The Independent Chief Inspector of Borders and Immigration (ICIBI) is currently putting together a review of the EU Settlement Scheme (EUSS) to present to the government. As the official lawyers contracted by the European Union (EU) to provide legal and policy advice to the European Delegation in the United Kingdom on the EUSS, Brexit and EU Citizens' Rights, we made a submission to on the progress of the Scheme.
Applying to the EUSS is mandatory for all EU citizens and other EEA/Swiss nationals who wish to continue living in the UK lawfully after the transition period. EU citizens have until 30 June 2021 to apply under the Scheme. If they do not apply in time, they will be unlawful residents in the UK. The Scheme’s strong suits and shortcomings have been discussed many a time. Our data and experience, collected since we started working with the EU delegation in 2018, enables us to map certain problematic patterns within the scheme and the way it operates. In last week’s briefing, we discussed the EUSS process up until the stage of applying to the Scheme, with a focus and communication and outreach that has been done to reach vulnerable EU citizens who need to apply to the Scheme. This week, we look at the next stage, namely what happens after submission of applications.
The government has hailed the EU Settlement Scheme as a great success, with 98% of applicants under the Scheme being granted status, and relatively few applications being refused. These numbers do speak for themselves to some extent. In recent months, however, we have seen a rise in refused and void applications.
Applications can be refused for different reasons, the main ones being that the applicant is not eligible for status under the Scheme, or that they are not suitable for status. The last set of EUSS statistics which included a breakdown of eligibility versus suitability refusals were issued in May 2020. These statistics stated of the 2,300 refusal decisions, 1% are refused on suitability with the remaining 99% refused on eligibility.
This may seem like a small percentage of suitability refusals. However, it only reflects suitability refusals where a valid application has been made to the EUSS. The most vulnerable applicants who are at risk of having their application refused based on suitability grounds are prisoners and immigration detainees. These individuals are severely restricted in their ability to make an application to the EUSS, and lack the adequate legal aid to do so. As a consequence, the likelihood is that they will receive their deportation decision before they are able to lodge an EUSS application. They are then stuck in a vicious circle: the deportation decision prevents them from being granted EUSS status, but they did not know they had to apply before they received the deportation decision.
The effect of this is the same as a refusing an EUSS application on suitability grounds. The Home Office guidance on ‘EEA decisions taken on grounds of public policy’ sets a low bar for the issuing of a deportation decision, meaning that many of these EEA nationals only have to reach that threshold in order to be liable for deportation. Arguably, this is inconsistent with the approach required by the Withdrawal Agreement, which grants EEA citizens more extensive protections. In other words, these EEA citizens are being refused the rights and benefits of their respective Withdrawal Agreements. As things stand now, these cases are not being clearly reported in the statistics. As a consequence, it is difficult to assess whether or not there is a systemic denial of Withdrawal Agreement rights, but the possibility is definitely there.
Regarding refusals on eligibility grounds, which forms the other 99% of refusals, the narrative presented by the Home Office is that caseworkers will only refuse an application if they have made numerous efforts to contact applicants to seek additional information. It is only when these request for additional information are not responded to that the Home Office is ‘forced’ to issue an eligibility refusal. In reality, this presentation is not consistent where the application can be refused because the applicant is applying as either a durable partner, or a dependent relative. Family members and dependent relatives have to send a “mandatory document” proving their relationship with the EEA national as part of the application process. If they fail to do so, these cases are refused quickly once the Home Office has confirmed that the applicant did not submit a relevant document, without necessarily contacting the applicant to request for additional information. In fact, applicants whose application was refused on those grounds of failing to provide a “mandatory document” confirmed that the Home Office made no attempt to contact them to request the relevant document and instead, refused them after a significant delay only informing them about the requirement to hold a relevant document in the refusal decision.
