EU Law

Continuous Residence and COVID-19: Important update for EUSS applicants by Charlotte Rubin

The Home Office published guidance for EU Settlement Scheme (EUSS) applicants in or outside the UK who have been affected by restrictions associated with COVID-19 since the beginning of the pandemic.

The general rules of the Scheme are clear – for an applicant to be eligible for status, for them to be able to remain in the UK after the 31st of December 2020, they will need to confirm and prove a period of continuous residence in the UK. Depending on how long that period of residence is, the applicant will be granted either settled or pre-settled status.

To obtain settled status, or indefinite leave to remain, the applicant has to have been continuously residing in the UK for five years. The five years need not be ongoing; applicants who are not currently living in the UK may apply based on their historic residency, as long as they have not been outside the UK for a continuous five-year period immediately after the five-year qualifying period of residence on which their application is based.

If a person has been in the UK for less than five years, they will receive pre-settled status, which they will need to maintain until they reach the five-year continuous residence threshold to qualify for settled status. Continuous residency is calculated on a rolling basis, not based on calendar years, meaning that the applicant must be living in the UK for more than six months out of every twelve-month period.

The general rules state that applicants are permitted one period of absence of more than six months (but which does not exceed 12 months) for an important reason such as study or serious illness without losing their pre-settled status. This period of absence must be explained and proven when the applicant submits their settled status application. If an applicant is absent from the UK for longer than six months (but under 12 months), and it is not for an important reason, the absence will break their continuous residence, and they will not be able to apply for settled status.

Until today, it was unclear how the Home Office would deal with absences due to COVID-19 related reasons. The guidance published today confirms that they do not intend to be very flexible, but unfortunately does not clarify not much more than that, as it is not very detailed.

For applicants who were outside of the UK for a few months during the COVID-19 pandemic, the Home Office essentially applies the general exception rule. The guidance confirms that if an applicant was impacted by coronavirus public health restrictions and could not travel as a consequence, this will count as an exceptional circumstance which may justify absences from the UK of over six, but under 12, months. Examples given include if the applicant contracted coronavirus overseas and could not return to the UK because they were ill or in quarantine, or if imposed travel restrictions led to an increased absence from the UK for longer than planned.

In all cases where the applicant was prevented from travelling due to COVID-19 related reasons, they will have to provide a supporting letter explaining and outlining the various details of their time abroad – when they were ill or quarantining, when their flights were cancelled, and any other important dates. No additional detail is given about the standard or expectations of proof. In any case, an applicant is only allowed a single absence exceeding six months (but not exceeding 12 months) for an important reason in their five-year continuous qualifying period, meaning that if an applicant already had an important reason for which they had to leave the UK for more than six months before the pandemic hit, their counter for number of years with continuous residency will have to be reset to include only the latest period of absence.

An example could be a student who arrived in the UK in 2016, studied abroad from September 2017 until June 2018, for which they planned to use the “important reason” exception, and who in the past 12 moths has spent seven months abroad due to a combination of pre-covid trips, and a five-month lockdown which they spent in their home country. This applicant would not be able to claim an “important reason” both for their period abroad in 2018, and for their prolonged absence in 2020. As a consequence, they would have to “reset” their counter to when they returned to the UK after their year abroad, and will only be eligible to apply for settled status in 2023 instead of 2021, as they would have been under normal circumstances.

Another issue addressed in the guidance is that of people who need certain evidence of their identity and nationality to apply to the EUSS, but are unable to obtain it due to circumstances beyond their control specifically related to coronavirus public health restrictions. Examples given include the closure of embassies or consulates, or the inability to travel to the closest consular services which may mean that it is impossible to obtain the conventional identification documents. In these circumstances, the Home Office may accept alternative pieces of evidence of nationality such as expired passports or ID cards, another official document issued by the authorities of your country of origin or of the UK which confirms your identity and nationality or previous Home Office communication evidencing your nationality. People who apply to the EUSS with alternative means of identification documents must apply on a paper application form, applications which generally take longer to resolve than the electronic ones.

Both for applicants relying on alternative evidence of nationality and for those justifying a prolonged absence from the UK based on COVID-related public health restrictions, the Home Office evaluates claims on a case-by-case basis. There is no provision for leeway or discretion in any circumstance, for example if an applicant is only missing a few days to reach the official six-month threshold, nor is there any detail on how an applicant is meant to prove the reasons for their absence.

If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.

Briefing for EU citizens: less common EUSS applications: Frontier workers, prisoners, extended family members by Charlotte Rubin and Chris Desira

In order to stay in the UK lawfully after the end of the transition period, all EU citizens in the UK have to apply for status under the EU Settlement Scheme (EUSS). Under the Scheme, EU citizens will be given either pre-settled or settled status. For an applicant to the EU Settlement Scheme to receive either pre-settled or settled status, they will have to prove three key things: their identity, their suitability, and a period of continuous residence in the UK.

For most applicants, this will be relatively straightforward. This briefing focuses on three groups of applicants for whom proving these things will be slightly more complicated: frontier workers, people with a criminal sentence, and extended family members. Of course, many other applicants will find the EUSS confusing or hard to navigate, and numerous other vulnerable groups in society have been identified as at risk of failing to secure their rights. This briefing focuses on specific issues with these three groups to break things up a little.

The Withdrawal Agreement between the EU and the UK provides that frontier workers must receive documents certifying their status as soon as possible, so that they are not prevented from exercising their rights after the end of the transition period, and can easily demonstrate proof of those rights at the border. That is why the government is launching a frontier worker permit scheme on 10 December, so that frontier workers can make free applications to receive such a document. Although this is a welcome development, the scheme seems to be cutting it quite short as it opens a mere three weeks before the end of the transition period, with very little information available as to the qualifying criteria and precise application process. Surprisingly, there seems to be more information available for family members of frontier workers than for frontier workers themselves, as there seems to be little certainty about what exactly is required of them

As for EU citizens without a right of permanent residence whose residence is interrupted by a period of imprisonment, the Withdrawal Agreement states that the “conduct” of these citizens may have an effect on their application under the Scheme. “Conduct” here relates to actions taken by the affected citizen, rather than the outcome of the action such as a sentence of imprisonment, meaning it is not the time or severity of the prison sentence but of the conduct which is important in assessing the relevant citizen’s eligibility.

Appendix EU clearly states that continuous qualifying period cannot include a period of imprisonment. In fact, EU law stipulates that periods of imprisonment in the host Member State interrupt the continuity of residence required by Article 16(2) of the Free Movement Directive for the purpose of acquiring a right of permanent residence.

There will be situations where the conduct of the citizen is committed before the end of the transition period, and the conduct is not be serious enough to result in their removal from the UK, but their prison sentence will conclude after the end of the transition period. If this is the case, the only route to status under the EU Settlement Scheme would be if the applicant already had settled status before he committed the offence. If he had been in the UK for less than five years when the offence was committed, and does not have settled status, he will not be able to acquire it. A citizen cannot link periods residence in the member state that are dissected by a term of imprisonment which in this example, began before the end of the transition period.

The result is that a citizen who was in prison during the transition period, but does not meet the threshold for removal from the UK, cannot begin a continuous qualifying period to obtain EUSS status. They are highly unlikely to be able to obtain any other immigration status due to the restrictive nature of UK immigration law and would consequently face removal on the basis that they do not have any lawful residence after 30 June 2020.

Lastly, concerning extended family members, Appendix EU requires that durable partners and dependent relatives apply to the EUSS with a valid “relevant document". The definition of a relevant document is a document issued for under the EEA Regulations. It can be a family permit, a residence card or a permanent residence card. Important to note is that the relevant document must be valid (i.e. not expired or revoked), meaning that an extended family member who has been issued a document which has now expired is unable to apply to the EUSS and will receive an automatic refusal of status should they submit an application. In effect, this raises the financial bar for durable partners of EU citizens, as they are required to make a second application under the EEA Regulations to receive a valid relevant document and then make a third application for EUSS status. The application fee here is 65 pounds.

This fee is entirely avoidable. In fact, when an extended family member applies to the EUSS, the process assesses whether the family relationship continues to exist (or did for a 5 year period in the past). Therefore, it is available to the Home Office to assess the continuing family relationship of an extended family member applicant through the EUSS process, even where their relevant document has expired. The Home Office approach puts a disproportionate burden on these applicants not only financially, but also practically, as they have to evidence and re-evidence their family relationships which could be considered detrimental to the rights of their sponsoring EU citizens.

Once family members of EU nationals succeed in their application and get status under the Settlement Scheme, they are issued a physical document to prove their right to residency in the UK. This physical document is a privilege not granted to EU citizens, meaning that in practice, durable partners receive physical proof of their status when the EU citizens on whose application they depend do not.

If you require any advice on the EUSS as a member of one of these three vulnerable groups of EU citizens or otherwise, do not hesitate to contact us for advice.

If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.


Leaving Dublin behind: what does leaving the Dublin Regulation mean for the UK? By Charlotte Rubin

Since officially leaving the European Union (EU) on 31 January 2020, the UK has been navigating an 11-month transition period negotiated by Theresa May and later Boris Johnson. During the transition period, EU law still applies in the UK, even though the UK is no longer formally a member of the EU.

