For EU/EEA citizens and their family members living in the UK, 30 June 2021 was an ever-important date: it was the cut-off date to apply to the EU Settlement Scheme, the program that allows those who resided in the UK before BREXIT to obtain legal status and remain in the UK.
All EU/EEA citizens living in the UK before 31 December 2020 are eligible to apply; the Scheme gives them temporary residence rights (pre-settled status) or indefinite leave to remain (settled status), depending on how long they have been here. Following EU law, the government allows people to apply after the deadline of 30 June 2021, though these applications are less straightforward.
Caseworker guidance lays out under what circumstances late applications may be accepted. Late applicants have to explain why they failed to meet the established deadline in their application. The guidance repeats that the general aim of the EU Settlement Scheme is to grant and not refuse status and that caseworkers should bear this in mind when evaluating the ground for a late application.
However, despite these assurances, the guidance also states that where an applicant made an in-time application to the Scheme that was previously refused, they will not generally be able to reapply as late applicants. The underlying logic is that if an applicant made an in-time application once, they were aware of the deadline and therefore have no “excuse” not to be on time the second time around. This means that people whose first application was refused, no matter on what grounds, generally would not be able reapply to the scheme now, since the deadline passed months ago. The Home Office has kept a window of discretion stating that reasonable grounds for a late application might exist, but it will depend on the circumstances. What entails “reasonable circumstances” we do not know; the guidance does not elaborate further.
What does this mean in practice? Essentially, the timely applicant whose application was rejected because they failed to provide certain documentation may not be able to reapply after obtaining the required documents. Of course, they can try to do so but this depends on the circumstances of their case. Because we do not know what circumstances would be deemed acceptable by the Home Office, this leaves a level of uncertainty as to whether a repeat application will be accepted. If someone wants a level of certainty, they should use the Administrative Review or the appeal procedure to challenge their old result.
But administrative reviews and appeals are more burdensome (and expensive) than a Settlement Scheme application, which is relatively straightforward, online, and free of charge. And administrative review may provide the opportunity to appeal a decision – but it does not necessarily allow applicants to make a new application if new information has been obtained since their refusal. So if a late applicant is not permitted to make a new (late) application, but only to challenge the old (in-time) application, they are stuck in a loop: the old application was most likely refused for valid reasons, which they have now tried to fix since they got the rejection, which is why they are now applying late, but their late application is subject to automatic rejection because they made an in-time application first. Thinking about this hurts my brain – and I am meant to be more or less aware of the rules as someone working in the field. In simple terms, the new guidance establishes that the applicant with a timely refusal who now has additional evidence to complete their application will be penalised for having applied in time in the first place. In contrast, the late applicant tout court can still obtain status.
This policy goes against what the Home Office previously advised: to reapply if your application is rejected. In fact, this version of the guidance is different from previous editions – yet the Home Office did not notify readers explicitly of this change. Perhaps they estimate that this is a small enough change to go unnoticed or that it does not have that big of an impact on eligible applicants. More likely is that they don’t care.
Under the Withdrawal Agreement PM Boris Johnson signed in 2020, EU citizens in the UK must have access to a process to challenge a decision they believe to be wrong or in breach of their rights. It is unclear, at this stage, whether the administrative review or appeals process fulfils this requirement. The new guidance may be challenged in court, but that will take time. For now, repeat late applicants may be refused on these grounds, and it remains a waiting game to see whether this will be corrected in the future.
According to the UN High Commissioner for Refugees, over 1 million people have fled Ukraine since President Vladimir Putin ordered his troops to invade the country on 24 February 2022. Where are they going, and what is the UK doing for them?
Ukraine has a total population of about 44 million people. The vast majority of those leaving are women and children, as men are obliged to stay in Ukraine and fight. Most of the displaced are crossing into neighbouring countries. According to the UN High Commissioner on refugees (UNHCR), Poland has accepted the highest number of Ukrainian refugees, currently standing at 548,000. People across the country have shown solidarity through donations, accommodation, and transport for those forced to flee. Hungary, Moldova, Slovakia, and Romania are next on the list, with close to 133,000, 98,000, 80,000 and 51,000 refugees each, respectively. The UNHCR projects that over 4 million people will have left Ukraine by summer, with a staggering 30% of newcomers (1.5 million) seeking refuge in Poland.