Following from that, it is essential that refusal decisions based on the fact that the applicant has not obtained a relevant document under the EEA Regulations prior to applying into the EUSS are issued before the deadline 31 December 2020. This is necessary because any refusal decision received after this date will prevent the family member from applying for an EEA Regulations relevant document which is mandatory to then succeeding under the EUSS. In essence, if they receive their refusal late, these applicants will be locked out of being granted EUSS status irrespective of whether or not their family situation meets the conditions of the Withdrawal Agreement. This would be denial of status on a procedural basis not on a substantive basis, and should be avoided at all costs.
In addition to a quick processing of these cases, Seraphus recommended that EUSS applicants who require EEA Regulations relevant documents should be entitled to apply for these up to 30 June 2021 based on a relationship that existed by 31 December 2020. This would be consistent with the intentions of the Withdrawal Agreement to ensure that family relationships in existence by 31 December 2020 are protected. By comparison, this approach is no different from requiring EUSS applicants to be resident in the UK before the end of the transition period and then having an additional six months to make the EUSS applications evidencing their eligibility.
When the Scheme was initially rolled out in 2018, there was no process in place to appeal a refused decision, meaning people whose application was refused had no way of challenging this decision. After complaints and campaigns to promote access to justice and a fair trial, the Home Office introduced the right of appeal for the EUSS in January 2020, but only for applications made on or after 31 January 2020. As a consequence, applicants who applied before 31 January 2020 are still unable to appeal their refusals. There does not seem to be any specific logic in denying an appeal right to applicants based on what is essential an arbitrary date for the purpose of the EUSS. Many of the cases refused before the cut-off date were part of the more complex share of applications, and were pending for a significant period of time (6 to 12 months), prior to refusal. Due to the lack of appeal routes, these individuals are forced to re-apply under the Scheme and again, wait for months before finding out the results.
As for invalid applications, there seems to be a communication breakdown between the Home Office and the applicants. Some EEA nationals come to outreach events and ask questions thinking they have valid applications pending but on examination, do not have any type of application outstanding. Applicants who do not have a certificate of application and are not aware of the necessity of this certificate have misunderstood something vital about the EUSS process which will ultimately lead to their application being invalidated. The reasons for this type of misunderstanding are diverse – for example, where applicants think that by scanning their passport or national identity card to the Home Office, they have made an application for status to remain in the UK. They do not realise that there is an additional online application form which must be submitted in order to complete the application process.
After the EUSS deadline has passed, there will be significant numbers of eligible citizens who believed that they had successfully made in EUSS application but instead have had their applications invalidated without their knowledge or understanding of what this meant. It is unclear whether such an excuse will be accepted by the Home Office as “good reason” for a late application, if the applicant in question realise that their initial application was not completed and then wants to reapply after the deadline.
To sum up, applicants and front-line workers need clarity on what reasons will constitute of good reason to apply to the EUSS after the deadline, as it looks like many individuals with previous refusals or with incomplete applications will end up having to apply after the deadline, and it is unknown whether those applications will be accepted. Refusals under the EUSS – whether on eligibility or suitability grounds – need to be communicated more effectively and more quickly. Additionally, the most complex applications such as family member applications, which cannot be made through the app but have to be submitted in paper-form, need to be prioritised as they are more time sensitive.
We will also need to assess whether the Home Office practice generally is in accordance with the Withdrawal Agreement. EU citizens, and their family members, living in the UK before the 31 December 2020 are beneficiaries of the Withdrawal Agreement and restrictions on those benefits, including the above practices, might be unlawful.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
The Independent Chief Inspector of Borders and Immigration (ICIBI) is currently putting together a review of the EU Settlement Scheme (EUSS) to present to the government. As the official lawyers contracted by the European Union (EU) to provide legal and policy advice to the European Delegation in the United Kingdom on the EUSS, Brexit and EU Citizens' Rights, we made a submission to on the progress of the Scheme.