That transition period is set to end on 31 December 2020. On that day, various important changes happen automatically, because from 1 January 2021, EU law will no longer be directly applicable in the UK. For immigration purposes, the most widely discussed change following from that will be that on the 1st of January, free movement of people ends, and the rebranded points-based immigration system is coming into full force to replace it. Obviously, the end of free movement is a big deal. There will, however, be numerous other significant changes to migration as a consequence of Brexit. One such area is asylum.

Asylum regulation is based on a number of international, EU and domestic laws. The relevant international law is set out in the 1951 Refugee Convention, and the European Convention of Human Rights (ECHR). The applicability of those texts will not be affected by Brexit, the end of the transition period, or any other event to do with the EU, as their legal basis is not in EU law. Despite the ECHR’s name, it is not an EU treaty, and the Strasbourg human rights court is not an EU body – so these laws will continue to apply.

EU law, however, is a different story. Due to the Common European Asylum System, the end of the transition period will heavily affect individuals claiming asylum in the UK, as the EU law relevant to asylum will no longer be automatically applicable in the UK. Some of it will be repealed immediately and replaced by domestic law, such as Home Secretary Priti Patel’s infamous Immigration Bill implementing the points-based system and end of free movement in practice. Another piece of legislation set to be repealed is the Dublin III Regulation. The purpose of the Dublin Regulation is to determine which State is responsible for examining an asylum application. The legislation is marked down for immediate repeal because it is meaningless without cooperation of other EU member states.

In very simple terms, the Dublin Regulation allows the UK to return asylum seekers to another EU country if they passed their on their way to the UK. In less simple terms, Dublin III sets out mechanisms determine which country should assume responsibility of asylum seekers within their borders, and to return them to those responsible countries. The Regulation is intended to ensure quick access to asylum procedures and reduce double handling of asylum claims by different States.

Important to note is that Dublin III does not allow for the UK or any member state to return asylum seekers to their country of origin, or outside of the EU. It applies to asylum seekers within the bloc, and determines which member state is responsible for processing their claim. The Dublin III Regulation utilises a host of criteria to determine where an asylum seeker should claim asylum, ranging from family unity, to possession of residence documents or visas and irregular entry or stay. The latter has become something of a hot topic in recent months, as reports of migrants crossing the channel in small boats from France have risen, and inflammatory remarks from the government has led to much commotion. At some point, Home Secretary Patel stated she wanted the British navy to patrol the seas in order to send illegal channel crossers back to France. This idea was quickly dismissed, as it turned out that it would only be legal under international law if the country whose waters the migrants would be sent back to (in this case France) agreed to the return, but the narrative presented has remained the same.

Ms. Patel has frequently justified returning channel crossers to France on the idea that their asylum claims in the UK are “illegal” because they arrived in France first, and then entered the UK illegally. This is not exactly true. There are limits, legally, to the extent irregular entry can be used as a reason for transfer back to the first point of entry. For example, the principle can be outweighed by other primary considerations such as family unity. Additionally, a Member State will be responsible for a claim submitted by a person who has been living there for at least five consecutive months, even when that person first gained entry into the EU by an irregular crossing of a border in another Member State. So, if an asylum seeker entered the UK via France, but has been in the UK for over five months since, they cannot be returned to France and the UK will automatically assume responsibility.

In 2019, statistics indicate that 714 individuals were transferred into the UK based on Dublin III rules, and 263 were transferred out to another EU country. Numbers have been steadily rising since the Brexit referendum, indicating a push to complete as many Dublin III transfers as possible before the Regulation stops to apply.

The government has given no indication that it plans on introducing a post-Brexit successor to the Dublin Regulation. Instead, it has proposed two draft agreements with the EU which relate to certain specific aspects of the Dublin Regulation. On the one hand, the government is looking to come to an agreement on the transfer of unaccompanied asylum-seeking children for family reunion purposes, and on the other, it has proposed a readmission agreement for accepting returns of irregularly residing UK/EU citizens and third country nationals. Both of these proposals are much narrower than the Dublin Regulation allowed for.

None of these proposals have been accepted by the EU, and the Government has said that it might pursue bilateral agreements with individual Member States if it cannot secure EU-wide agreements. It is unclear whether these individual agreements would be compatible with the EU’s exclusive competence/power over migration policy, and so whether they will be possible at all. The end of Dublin III hence leaves a gap in UK immigration law that is unlikely to be filled before the ever-approaching end of the transition period.

If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.

Briefing for EU citizens: the Continuous Qualifying Period of residency by Charlotte Rubin and Christopher Desira

In order to stay in the UK lawfully after the end of the transition period, all EU citizens in the UK have to apply for status under the EU Settlement Scheme. Under the Scheme, EU citizens will be given either pre-settled or settled status. To obtain pre-settled status (which gives EU citizens temporary residence in the UK for a limited period of five years), an applicant does not have to prove much: they must simply show that they have arrived in the UK before 31 December 2020. For settled status (which gives EU citizens permanent residence rights in the UK), it is a different story.

An applicant wanting to obtain settled status will have to demonstrate that they have been continuously resident in the UK for five years. What does that mean exactly? In this post, we have a look at the law which applies in this scenario to try and get a better idea.

The way Appendix EU to the immigration rules, which sets out the legal framework for the EU Settlement Scheme, defines continuous qualifying residence for the acquisition of permanent residence is based on the idea of a 6 month out of 12 months “rolling” residency. The definition of “continuous qualifying period” in Appendix EU states:

a period of residence in the UK and Islands…
(b) during which none of the following occurred:
(i) absence(s) from the UK and Islands which exceeded a total of six months in
any 12-month period [emphasis added]

Imagine a scenario where an applicant, Serge, moved to the UK from France in April 2016. Until June 2019 he only went home for a few weekends and holidays, so he does not have to worry about his absences for his first three years of residence. In July 2019, his fourth year of residence, however, Serge went back to France for the summer and was absent from the UK until the end of September (three full months). He then came back to London, until January 2020, when he went back to France. He was supposed to return to London in February, but ended up staying abroad until May 2020, facilitated by him working from home during the COVID-19 pandemic. This is an absence of four full months in the calendar year of 2020.

But Appendix EU does not work in calendar years. Rather, it analyses periods of residence on a 12-month rolling basis. As a consequence, Appendix EU would interpret the above-mentioned scenario to mean that Serge has broken his continuous qualifying period on account of combining the three months absence in year 4 with the four-month absence in year 5 resulting in a combined absence of seven months in a 12-month period. The drafting of the criteria does not allow the citizen to demarcate the absences into separate 12-month periods.

When it comes to COVID-19 related absences, the Home Office have said that they will be flexible, and consider it as an exception to the 6-month rule if need be. Serge might then be able to rely on this exception when he applies for settled status in April 2021. However, the validity of this exception is not guaranteed, but rather subject to Home Office discretion. In addition, not all applicants will be able to do the same

The Court of Justice of the EU has held that periods of continuous legal residence confer on EU citizens the right of permanent residence with effect from the actual moment at which they are completed. This means that the continuous period of five years legal residence that leads to the acquisition of the right of permanent residence is to be counted from the moment the EU citizen takes up residence in the host Member State in compliance with the residence conditions of the Free Movement Directive.

In fact, the definition of “continuous qualifying period” in Appendix EU does not comply with provisions regarding continuous residence in the EU Free Movement Directive and the EU-UK Withdrawal Agreement. The rule from those legal instruments is that an EU citizen may have temporary absences not exceeding a total of six months within each year leading up to the acquisition of the right of permanent residence, and that each year starts on the anniversary of the date when the EU citizen took up residence in the host Member State in compliance with the residence conditions of the Free Movement Directive, meaning that absences in different years must not be added up.

It should be noted that the way the Home Office calculate qualifying residence for permanent residence under the EEA Regulations (implementing the Citizens’ Directive in domestic legislation), is not clear on this matter as there has been a change in Home Office guidance instructing case workers how to assess the continuous residence requirement. Former guidance stated that the Home Office would consider absence is based on a year 1 to 5 from when the EU citizen began their UK residence. Current guidance states that a six months absence in any 12-month period would break continuous residence without reference to calculating this on a year by year basis. Therefore, the current interpretation of continuous residence under the EEA Regulations is in conflict with Appendix EU. This could easily be remedied by changing the guidance back, and ensuring that EU citizens get the status they are entitled to.

If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.






Cross-party report urges the UK and EU to ensure that citizens’ rights protections are fully implemented before the end of the year by Charlotte Rubin

A cross-party report published last week urges the UK and EU to ensure that the citizens' rights protections in the Withdrawal Agreement are fully implemented for UK nationals living across the EU and EU citizens in the UK. All recommendations were agreed upon by the Committee on the Future Relationship with the European Union. Broadly, the Report, to which Seraphus submitted written and oral evidence, underlines the necessity of many long-standing demands of professionals and third-party actors in the field of immigration and EU law.