An additional 47,800 people have left Ukraine for Russia; presumably, these are mostly Ukrainian-Russian separatists who support the annexation of Ukraine in some shape or form, though they may not be supportive of this war. Belarus, which also shares a border with Ukraine, has barely received any demands for protection. Since most people fleeing are escaping the Russian regime, and Belarusian President Alexander Lukashenko has shown allegiance to Putin, this does not come as a surprise.
In theory, providing humanitarian aid to those in need should never be politicised. In practice, the current open-border policy towards Ukrainians is uncharacteristic of the European Union’s (EU) general approach towards migrants. Questions arise regarding the underlying motives of these policies, especially for countries like Hungary or Poland, who generally enforce some of the harshest policies and rhetoric against refugees in Europe. Just a few months ago, in November 2021, Polish authorities refused to let refugees from Syria, Iraq, Afghanistan, and Yemen enter the country, instead of letting them freeze to death at the Polish-Belarusian border. Today, Polish authorities do not even require Ukrainians crossing the border to show a valid passport. How can this be?
For one, Russia and Ukraine are geographically closer to Europe. This not only makes the threat more tangible, but countries in proximity to war and disaster are also naturally expected to step up and help out their neighbours. Similarly, at the height of the Syrian civil war in 2015, neighbouring Lebanon and Turkey bore the brunt of the burden of displaced Syrian civilians. This is only logical. Less logical and less noble is the political incentive to accept certain refugees but not others. Poland and Hungary, whose extreme-right governments often stand alone against the other 25 Member States in EU negotiations, are now reminded of the protection the EU gives them against an old empire looking to recuperate some of its former glory. Or so their logic goes: it is in these right-wing governments' interest to be anti-Putin more than it is to be anti-refugee. In other words, the ex-Soviet countries’ fear of Russian imperialism explains their sudden U-turn on migration and their sudden willingness to help victims of this fast-encroaching power.
Countries further afield are considering relaxing their policy to welcome Ukrainians, too. The EU has waived visa requirements for Ukrainian people. In Belgium, the government is considering waiving the requirement of having to formally request asylum, instead offering any Ukrainian who arrives in Belgium protection automatically as a “temporary displaced person.” This status grants them a one-year permit, extendable for two additional years, to live and work in Belgium, with access to benefits and public services. This policy proposal is based on Belgian law implementing an EU Directive which considers that when there is a mass influx of displaced persons who cannot return to their country of origin, it is necessary to “set up exceptional schemes to offer them immediate temporary protection.” This Directive was unanimously “activated” by the Council of the EU after holding a vote on 3 March. Belgium had said that if the vote did not pass at the EU level, they would set up their own scheme with similar conditions. In France, all Ukrainians whose right to stay is about to expire have received an automatic 90-days extension of their papers, with the interior minister Gérald Darmanin stating that such an extension may be repeated in the future. The government also expressed support to activate the EU Directive and grant Ukrainians temporary protection.
So what is the UK doing for Ukrainians fleeing their home country? Not much, it seems. Initially, Home Secretary Priti Patel announced that “immediate family members” of British nationals or Ukrainian people already settled here could join their family here, but not much more. After significant backlash, this policy has now been revised and the “Ukraine Family Scheme” allows for extended family members to join their family in the UK as well. Ms. Patel has also announced that businesses, charities and community will be enticed to hire Ukrainian citizens through a new humanitarian sponsorship visa route. Crucially, these applications must be made from abroad, from a visa application centre in Ukraine, Poland, Hungary, Moldova, Poland, or Romania, as visa requirements have not been waived for these applicants. In addition, the Home Office extended concessions to Ukrainians already in the UK, such as allowing them to switch into other visa categories that normally require applicants to leave the territory. Overall, the British response diverges from the European response by it being much cooler and far removed from the heat, or so the government seems to think. The UK government doesn’t like refugees from Ukraine; it doesn't like refugees from Syria; not from anywhere at all.
If you are Ukrainian and need legal advice / immigration advice, the Ukraine Advice Project is offering free services to connect Ukrainian citizens in need with legal professionals. If you want to contact us directly, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.