
This state of affairs is confirmed by several of our affected member, according to whom, the delays in issuance of registration certificates have resulted in a complete inability to obtain any employment prior the production of an appropriate certificate to prospective employers, even where the applicants have already been approved for a certain job position, provided that they are able to produce a registration certificate confirming their employment authorisations, or determined limitations, if any.
Infringement C, A2 Students being in a worse position than prior to Accession
We thus consider that A2 students in the UK are now facing an anomalous situation where, although being Citizens of the European Union, are unable to avail themselves of corresponding rights which were available and enjoyed prior the Accession of Bulgaria to the European Union in 2007.
EU Law, requirement to present an identity document when travelling
Under Preamble (2) of the Directive 2004/38/EC, “The free movement of persons constitutes one of the fundamental freedoms of the internal market.” Furthermore, Preamble (3) of the Directive states that the “Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence.” Thus, Union citizens have the right to enter and exit Member State provided that they are able to produce a valid identity card or passport. (Directive 2004/38/EC Preamble (9), Articles 4 and 5; Case C-378/97, Wijsenbeek)
In this aspect of the complaint, some of our affected members complain that their travel documents have been now held by UKBA for a considerable period of time during which they were unable to travel abroad whenever necessary, or anticipated, without in essence, a requested withdrawal of the application for a registration certificate. Some of these affected members feel more strongly about this unfortunate state of affairs and even consider that they have been, and in effect are still held hostage by the administrative practices of the Agency.
Infringement D, Practices going against the Letter and the Spirit of the Directive
We also feel strongly about these unfortunate facts, and without the slightest doubt, consider that UKBA’s practice of withholding identity documents clearly goes against the Purpose, the Letter, and the Spirit of the Directive 2004/38/EC, which, above all, aims at facilitating freedom of movement within the Union.
EU Law, values of respect for human dignity
Article 2 of the Treaty on European Union provides that the “Union is based on the values of respect for human dignity”. Furthermore, Preamble (2) of the 2004/38/EC Directive provides that the “right of all Union citizens to move and reside freely within the territory of the Member States should” be “exercised under objective conditions of freedom and dignity”.
In this aspect, our affected members report that in some cases, since they have been concerned for the safe return of their identity documents, they have been unable to change their address of abode as long as their identity documents were, and are still withheld by the Agency, and in some cases felt necessary to remain at the address of abode even where there have been instances of physical and psychological abuse.
Infringement E, breach of right to “human dignity”
Having regard to these reports, we thus consider that that the practice of withholding identity documents, and the registered long delays in the processing of applications for registration certificates, with certainty, in the specified instances, go against the core value of “human dignity” as enshrined in the Treaties and the Directive 2004/38/EC.
The recent warning of the European Commission
We also think that is necessary to highlight the fact that just less than few months prior to this letter the Commission has warned the United Kingdom authorities to comply with the Directive 2004/38/EC, with regard to issuance of registration certificates to A2 nationals who have been legally working in the country for over a year, or face an infringement proceedings under Article 260 of the TFEU. (Reference: IP/12/417)
Our appeal and complaint
Having regard to the aforementioned A2 Citizens’ rights and freedoms, positive Member States’ obligations, guarantees provided under European Law, and the recent warning given to United Kingdom authorities, we the signatories of this document make a formal complaint in respect of the aforementioned infringements, and call upon the European Commission to initiate an investigation in respect of the current administrative practices of UKBA, which are causing serious hardship and difficulties and are of urgent concern to our affected members.
We also consider that the United Kingdom Authorities have no intention of fulfilling their respective obligations under the “acquis communautaire” of the Union, and call upon the European Commission, being the guardian of the Treaties and the “acquis communautaire” of the Union, to call the United Kingdom authorities to define its position with regard to the aforementioned problematic practices and infringements, and take action against United Kingdom if necessary.
The Signatories, and on behalf of BG Help