For UK nationals in the EU, the Report makes three key recommendations. Firstly, it states that UK nationals living abroad need to be made aware of what they need to do to secure their rights. The Report calls on the Government, together with the European Commission and each Member State, to increase monitoring of the processes in each state. It also reiterates that the registration/application processes should be simple and avoid any unnecessary administrative burdens.

Secondly, the report states that deadlines for UK citizens to apply should be extended where necessary. In fact, of the thirteen Member States that have decided to require a new application for UK citizens to remain there legally, seven have already extended the deadline beyond 30 June 2021, which is the standard date for the end of such application schemes. The Committee urges other Member States to consider similarly extending the deadline if it becomes apparent that large numbers of UK nationals have not applied. In general, the Committee recommends countries take a pragmatic approach to delays, such as where Covid-19 causes a reduction in their capacity to manage applications.

Thirdly, the Report reiterates that UK nationals should be actively encouraged to register under the system of their host country. Due to free movement laws in operation over the past decades, many Brits living in countries such as Spain, Greece, France or Portugal are not necessarily registered with the local authority. It is almost impossible to estimate how many UK nationals are unregistered. Encouraging registration now, with the end of the transition period approaching, is vital, as it is often the first step in securing rights protected by the Withdrawal Agreement.

EU nationals in the UK face similar challenges if they want to stay in the UK lawfully. Unsurprisingly, then, the Report mirrors these requests to protect EU nationals in the UK in the same way as UK nationals abroad should be protected. In sheer numbers, the figures of EU citizens needing to apply to the EU Settlement Scheme to remain in Britain is far greater than the number of Brits needing to apply to similar schemes abroad. The concerns for EU citizens’ rights are therefore urgent.

The main issue identified is that although the EU Settlement Scheme has been a significant achievement (with over 4 million applications), it is still unknown how many EU citizens have yet to apply, as there is no clear data on the matter. Following from that, the report expresses concern over the application deadline of 30 June 2021, and what will happen to people who fail to apply before that. The committee urges ministers not to apply an unduly restrictive approach to late applications and to look for reasons to grant status rather than to refuse it.

The report also emphasises the danger for people with pre-settled status not knowing or understanding that they will need to upgrade their status before their pre-settled status expires. It urges the Government to publish guidance for caseworkers on how it will inform citizens with Pre-Settled Status that they are able and required to apply for an upgrade to Settled Status when the time comes.

Another concern highlighted is the danger for vulnerable individuals and groups in the UK. The report is unequivocal in stating that these individuals need more tailored support. Difficulties faced by some EU citizens, for example language or technology barriers, or problems with producing documentary evidence of their residence, are not uncommon. Communication with, and support for, these citizens, either directly from Government or through existing community organisations, must be prioritised as the 30 June 2021 deadline approaches.

There remains a lot of work to be done concerning communication and outreach, and that is why the report also recommends for funding to organisations providing support and advice to EU citizens to be extended beyond the end of this financial year (March 2021) as the government previously promised.

Finally, the Report argues that EU citizens in the UK should be able to apply for a physical document proving their legal residence in the UK. At the moment, EU citizens who successfully apply to the EU Settlement Scheme merely receive a digital confirmation. They have to log in and access their status online every time proof of legal residence is required, for example when opening a bank account, accessing benefits, renting a flat or changing jobs. The report urges the government to reconsider this, as it risks discriminating against EU citizens. This is because from 1 January 2021, identity checks will be performed online instead of through the familiar ID or passport check, only for EU citizens. For non-EU citizens, the same checks will be carried out in a way that is already known and familiar. The Government is urged to set out how it will monitor and review the rollout of these digital checks, parallel to the physical checks for third-party nationals. It also asks the Government for an update on progress establishing the planned Independent Monitoring Authority. This recommendation is especially relevant after last week’s debate in the House of Commons, where the government voted against a proposal to give EU citizens physical proof of status.

The key theme running through the entire report is the need for transparency and clarity. A lot of the recommendations are about outreach, awareness and simplicity of proving status. These are all things the government have been doing, but not enough. EU citizens in the UK as well as UK citizens abroad need to be made aware of what is expected from them, so that the end of the transition period can happen as smoothly as possible.

If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.

Social Security and the EU Settlement Scheme: why we need written documents confirming EU citizens are protected by the Withdrawal Agreement by Christopher Desira & Charlotte Rubin

The EU Settlement Scheme (EUSS), to which all EU/EEA/Swiss citizens living in the UK should apply should they wish to remain in the UK after the end of the transition period on 31 December 2021, confirms the applicant’s right of residence in the UK after Brexit. This aim – to provide EU citizens who live in the UK with status to remain after free movement ceases to apply in the UK – seems simple enough. However, as we have written many times before, the Scheme is not perfect, and has many gaps. Here, we focus on one of those gaps: social security for EEA citizens, an issue which the EUSS does not address, as it fails to confirm explicitly that people who obtain status under the Scheme are protected by the Withdrawal Agreement. Whether someone is protected under the EU Withdrawal Agreement is important, as it determines whether the applicant in question is entitled to social security benefits in the UK.

The relevant framework to understand whether a person is entitled to social security in the UK after Brexit is quite complicated. It requires an understanding not only of UK and the member state’s immigration rules, but also its social security rules, the EU-UK Withdrawal Agreement, the Free Movement Directive and the European Union Social Security Co-ordination Regulations (883/2004).

The 883/2004 coordination Regulations do not establish a single, unified social security system across the EU, but instead provide a reciprocal framework to protect the social security rights of people moving within the European Economic Area (EEA) states (and Switzerland). As such, each member state can choose what sort of benefits-in-kind and cash benefits it funds for nationals from another member state.

The coordination Regulation tells us which country is responsible for paying a person’s benefits, where those benefits can be received and what benefits may be redirected. In short, it simplifies the process of claiming and making benefits, allowing all benefits to be made in one single payment across borders. It provides a mechanism for countries to speak to each other, to resolve who meets the costs and where they will be paid, with an ability to challenge those decisions.

Member States however remain responsible for their own social security systems: it is up to them to decide which benefits are granted, at what rate, as well as define conditions for entitlement. So, a person’s entitlements is dependent on the domestic rules that are in place during their periods of residence in the respective EEA country and the UK.

All benefits referred to in the coordination Regulations are included in the Withdrawal Agreement at Part Two, Title III. This section ensures that if a person is entitled to benefits now, before the end of the transition period, they will maintain the right to those benefits and, if they are entitled to a cash benefit from one country, they will in principle be entitled to receive it even if they decide to live in another country. Title III also covers groups of people, other than those persons meeting the Free Movement Directive, who might also benefit from coordination.

There are four main principles for coordination. The first is the ‘single state principle,’ which sets out that at any one time, a person is covered by the social security system of one single country and is only liable to make contributions in one country – this is what we call the ‘competent state.’ The second is the prohibition of discrimination and guarantee of equal treatment, which sets out that a person has the same rights and obligations as a national of the Member State where they are covered. The third is the idea of ‘aggregation’ which establishes that periods of insurance, employment or residence in other Member States can be taken into account when determining a person’s eligibility for benefits. Finally, the last principle concerns exportability, and explains that a person can receive benefits from one Member State even if they are resident in another Member State.

All the persons who fall within the scope of the provisions set out above get the benefit of the rules and objectives set out in the coordination Regulations, its implementing Regulations and its governing EU treaty provision (Article 48 of the Treaty on the Functioning of the European Union). In other words, the full coordination rules apply and so there is protection for social security, healthcare, and pensions.

There is a saving provision: anyone who does fall within the four categories set out above, but who falls within Article 10 of the Withdrawal Agreement is also covered (as are their family members and survivors) and will remain entitled to social security benefits. Article 10 refers to the categories of persons who continue to have rights of residence under the Withdrawal Agreement. So, if it’s too complex to determine eligibility in one of the categories above, then a person can still remain protected by the coordination rules in the future if they have attained the right of permanent residence in the UK, as long as they retain that right of residence.

Now we come to the EU Settlement Scheme. As we have explained before (for example when assessing EEA applications for naturalisation), settled status does not confirm whether a person falls under these provisions. This can lead to complex coordination in the future. The UK may not be able to determine that a person falls within one of the four categories, and this may lead to disputes with other states also involved in the coordination of rights. So, without a document confirming that they fall within the Withdrawal Agreement, a person with settled status may be excluded from social security coordination provisions under the Withdrawal Agreement, unless they have enough evidence to show prior exercise of EU rights. This is obviously problematic.

Another point to note is that the persons who fall within Article 10 of the Withdrawal Agreement are only covered for so long as they have a right to reside under Article 13 (residence rights) of the Withdrawal Agreement or a right to work in their state of work under Article 24 (rights of workers) or Article 25 (right of self-employed persons) of the Withdrawal Agreement. Again, this risks excluding settled status holders based merely on five years’ presence from social security co-ordination provisions under the Withdrawal Agreement unless they can show the prior exercise of EU rights.