Applying to the EUSS is mandatory for all EU citizens and other EEA/Swiss nationals who wish to continue living in the UK lawfully after the transition period. EU citizens have until the 30 June 2021 to apply under the Scheme. If they do not apply on time, they will be unlawful residents in the UK. The Scheme’s strong suits and shortcomings have been discussed many a time. Our data and experience, collected since we started working with the EU delegation in 2018, makes it possible to map certain problematic patterns within the scheme and the way it operates. In the first part of this briefing, we discuss the EUSS process up until the stage of applying to the Scheme. The next stage, regarding outcomes of applications, will be the subject of a separate briefing next week.
The first important step to a successful Scheme such as the EUSS is raising awareness. The individuals concerned, in this case EEA nationals in the UK, need to know and understand what they need to do in order to remain in the UK lawfully. The government has made a significant effort to reach out to EU citizens in the UK and ensure that they apply in time. However, there are multiple caveats to the Home Office marketing and outreach campaigns.
Firstly, it is simply impossible to estimate the number of EU/EEA nationals who are eligible to apply to the Scheme, and therefore impossible to track whether they have done so or not. It is clear from the comparison of EUSS applications with the ONS population data that there is a clear underestimate of the numbers of EU citizens who reside in the UK. This raises issues relating to how many more potential EUSS applicants have not applied and how they will be provided with the information and assistance for they need to be successfully granted status under the EUSS. The Home Office appears to understand that much of the remaining EUSS work will relate to complex cases and vulnerable applicants however, it is not clear to what extent the Home Office intends to provide sufficient resources and support to these applicants.
Although there will be additional funding provided to successful organisations for the period between September 2020 and April 2021, this funding will not be sufficient to assist highly complex cases because the reality is that no funding is enough to reach every single eligible person. Additionally, whether or not there will be any funding for assistance from April 2021 onwards in the build-up to the deadline and the period afterwards, is unknown. What we do know is that applicants will face the additional burden of having to demonstrate they had good reasons for failing to apply to the EUSS if they apply after the deadline, and so funding is direly needed.
Secondly, certain groups of applicants have been neglected from the very beginning. One such group with whom the Home Office has failed to engage is prisoners and immigration detainees. Organisations involved with detainees and the EUSS have consistently raised issues with the Home Office relating to the provision of information, advice and the ability of detained EEA citizens to access the EUSS. Feedback from these organisations shows access to information about the EUSS for those in prison and immigration detention is extremely limited.
In many cases, it appears that EEA citizens are issued with deportation decisions prior to the end of their sentence with little access to immigration advice on whether they can challenge their deportation decision, which would in turn make it possible to make a successful EUSS application. The Home Office states that there is engagement through the Ministry of Justice with respect of EEA citizens in the prison estate however, there is very little detail on what this engagement is in practice, and how it is helping prisoners and immigration detainees understand their legal rights. It seems clear that from a political perspective this is a cohort of potential EUSS applicants who the Home Office would rather not provide any assistance to irrespective of whether they have rights under the Withdrawal Agreement or not. This approach is completely unsatisfactory, and additional efforts to highlight the difficulties that this group and their family members are facing need to be made.
Obviously, the EUSS process does not stop once applicants are informed and applications submitted. Unfortunately, there are many flaws in the way the Home Office deals with certain types of applications once they have been submitted. One such issue is the persisting delay in dealing with complicated applications from often vulnerable individuals. To make matters worse, the government website fails to adequately explain how and why such delays may happen.
This is not a new criticism - in response to the previous ICIBI report published in February 2020, the Home Office accepted that the information given relating to processing times needed to be improved. Yet, the information provided on the website is still woefully inadequate, as it merely sets out a list of situations where processing may take more than a month. In addition, if applicants seek to enquire why their case has been delayed, they are not given any useful information by the Settlement Resolution Centre, which is supposed to be their first point of contact if they encounter any issues.
A recent Freedom of Information release gave figures on EUSS applications that were pending for more than three months and those pending for more than six months, revealing that at least 36,000 applications had faced delays of over three months by October 2019. Clearly, the information is available to the Home Office. So why is nothing being done about it? In light of certain cases taking more than six months to be resolved, even up to 12+ months in some cases, the information available to the public remains fundamentally misleading and as a consequence, causes significant anxiety for applicants whose cases face significant delays.
