EU Law

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.



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.

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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