This issue is easy to resolve: applicants who receive settled status and have been beneficiaries of the Withdrawal agreement should simply receive a document to confirm that, which would enable them to claim the benefits they are entitled to without any complications. Unfortunately, the government has previously shown that it is not keen on providing physical status at all – let alone physical proof of entitlement to benefits.

If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.

After Brexit, after the pandemic, which EU citizens are at risk of failing to secure their rights? By Charlotte Rubin

In their most recent report, the Migration Observatory confirms what many lawyers and people working in the immigration field feared: no matter how much outreach and campaigning the Home Office plans to do, thousands of EU citizens in the UK are still likely to miss the EU Settlement Scheme deadline, which is set on 30 June 2021, and lose their lawful residence. These are not necessarily vulnerable individuals, but often simply people who do not realise that they need to apply to the Scheme. Broadly, the people most at risk of missing the deadline fall into five categories.

Firstly, those who are simply not aware that they need to apply. A perfect example of this are very long-term residents, who might think that they do not need to apply because they have lived here for so long, or EU citizens with permanent residence. In absolute numbers, tens of thousands of EU citizens fall under those categories. We know that at least 145,000 non-Irish EU citizens have been granted permanent residence from 2004 to 2019, who are not (yet) UK citizens. Many of these do now know that their permanent residence is not enough to warrant their continued lawful residence after Brexit.

Similarly, children of EU citizens whose parents do not themselves apply might not realise that their children need to do so, or mistakenly believe that their UK-born children are automatically UK citizens. In absolute numbers, this means a big group of children are at risk, as there are an estimated 689,000 children living in the UK with non-Irish EU citizenship. Other people who may not be aware that they need to apply to the Scheme are people who have been rejected for permanent residency or who were previously ineligible, and who do not realise that the criteria to obtain status under the EUSS have been made less restrictive. Additionally, people with criminal records and people who have been removed in the past might be reluctant to apply due to fear of being refused status or not meeting the suitability requirement), even if they are in fact eligible. In prison specifically, EEA citizens are in theory entitled to apply, but in practice unaware of the scheme or unable to submit their application due to practical difficulties.

The second category comprises of people who already face some kind of social exclusion, or who enjoy reduced independence or autonomy. Again, children are part of this group, specifically children in care and care leavers eligible to apply. According to Home Office estimates, there are around 5,000 children in care and 4,000 care leavers who would be eligible to apply to the EUSS, but some local authorities might not have information about their citizenship and hence do not apply on their behalf. In addition, some children might lack a valid ID and/or might not be able to provide evidence of their residence in the UK before coming into care. Other vulnerable groups include rough sleepers, victims of domestic abuse, victims of modern slavery and migrant Roma communities. According to government statistics, which tend to underestimate population numbers, there are currently at least 4,250 EEA nationals who qualify for homelessness assistance, 101 000 victims of domestic abuse, 1,400 victims of modern slavery and 200,000 Roma people, respectively. The numbers add up quickly.

Thirdly, some people might know about the EU Settlement Scheme, but struggle to navigate the application process. This could be due to practical difficulties such as language barriers, mental health problem or people with cognitive disabilities. It could also be due to technical difficulties, for example low digital literacy, low general literacy, or age. If we do the math again, these categories account for at least 600,000 vulnerable individuals: 244,000 people with language difficulties, 15,000 individuals who say their mental health impacts their daily activities, 42,000 people who have never used the internet before, 300,000 EEA citizens who have no formal qualifications, and 58,000 people aged over 75.

Lastly, people who lack evidence to prove their eligibility will also fail to acquire status, even though they might qualify for it. The biggest groups here are people who lack identity evidence to demonstrate their EEA nationality, of which there are at least 100,000 in England & Wales, and people who lack evidence of their relationship to a qualifying EU citizen. These people cannot simply rely on their residency in the UK to acquire status under the settlement scheme, but also need to prove that their relationship with a qualifying citizen is genuine. The number of people qualifying for status based on their family members is unknown.

Finally, an important group to mention are the people who may have acquired pre-settled status now, but who might now know or forget to upgrade that status to settled status once they have reached the five-year continuous residence requirement.

Need I go on? The report shows that traditionally vulnerable groups, be it people in poverty, social isolation, or living in precarious conditions, are more likely to miss the Scheme deadline than other EEA nationals. People without bank accounts, or leases, or bills in their name. It also shows how enormous that group of people is, and how many people may therefore end up without a status. This is why immigration practitioners call the EU Settlement Scheme a “Windrush Scheme on steroids” in the making. The Scheme is set up to reinforce existing inequalities, and filter out applicants who are perceived as less useful or desirable in British society, as people from challenging backgrounds are most likely to slip through the cracks and end up being in the UK unlawfully through no fault of their own. no matter how much money the government throws at their EU Settlement Scheme outreach campaign, not everyone that needs to know about the Scheme will be made aware of it.

Immigration practitioners have cautioned about this since the Brexit vote; the Migration Observatory report confirms it yet again. Meanwhile, the government knows about it, yet does nothing to ensure change. That should tell any layman enough about the intentions and goals behind the Scheme.

If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.

The EUSS grace period: what protections are in place for late applicants to the EU Settlement Scheme? by Charlotte Rubin

The Brexit transition period is set to end at 11PM on 31 December 2020, after which the UK will officially break with the EU and EU law will no longer apply to UK territories. For the purposes of the EU Settlement Scheme, the government has provided for a “grace period” of six months in which EEA nationals can still apply for status under the EU Settlement Scheme without losing their rights. That grace period will end on 30 June 2021, after which EU citizens in the UK who have not acquired status under the Scheme will become unlawful residents and will be considered “late” applicants.

Draft legislation proposals reveal how the government intends to protect (most) of the people eligible to apply to the EU Settlement Scheme, but who have failed to do so before the end of the transition period. It sets out that during the grace period, economically active EEA nationals and Swiss nationals will automatically remain lawfully in the UK. They will also be protected if they do apply before 30 June 2021, but their application is unresolved when that deadline passes.

For economically inactive individuals such as students and self-sufficient EEA nationals, remaining legally resident will be more complicated. The deadline for application is still 30 June 2021, and until that day, economically self-sufficient people can stay in the UK. However, according to the draft legislation, if economically self-sufficient people have applied by the deadline but are still waiting for their application outcome on 30 June 2021, they risk losing their status and be found illegal residents in the UK for the period between 30 June 2021 and the conclusion of their application. It is also unclear whether during the grace period itself, they are considered lawful residents or merely granted relief from hostile environment policies, but still considered unlawful residents. Having such a period of unlawful stay on your resume can have far-reaching consequences when trying to apply for visas or re-enter the UK from abroad.

In order to avoid this period of unlawful residence, economically inactive applicants are encouraged to apply to the EU Settlement Scheme early. If they cannot do so, for whatever reason, they are advised to take up comprehensive sickness insurance (CSI) before the transition period ends (meaning before 31 December 2020), as holding CSI will protect them from losing their right to reside and become unlawful residents.

However, the cost of CSI is high and often out of reach for students and pensioners, who form a large part of the economically self-sufficient population affected by the proposed legislation. That is why practitioners and third-party actors in the field advocate for the government to drop the CSI requirement, rather than force a group of people to purchase insurance at a time when financial stability is increasingly challenged due to COVID-19.

Christopher Desira, founding solicitor at Seraphus, confirms this. “I just can’t see any reason why those citizens who do not currently reside in accordance with the EEA Regulations could not have been included as covered by the Statutory Instrument [the proposed legislation], for example, by disapplying the CSI requirement. The main purpose of the Statutory Instrument is to provide for a grace period rather than any additional rights relating to free movement and so I cannot understand why the government would exclude a potentially significant number of citizens.”

The number of people affected by this system is, like many other EU Settlement Scheme statistics, unpredictable, and will depend on various factors including the Home Office backlog of pending applications by the deadline of 30 June 2021, the number of outstanding appeals on that same date, the EUSS outreach, and the number of people who are aware of the CSI requirement.

There are other unanswered questions. For example, the issue of travelling. If an EU citizen who has not applied to the Scheme leaves the UK temporarily after the end of the transition period, but before the EUSS deadline, how will they be allowed re-entry to the UK? Presumably, the Home Office will allow EU citizens to be visa free nationals through mutual agreements, like US nationals are now for example, so that these individuals can return to the UK as temporary visitors, and then apply to the EUSS whilst here on their visitor visa. However, these are presumptions – there is no guarantee, or legislative proposal to warrant them. It is impossible to predict how flexible or welcoming the post-transition period rules at the border will be, especially in light of the state of the Brexit negotiations at the moment.

Additionally, for non-EEA family members who rely on derivative rights to apply to the EUSS, all of these issues will be even more complicated. Not only are non-EEA nationals applying based on derivative rights not covered by the proposed legislation, their immigration status is also unclear during the grace period between 1 January 2021 and 30 June 2021.

Although the proposed legislation does not break the law or contradict EU citizen rights guaranteed under the Withdrawal Agreement, immigration professionals and third-party actors have said that it is flawed, as the CSI requirement is largely unknown to the wider population and only complicates EEA nationals’ plight to stay in the country legally.

If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.


EU migration policy fails yet again as Moria refugee camp fire leaves thousands homeless by Charlotte Rubin

Thousands of refugees and migrants were forced to flee the overcrowded Moria refugee camp on the Greek island of Lesvos after multiple fires erupted on Tuesday night. Due to the flammable nature of refugee housing at the camp, the fire spread rapidly and by Wednesday morning, most of the containers and tents as well as other facilities had been burned to the ground.

Charity and activist groups on the grounds have confirmed that returning to Moria is not an option, since the camp was effectively destroyed by the fire. Those who were living in Moria are now left with nothing; already traumatized by their experience traveling to Europe, they have now lost the few belongings they still had, with no idea of where they will end up next.

Greek authorities were quick to accuse migrants of deliberately starting the fire as a reaction to COVID-19 related lockdown measures which had just been implemented after 35 people at the camp tested positive for the virus. But the real culprits are not the refugees living at the camp – it is the EU policies that enabled circumstances under which such a blaze or other catastrophe seemed unavoidable.

There have been concerns about poor conditions and overcrowding at Moria, Europe’s largest refugee camp, for years. In theory, it has the capacity to house about 3000 migrants. In reality, it was sheltering over 25000 people at its busiest time. Since the COVID-19 outbreak, that number was halved to about 12000, of which at least 4000 were children and young adults. A number of young unaccompanied migrants were relocated to other EU member states, including the UK (https://www.seraphus.co.uk/news/files/9ceb468e732f0163c7ddd1f8de1d7596-30.php). Even so, the camp was still housing more than four times the number of people it was designed for in abysmal conditions, with many of them sleeping in self-made tents or even in the open air.

During the COVID-19 outbreak, conditions worsened, as it quickly became clear that social distance and good hygiene are impossible to maintain in the overcrowded camps. Doctors Without Borders accused the Greek government and EU leaders of using the pandemic as an excuse to exert control over migrants and refugees. The Doctors without Borders spokesmen went so far to state that the conditions that allowed for this fire to happen were not accidental, but rather a deliberate policy put in place by the EU to deter migrants from coming to the island, which is located just 10 kilometres from the Turkish coast.

This policy failure goes back to the 2015 migration “crisis,” when Germany emerged as one of the only EU countries taking action on the issue by accepting over one million refugees into Germany instead of looking the other way or fighting with other Member States. After the Moria fire, Germany rose to the occasion again, as Armin Laschet, the governor of a region in western Germany, said he was willing to admit up to 1000 refugees from the camp as part of a wider European resettlement programme that has yet to be developed.

That programme is long overdue. Earlier this year, Commission President Ursula von der Leyen promised a new migration pact proposal "right after Easter." It never materialised, because the same disagreements from 2015 persist and grow deeper as time goes on. Greece, Italy and other Southern countries have long sought a mandatory system to redistribute asylum seekers across the EU (which could help empty overcrowded camps like Moria) while Central and Eastern countries like Hungary and Poland are implacably opposed to such compulsory relocations. Now, the proposal is expected to be presented at the end of September, to be discussed by EU ministers during the fall, and be implemented in 2021. Previous delays have come at a great humanitarian cost – and there is no guarantee that this time, the proposals will fare any better.

Ironically, Brussels now said it would help with the immediate relief effort for the Moria camp. European Council President Charles Michel said his "thoughts go out to all those who have been put in danger" while Commission Vice President Margaritas Schinas is due to travel to Greece on Thursday for an emergency meeting.

These empty words are not enough. The EU may not be responsible for all the conflicts that force people from their homes, but there is no doubt about who is to blame for the 12000 displaced people who are homeless following the fire. The EU, with its lack of coherent policy on migration, is fully responsible for the erosion of key humanitarian protection systems, the heightened border security regime, the criminalisation of rescue ships, and for making life in reception camps unbearable for vulnerable people.

If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.


EUSS quarterly statistics: paper applications, Zambrano carers and a worrying rise in refusals by Charlotte Rubin

Since July 2020, the Home Office EU Settlement Scheme monthly statistics no longer include breakdowns by nationality, age group, or local authority details. The new reporting style lacks detailed information about EUSS applications overall. This information is now only released with more in-depth analysis as part of the quarterly statistics. At the end of August, the first set of quarterly statistics since this change in reporting style were published, with all the detail analysts had been missing. Here, we break the numbers down for you.

In total, the number of applications received by the end of July surpassed 3.8 million, of which over 3.4 million have been concluded. In July alone, 92,000 applications were received, just below the June figure of 100,800. Of concluded applications, 57% were granted settled status and 41% pre-settled. 76,000 or 2.1% had other outcomes. For July alone these figures were 62,600 (47%) settled status, 52,000 (39%) pre-settled stats and 18,500 (14%) other outcomes.

The trend of rising other outcomes (including refused, invalid, withdrawn and void applications) continued over the last quarter. Notably, the combined amount of refusals in June and July (3,700) account for over 80% of the total amount of refusals since the Scheme’s launch in 2018. Concerning invalid applications, 11,800 applications were found invalid in July and 9,000 in June, thus accounting for 60% of invalid applications so far. Additionally, 4,400 applications were withdrawn in July, the second highest monthly total ever recorded.

This is the first release of statistics that includes reporting on paper applications, of which there have been about 10,000 so far. Paper applications are often some of the most complex applications under the scheme, as they are for example what people without valid ID or relying on derivative instead of direct rights of residence rely on to obtain their status. This could partly explain the steady uptick in refusals and other outcomes; the less straightforward the applications, the more reasons to refuse the Home Office can find.

Paper applications concluded under the Chen, Ibrahim & Teixeira and Zambrano routes and as a family member of a British Citizen totalled 2,870, so over a quarter of all paper applications up to June 2020. These were mostly Family member applications (1,530), and Zambrano applications (1,260). Whilst all Family members applications concluded had a settled or pre-settled outcome, 61% of Zambrano applications concluded so far have been refused. More specifically, applications under derivative rights account for only 1.6% (830) of all other outcomes, yet 92% of these (770) were refusals under the Zambrano route.

Zambrano carers are non-EU citizens who are primary carers of a British citizen, and have a right to reside in the UK under EU law, relying on the judgment an EU law case Zambrano. As Luke Piper of campaign group the3million puts it, Zambrano carers are “usually single mothers with small British children fleeing domestic violence”, in other words some of the poorest and most vulnerable applicants under the Scheme. Before the EU Settlement Scheme, Zambrano carers used to qualify for a right to reside under certain circumstances, but had no path to settlement. In theory, under the Scheme, they can now rely on residual rights to apply for pre-settled or settled status. However, the statistics show that in practice, it is much harder for Zambrano carers to obtain status under the EUSS than for other eligible applicants. In fact, crunching the number shows that Zambrano refusals account for 25% of all refusals made to the scheme so far.

Breaking other outcomes down by nationality, three nationalities and non-EEA nationals account for over half of “other outcomes” in the UK: Romanian applicants represent 20% of other outcomes, Polish nationals 17% (8,710), Portuguese nationals 9% (4,820) and non-EEA nationals relying on derivative rights 8% (4,370). Comparing these numbers to the number of applicants from each of these nationalities, puts things into perspective, as it becomes apparent that although Romania account for only 16% of the total number of applicants, Portugal for 9% and Non- EEA nationals only 4%, their percentages of other outcomes are much higher, meaning they are disproportionately represented in other outcomes. Especially non-EEA nationals, who constitute only a fraction of all applicants (4%), but get twice as much refusals (8%), are much less likely to succeed in their application. Polish nationals are the only ones in the top three EEA nationalities that are not disproportionately represented in their share of other outcomes, as they account for 20% of all concluded applications.

Finally, if we zoom in on London, where majority of EUSS applications are made, we can see that the total number of applications up to June were 1,323,200. The applications concluded were 1,236,000, of which 109,200 were concluded since the last quarterly statistics in March. The proportion of other outcomes in London is roughly comparative with the total percentage of concluded applications in the area.

The Home Office has these figures all along, but only showing it publicly now. This leaves certain groups of people with higher refusal percentages with a short period to re-apply or appeal their outcome before the deadline of 30 June 2021 passes.

If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.

The problems of a digital-only immigration system by Charlotte Rubin

When the government first outlined its vision for a new, post-Brexit immigration system in December 2018, they clarified that they wanted the system to be modern, efficient and in keeping with the “shift towards digital status in all areas of life”.

The first large-scale project where this “shift” became prominent is the EU Settlement Scheme, the framework under which EU citizens need to apply for status if they want to remain lawfully in the UK after the end of the transition period on 31 December 2020. Under the Scheme, EU citizens do not receive physical proof of their status, having to rely instead on a digital-only status, which they can access via the government website.

Under the hostile environment, introduced by Theresa May in 2012, the government forces service providers like landlords, employers, banks and universities to ask everyone they provide services to prove their status, effectively delegating its border control responsibilities to non-governmental entities. As a consequence, non-British nationals in the UK have to prove that they are legal at every turn. In order to live and survive in the UK as a non-British national, easy access to proof of one’s immigration status is therefore essential.

The Home Office argues that the digital-only status reflects that, as it allows EU citizens to “check their status from anywhere, at any time” from their phone. The government stated that “the EU Settlement Scheme protects the rights of EU citizens in UK law and gives them a secure digital status, which unlike a physical document, cannot be lost, stolen, damaged or tampered with”, selling the digital-only access as advantageous and useful for all parties involved. This reasoning fails to consider many factors which can prevent EU citizens from accessing their status, and therefore, accessing their rights.

Firstly, sharing and evidencing a digital status is hindered by numerous practical obstacles such as lack of IT knowledge, literacy, language barriers, or age differences. At Seraphus, we have encountered many EU citizens, especially elderly or isolated communities, who for example do not have email addresses or phone numbers. Both are necessary not just to apply for (pre)settled status, but also to access and share their status with service providers further down the line. For now, free advice and support is available to help EU citizens who for whatever reason are not secure in their application, apply under the EUSS, but there is no indication that this support will carry through once the deadline for application has passed, and citizens will need assistance to change, update or share their status instead of simply to obtain it.

This will harm many EU citizens once the points-based system come into force in January 2021. Most importantly, EU citizens are highly likely to be discriminated against similarly to how it occurs against third-party nationals today under the “right to rent” rules. In fact, only 3 in 150 landlords said they would be prepared to do these digital checks when renting out a flat, meaning that candidates with physical proof of their status will be prioritised over EU citizens who have go through the hassle of accessing their status online. The risk of being discriminated against increases, as it always does, for more vulnerable segments of the population, including those from isolated, older or BAME communities, women, children, and those with disabilities.

As Christopher Desira wrote, barriers also exist for the third-party requesting access to the status, multiplying the likelihood of discrimination. For example, a private landlord with a basic understanding of English and IT will find challenging to access and understand an EU citizen’s digital status, and therefore prefer to rent their property to someone where that hurdle need not be overcome, i.e. a British national who simply has to show their passport to prove that they have the right to rent in the UK.

Thirdly, the risk of any type of digital-only access scheme is that there can be a system outage at critical times, leaving EU citizens out in the cold when needing to show their status. In addition, digital security is a hot topic. Digital records can be breached, hacked or made unavailable, with not only consequences for the EU citizen who at that moment is unable to prove their status, but also for their privacy in the longer term. How securely is all this digital data stored, what are the contingency measures in case of a breach, and who is the data shared with? The government have answered none of these arguably critically important questions.

Non-EU family members who are eligible under the EUSS do receive a physical, credit-card sized document evidencing their settled or pre-settled status, so it is clear that if the Home Office wanted to, they could give EU citizens the option to request a hard copy document as well. The question remains why they then decided against it after a petition calling for physical documents as proof of (pre)settled status was brought to them in August 2019. Physical proof of immigration status, even on an optional basis, is not only easy implemented, but also an important basic right, especially since the government’s own assessment concluded that digital-only access to status would cause serious issues, and that a physical backup should be retained until the online system is streamlined and perfected to a standard which actually benefits EU citizens instead of hurting them.

If you have any questions regarding absences or the EU settlement scheme, please do not hesitate to contact us here or send us a question on WhatsApp.

Continuous residence for the purposes of the EU Settlement Scheme, and the effect of COVID-19 by Christopher Desira and Charlotte Rubin

For an applicant to the EU Settlement Scheme to receive either pre-settled or settled status, they will have to fulfil three key criteria. Firstly, they will have to prove that they are eligible to apply by evidencing their identity and nationality, and if necessary, their family relationship. Secondly, they will have to answer a few questions about criminality to see whether they are suitable for (pre)settled status. Finally, they will have to confirm and prove a period of continuous residence in the UK. This is the requirement that defines whether the applicant will be granted pre-settled or settled status, the latter obviously being a stronger and more permanent status for the applicant.

To obtain settled status, an applicant has to have been continuously residing in the UK for a five-year period. Applicants who are not currently living in the UK, but are applying based on their historic residency, will have to maintain their eligibility by proving that they have not been outside the UK for a continuous 5 year period immediately after the 5 year qualifying period of residence on which their application is based.

If a person has continuously resided for less than 5 years, they will be on course for pre-settled status. Once they obtain pre-settled status, they will need to continuously reside in the UK to maintain their status and further down the line, to reach the five-year requirement to qualify for settled status.

They can maintain their continuous residence by living in the UK for more than six months out of every twelve-month period. Applicants are permitted one period of absence of more than 6 months (but which does not exceed 12 months) for an important reason such as childbirth, serious illness, study, vocational training, overseas posting, or compulsory military service, without losing their pre-settled status. If the absence is longer, and it is not for an important reason, it will break continuous residence, and they will not be able to apply for settled status.

This might be the way the Home Office decides to deal with COVID-19 related absences – either it’s an important reason and the applicant “uses” their exception for it, or they return to the UK before 11pm on 31 December 2020 so they can re-start a new period of residence in the UK.

But this pre-existing rule is not enough, and does not cover every scenario where absences will affect those under the EUSS.

There are two key dates in relation to the EU Settlement application process: the eligibility deadline and the application deadline. The application deadline is 30 June 2021, but a person has until 31 December 2020 to become a person eligible to apply. This means that for EU citizens, residence in the UK must commence before 11pm on 31 December 2020 in order for them to qualify for status. Similarly, for most family members, the relationship must exist before 11pm on 31 December 2020 for the relationship to be considered under the EUSS.

As a consequence, absences can affect both EU citizens and family members in different ways. For example, imagine a Bulgarian national intends to come to live in the UK and would like to do so under the EUSS. They must move to and commence residence in the UK before 11pm on 31 December 2020 in order to get pre-settled status, which after five years of residence can then be “upgraded” to settled status. If they cannot move before 31 December 2020, then they will have a much more difficulty immigration process to get through in the new 2021 immigration system. This is quite a straightforward scenario – EU citizens know that their time to enjoy free movement and move to the UK is running low.

More pressing will be the ability to establish a family relationship before 11 pm on 31 December 2020. Imagine a French national who is intending to marry a Cameroon national. Imagine the couple have not known each other for very long, so they are not entitled to the status of “durable partners,” but they intend to get married in April 2020. Due to COVID-19, the marriage was delayed; it could not take place either in the UK or Cameroon due to the travel restrictions and social restrictions, most importantly because neither party to the marriage could travel. As a consequence, come the EUSS deadline for eligibility of 31 December 2020, the couple will be unable to establish their relationship existed (in the strict sense of the rules) before 11 pm on 31 December 2020, and as a consequence the Cameroon national will not be able to bring herself within the scope of EUSS status.

The couple will be locked out of the easier EUSS family permit route and will instead need to consider the strict rules for entry as a spouse, which are much more complicated. If the French national has previously obtained settled status under the EUSS, they will be able to sponsor their Cameroon partner under the spouse visa rules. If the French national merely has pre-settled status, however, this will be impossible. They will be separated from each other for a considerable period of time until the French national acquires settled status and then applies to bring their spouse in on a spouse visa.

These types of situations are not just typical for married couples. Unmarried (durable) partners must be in their relationship with their EEA partner before 31 December 2020 as well. To be eligible to apply for (pre-)settled status as a durable partner, the durable partnership must first be assessed as genuine by the Home Office. “Genuineness” is generally hard to prove. In the case of a durable relationship, the Home Office requires durable partners to apply for a document under the EEA Regulations to evidence their relationship. That document must be issued and received before the durable partner can then apply for status under the EUSS, meaning that if you’re an unmarried partner (i.e. durable partner) an application for that document must be made before 31 December 2020. If you’re a dependent relative (other than someone in the ascending lines of the EU citizens, spouse, or civil partner of the EU citizen), again, you must hold a relevant document for which an application must be made before 31 December 2020.

So, if COVID-19 prevents an applicant from being able to travel and/or apply for the necessary documentation in time, then they will be locked out of the EUSS. There are countless scenarios where this could go very wrong. For example, if an EEA national has died due to Covid-19, then their family members who are left behind should be able to apply for pre-settled or settled status. But under the current rules, those family members would only be eligible for status if they lived with the EEA national for at least one year immediately before they passed away. Setting aside the tragedy and trauma of losing a family member without even being able to say goodbye to them, what happens if the family member was unable to return to the UK in time due to travel restrictions, and they could not reach one year of living together? They will be locked out of the EUSS.

Or what if an applicant wants to retain their residence rights after divorcing their EEA partner? In order to do so, the marriage needs to have lasted for at least three years before starting the divorce proceedings, and both partners must have been living in the UK for at least one year before they apply. Again, if COVID-19 prevented the applicant from reaching that one year threshold before 31 December 2020, they will be locked out of the EUSS and it will not be possible for them to retain their rights.

This would simply be unfair. COVID-19 has had an impact on virtually every aspect of society and government. The immigration system is no different. The process of Brexit has been halted, slowed and changed by the virus as well. That is why the Brexit Civil Society Alliance wrote a letter to the Home Secretary asking for exemptions to the rules to deal with any breaks in continuous residency caused by COVID-19, so that no EU citizen is forced out of status through absolutely no fault of their own.

The Home Office replied stating that "continuity of residence by EEA and Swiss citizens applying to the scheme and who may have been stuck overseas as a result of COVID-19 is one of a number of issues the Home Office is working through. We are taking a pragmatic approach to ensure individuals are not penalised for issues arising from the COVID-19 pandemic."

Based on this response and our internal discussions with the Home Office, it doesn’t appear that COVID-19 will kill applications under the EU Settlement Scheme. In fact, the Home Office have confirmed verbally that absences due to Covid-19 will be considered as a serious reason for those who are on course to apply for or have received pre-settled status. This means that one absence of more than six months but not more than twelve for COVID-19 related reasons will not be considered to have broken continuous residence.

Although it is a step in the right direction, this is the only flexible approach the Home Office have referred to, and it fails to cover all of the other possible scenarios where absence will cause other problems.

Home Office policy on absences affecting those under the EUSS is yet to be determined because, they stated, COVID-19 related absences is an issue that affects all immigration categories and not just the EUSS, so they are trying to work out a holistic approach throughout the immigration system. It might be that the Home Office are taking this issue seriously, and it’s therefore taking time to put together a comprehensive, flexible and compassionate policy to deal with it. However, it might also be that part of it was a wait and see approach to see how serious of an issue absences might be for some visa categories.

But a wait and see approach will not suffice. As EU free movement law fully applies during the transition period, the issue of absence has to be assessed under Article 16(3) of the Free Movement Directive in the same way as for mobile EU citizens having their residence in an EU Member State. A longer absence due to the coronavirus/COVID-19 crisis should be treated as force majeure (unforeseeable circumstances that prevent someone from fulfilling a contract) and should not, therefore, be deemed to break continuous lawful residence.

In the meantime, any absences due to Covid-19 must be documented and evidenced, as the Home Office never takes an applicant’s word for truth. If your continuous residence is endangered due to COVID-19, you are going to need to have evidence that the enforced absence is linked to Covid-19 as well as that your return to the UK was completed as soon as it was safe and reasonably possible. The reality is that unless the Home Office decide to declare COVID-19 as an event of force majeure, the burden is going to be on applicants will need to put their case to the Home Office in order to have the best chance that discretion will be exercised in their favour.

If you have any questions regarding absences or the EU settlement scheme, please do not hesitate to contact us here or send us a question on WhatsApp.


EU Settlement Scheme Refusals and Other Outcomes: What does it mean? by Chris Benn

In the EU Settlement Scheme (EUSS) statistics produced by the Home Office on a monthly and quarterly basis, refusals are contained within the statistics for what is known as “other outcomes”. This means that refusals constitute EUSS decisions that do not result in either a grant of indefinite leave to remain (settled status), or limited leave to remain (pre-settled status). It is important to understand the other outcomes that can occur under the EUSS as this will dictate what action, an applicant should take. The types of outcomes that can occur are the following:

- Invalid Application
- Withdrawn or Void outcome
- Refusal to grant EUSS status
- Grant of pre-settled status not settled status (note this is not recorded as another outcome in the Home Office EUSS statistics. It is not recorded as a decision at all as the HO only reports grants of status)

The most recent set of Home Office statistics, which cover the lifetime of the EUSS to the end of March 2020, state (to the nearest 100) there have been 10,000 invalid applications, 23,900 void or withdrawn outcomes, and 600 refusals. These “other outcomes” have been expanded on below with an explanation of why a person would receive this outcome and what, if anything, they can do about it if they disagree with the outcome.

Invalid applications

For someone who wishes to be granted status under the EU settlement scheme, the first hurdle to jump is to have your application considered as valid. Appendix EU of the Immigration Rules tells what you must to do to make a valid application:

EU9. A valid application has been made under this Appendix where: (a) It has been made using the required application process; (b) The required proof of identity and nationality has been provided, where the application is made within the UK; (c) The required proof of entitlement to apply from outside the UK has been provided, where the application is made outside the UK; and (d) The required biometrics have been provided.

The required application process means either using the online application form unless you are applying in a category that requires a mandatory paper application form (applications involving derivative rights, ‘Surinder Singh’ and ‘Lounes’ cases or, where the applicant has no valid ID document), or you have convinced the Home Office that you should be allowed to a use a paper application form because you are not able to use, or do not have access to the IT needed to complete the online form. You will not be able to apply to the EUSS via any other route.

The required proof of identity and nationality means having a valid passport or ID card if you are an EEA/Swiss citizen. If you are a non-EEA/Swiss family member applicant, it means using a valid passport, a valid biometric resident card issued under the EEA Regulations or, a valid biometric resident permit in an immigration category. There is a caveat to providing a valid document in this list which, is the Home Office can allow alternative evidence of identity and nationality due to circumstances beyond the applicants control or, because of compelling practical or compassionate reasons. The required biometrics means a photograph of the applicant for all applications and in the case of non-EEA/Swiss applicants, fingerprints unless they hold a valid biometric residence card issued under the EEA Regulations or under Appendix EU (for applicants holding pre-settled status and making a settled status application).

Failure to complete these steps means that your EUSS application will not be validated. In other words, there is no consideration as to whether you are entitled to be granted EUSS status (consideration of your eligibility or suitability for status), because you never reach this stage of the process. The way to know that you have completed the validation process is that you receive a certificate of application from the Home Office; this is a PDF or physical letter (in cases where a paper form is submitted), that confirms a valid application has been made. Unless you have received this letter, you have not made a valid application and therefore will not receive a decision on whether you are eligible for a grant of EUSS status. It is therefore extremely important that you receive the certificate of application and if you do not, you should investigate with the Settlement Resolution Centre, what part of the validation process remains outstanding. An application that is not validated will eventually be declared invalid and removed from the Home Office system. If this situation arises then generally the only thing to do will be to reapply to the EUSS rectifying the reason why the application was declared invalid.

Withdrawn or Void applications

An applicant can choose to withdraw their application themselves by notifying the Home Office through the Settlement Resolution Centre. For a valid application, the request to withdraw can be made anytime between the submission date and before a decision is made. A request to withdraw is made either using the online Settlement Resolution Centre contact form or by writing to the Home Office in Liverpool. It should be noted that the Home Office is not obliged to withdraw an application if there is reason to believe that it would be refused were it to be fully processed.

A void outcome is where a British citizen, or a person who is exempted from immigration control, attempts obtain immigration status under the EUSS. As these two categories of persons cannot hold immigration status, their attempt to obtain status through the application process is considered void. For British citizens this is an uncontroversial outcome, however, it is not always a straightforward assessment as to whether someone is immigration exempt (there is separate Home Office guidance on who is considered exempt). Exemption from immigration control is based on a person’s circumstances and will generally be temporary. This means that once a person is not exempt from immigration control, they will require immigration status if they wish to remain residing in the UK lawfully. The Home Office has answered when questioned on this point that, for a person who is eligible for status under the EUSS, but for the fact they are presently exempt from immigration control, they will be able to apply to the EUSS in the future – and crucially beyond the 30 June 2021 deadline – at the point when their circumstances change and they are no longer exempt.

Refusals

The EUSS statistics define a refusal outcome where a valid application results in no grant of immigration status. Appendix EU provides two reasons to refuse an application, firstly on a suitability basis (that a person’s character or conduct makes them unsuitable to be granted status), or, secondly on an eligibility basis (that they have failed to demonstrate that they are eligible for a grant of status). Within the latter category, you can break down the failure to demonstrate eligibility in two:

- failure to show UK residence eligibly and / or;
- failure for a non-EEA/Swiss applicant to show eligibility through a qualifying family relationship (either in the present or in the past)

(a) Eligibility refusals and the burden of proof

It is important to remember that in a constitutive application system, it is incumbent on the applicant not just to be eligible based on their circumstances but, to be able prove with evidence that they are eligible for a grant of status. This means, in most cases something that is claimed by an applicant which goes to the heart of their eligibility under the EUSS, must be proved by the evidence they provide. For example, evidence that the applicant is a UK resident before the end of the transition period (such as a utility bill or bank statement) or, proof that a non-EEA/Swiss family member is related to an EEA/Swiss citizen or qualifying British citizen (a marriage certificate for example). For those applying under the dependent relative and durable partner family relationships, the applicant must apply with a document that has been issued under the EEA (European Economic Area) Regulations otherwise the application will automatically be refused on eligibility grounds.

The burden of proof in civil cases is “the balance of probabilities” which means that the evidence shows that something claimed is more probable than not to be true (in other words more than 50/50 to be true). The Home Office has stated that in respect of the eligibility refusals that begun from February 2020 onwards, multiple attempts (sometimes more than 20), were made to contact applicants and request the evidence from them that would show that they eligible for a grant of status. In other words, it was the applicants’ failures to provide evidence in spite of these requests that meant that the burden of proof had not been met with the refusal decision following. Without understanding more about the grounds that the refusal decisions were made, it is impossible to know whether the outcomes were correct or not. These cases do though show the importance of ensuring contact information given to the Home Office in the application is correct and from the Home Office side, ensuring that every effort is made to contact applicants when issues arise.

After the end of the grace period for EUSS applications (currently the grace period ends on 30 June 2021), there will start to be eligibility refusals where a holder of pre-settled status, cannot prove that they have been continually resident in the UK for the 5 years normally required to be granted settled status. There are some questions that remain about this situation however, the working assumption is that after the end of the grace period, an EUSS applicant who holds pre-settled status cannot be granted a second period of pre-settled status. This means that a pre-settled status holder has to be able to prove their eligibility for settled status otherwise, they will be refused status outright.

(b) Refusals based on suitability

Before February 2020, there had been seven refusals of EUSS status because the applicants failed the suitability assessment required under Appendix EU. The Home Office states the suitability criteria is generally met where the applicant has demonstrated in their application:

- they are not subject to a deportation order/decision or an exclusion order/decision
- they have not breached the relevant thresholds for serious or persistent criminality
- they have not submitted false or misleading information or documentation in their application

Since the Home Office began refusing applications on eligibility grounds, the statistics provide a percentage of which applications are refused on suitability and which are refused on eligibility. The balance in the March 2020 statistics report says, “of the total refusals, 98% were refused on eligibility grounds and 2% were refused on suitability grounds”. Although the 600 refusals are a figure rounded to the nearest 100, 2% refused on suitability grounds equates to approximately 12 suitability refusals with the remainder being made on eligibility grounds.

(c) Paper application refusals

The March EUSS statics included for a statement on EUSS applications made using a paper form:

“Applications made using a paper form are captured and processed using a separate caseworking system once they have been received. At present, paper-based applications are not included in the published statistics. This means that the total number of applications received, grants of status, and other outcomes (refusals, withdrawn or void, or invalid cases) are not fully captured in the report. The Home Office is currently developing electronic integration of the two systems with information on paper applications due to be included in the next detailed quarterly EUSS statistics release in May 2020”

As the mandatory paper application process is generally reserved for more complex EUSS categories (the categories are set out above), it would be a reasonable assumption that the quarterly EUSS statistics will contain more refusal decisions based on eligibility grounds.

(d) Challenging a refusal decision

There are a number of ways in which to challenge EUSS refusal decisions, which option is available and most advisable will depend on the date of application and whether the refusal is based on suitability or eligibility. Generally, for a suitability refusal the only way to challenge the outcome will be to appeal to the Immigration Tribunal. The reason for this is because a deportation or exclusion decision results in a mandatory refusal of EUSS status and so, this decision must be overturned first in order for the applicant to be granted EUSS status. Repeated attempts to make fresh applications to the EUSS whilst a deportation or exclusion is in place will simply result in repeated refusals on suitability grounds.

With a refusal on eligibility grounds, there are three possible avenues of redress:

i) Appeal to the Immigration Tribunal (for applications made after 31 January 2020)
ii) Apply for Administrative Review of the refusal decision
iii) Make a fresh EUSS application (as long as this is done before 30 June 2021)

Which approach is best to take will be down to the individual circumstances of the applicant (noting that an Immigration Appeal is only available for recent applications). The Home Office decision will set out in writing the reason(s) why the applicant has failed to meet the eligibility requirements and it may require a lawyer’s input as to the best way to address the decision. For example, if the refusal was based on a lack of evidence and new evidence has since become available, it may be best to lodge a fresh application with the new evidence. If however, there is no new evidence available, it may be that the best approach will be to appeal to the Immigration Tribunal so an Immigration Judge can decide whether the balance of probabilities has been satisfied, based on what evidence was submitted to the Home Office. For refusal decisions where the applicant needs to argue that Appendix EU is in breach of the EU/UK Withdrawal Agreement, the only really option is likely to be an appeal to the Immigration Tribunal which has power to look outside of the wording of Appendix EU to determine if a person’s rights under the Withdrawal Agreement have been infringed. By comparison, an Administrative Review (or a fresh application), only looks at whether the decision was correct based on the wording of the Immigration Rules and accompanying caseworker guidance.

Pre-settled status not settled status

What is not included in the Home Office statistics is the outcome where an applicant believes that they should be granted settled status but instead, receive pre-settled status. The only reason this outcome can occur is where the Home Office says that there is not enough evidence to demonstrate that a person has resided in the UK for 5 years or more (unless they are applying in the category of “ceased activity” or as a child under 21 years linked to a sponsoring parent). A reason why these cases are not recorded as a refusal in the statistics is because an application to the EUSS is for either available immigration status, not specifically for pre-settled status or settled status.

Therefore, a grant of pre-settled status rather than settled status does not constitute a refusal in the mind of the Home Office. Someone who receives the incorrect status would probably argue that the HO recording they have been granted pre-settled status, rather than acknowledging the refusal of settled status to reach the pre-settled status outcome, is a question of semantics. There is no way to know how many people have experienced this outcome, as the EUSS application process only relatively recently started to ask applicants if they have resided in the UK for more than 5 years at the point when they apply. For those who feel that they should have received settled status instead of pre-settled status, refer to the section on challenging a refusal decision relating to eligibility refusals as the same methods of redress equally apply to this outcome.

Final thoughts…

Whilst we remain in the transition period, and even once we move into the grace period, for most other outcomes under the EUSS (suitability refusals being the exception), most applicants who need to do so – remembering that void outcomes do not need or cannot have, EUSS status - will be able to “have another go” with the EUSS. By this we mean, even an applicant with an outright refusal on eligibility grounds can submit a fresh application if they have the evidence to overcome the refusal ground. That is not to say that any refusal can be overcome as there will be cases where eligibility evidence cannot be obtained; for those who receive a refusal it is important to seek legal advice from a firm such as ours to understand the basis of the refusal and the best way to approach any challenge. For those whose applications are invalidated, it is extremely important that they make a valid application before the deadline to apply to ensure their lawful residence in the UK. The concern is, of the 10,000 invalid applications, how many applicants do not realise that their application was invalidated and think that they have successfully applied and received EUSS status? And finally, for those who have lived here for 5 years or more and feel they wrong were granted pre-settled status rather than settled status, we would encourage you to apply again to show that you are entitled to settled status; it is a superior immigration status and does impact on other important rights.










During Covid-19, did we forget about Syria? by Charlotte Rubin

Over 3.6million Syrian refugees made Turkey their home since civil war tore their country apart in the 2010s. Polls show that most of the Turkish population want them to leave. On February 28th, President Erdogan announced that his government would heed that request, and Turkey would no longer stop refugees from crossing over to Greece.

Mr. Erdogan’s promise of free passage to Europe led tens of thousands of migrants to leave Turkey and resume their journey to Europe. What the President failed to mention was that on the European side of state lines, borders would remain closed.

The current political impasse originates from the 2015 refugee crisis, when over 1 million migrants entered Europe from Turkey. In an attempt to stop the influx, the EU struck a deal with Mr. Erdogan. As part of that deal, the EU gave Turkey over 6.0 billion euros in aid. In exchange, Turkey promised to keep the refugees inside their borders and prevent them from migrating to Europe through Greece. When Turkey ran out of aid last year, Mr. Erdogan requested more funding to keep up his end of the bargain, but the two parties failed to reach an agreement.

In response to the arrival of so many people, Greece doubled down on their border security. The government sent riot police, armoured vehicles and 1000 soldiers to the Turkish border, and suspended the right to apply for asylum for a month. Greek authorities as well as rogue actors detained, assaulted, robbed, and stripped asylum seekers and migrants, and then forced them back to Turkey. Tens of thousands of people now find themselves in limbo between borders.

Greece, like all EU countries, is bound by the EU Charter of Fundamental Rights. The Charter recognises the right to seek asylum and guarantees protection from forcible return of anyone at real risk of persecution or other serious harm. Greece’s suspension of the right to claim asylum, in combination with their appalling treatment of migrants on the border, is a gross violation of human rights.

Yet this violation has received very little scrutiny. As the spread of COVID-19 pushed the images of men being shot, children being hit, and faces behind barbed wire to the back of the news cycle, these breaches of the 1951 UN refugee convention and EU law went unnoticed. Instead, Ursula von der Leyen, head of the European Commission, announced the distribution of a £609 million aid package to help and support Greece’s border infrastructure. She called Greece “our European shield”, and praised the country for its tough response, as it has helped avoid another “crisis” like the one in 2015.

Instead of taking collective responsibility, the EU, yet again, has shown lack of leadership on the issue of migration at an astronomical human cost. The only solution to this endless plight remains unchanged from 2015: meaningful change to EU asylum policy allowing for coordinated resettlement and shared responsibility for all EU member states. The UK should be leading the charge, accepting a number for resettlement and providing for safe routes to claim asylum in the UK. Instead, in the midst of a global health crisis, the violence and human suffering at the border persist. We should fight to end it and create an immigration which actually reflects the European discourse of enlightenment and human rights in practice, rather than the dysfunctional and divisive system that is in place now.




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