Another reoccurring issue is the Home Office statistical analysis. Firstly, the monthly reports demonstrate that the rate of applications for the EUSS have declined since March 2020. Part of the decline is likely to be attributed to COVID-19. It also seems likely that the high number of applications/grants today means there is a diminishing pool of eligible applicants for the EUSS (though no one can accurately estimate how many citizens are left to apply due to well documented issues with the EUSS/ONS statistics, which is an inherent flaw of the Scheme in itself). As the level of applications has tailed off there is an opportunity for the Home Office to clear the backlog of pending applications and to focus on more complex cases. Yet, the published statistical reports provided by the Home Office show the current backlog of the EUSS is still significant. As of June 2020, it consisted of over 250 000 applications.
For the first time since the introduction of the Scheme, the Home Office intends to produce statistics relating to paper application forms to the EUSS in the next set of quarterly statistics to be released in August 2020. Even if this is finally the case, it seems highly unlikely that the statistics will include any information on the average processing times for the mandatory paper application routes. This is another instance where the Home Office fails the Scheme’s most vulnerable applicants: paper applications are often the most complex, as they include people who do not have ID documents or family members of EEA nationals. In order to increase transparency and help vulnerable individuals, applicants should receive updates at various points in the application process if their application is being delayed. In order to relieve their anxiety, these updates should include meaningful information about why their case is taking a long time to be processed.
Instead of fixing the statistics and giving more information about the progress of the Scheme, EUSS monthly statistics from July 2020 onwards will contain much less information than was previously the case. The reports will no longer contain a breakdown of applications by nationality which has been of vital importance to understanding EUSS application trends.
This will make the work of people in the field – lawyers, statisticians, social workers, government officials, etc. – even more challenging than it has been ever since the Scheme came into existence.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
It is no secret that many couples and immigration practitioners have long been growing frustrated with the requirements to evidence family relationships when applying for a family visa in the UK. Every year, a significant amount of family applications are rejected on the basis of the applicant not providing the adequate documents to evidence relationship requirements.
For Spouse visas, the Home Office guidance states, “an applicant and their partner must provide evidence that they are in a genuine and subsisting relationship.” This is to avoid marriages of convenience or “sham marriages.” But what is a “genuine and subsisting” relationship and worse yet, how does one prove it?
Appendix FM-SE of the immigration rules deals with evidencing all the requirements set out for family visas in the UK. For married couples, it specifies that a marriage certificate is a mandatory requirement to prove the marriage. This is confirmed in the the Home Office guidance on family relationships for partners, divorce and civil partnerships. Unfortunately, neither the Appendix or the guidance specify what evidence is needed to satisfy the “genuine relationship” test.
Since the criterium is vaguely worded, and there is little clear guidance on the subject, it is only logical that applicants often do not realise how much evidence they are expected to present to fulfil the requirement. As a general rule, it is up to the person filling in the application form and, in this case, relying on the existence of a relationship, to prove any assertion made about it. The caseworker who looks at the application will not do their own investigatory work on an applicant’s behalf.
Unsurprisingly, when spouse visa applications get refused, lack of a “genuine and subsisting relationship” is therefore often cited as the reason for refusal. Almost always, the refusal does not mean that the relationship is not genuine, but rather that the applicant failed to give adequate or enough information (in the view of the deciding caseworker) to prove that it was genuine. This is a subjective factor, which depends on the caseworker reading your application. That is why the general advice is to prepare all your immigration applications for the most cynical caseworker on a bad day, to ensure that any caseworker who reads it will view it favorably.
So, what are examples of good evidence? Some of them are obvious – children or stepchildren for which both partners have cared, for example, are an example of strong evidence of a subsisting relationship. If a couple has been living together for a while, the requirement can be relatively easy to fulfil. Joint tenancy agreements, joint bills or mortgage deeds are good examples of proof the Home Office would most likely accept as evidence of the relationship. Any other correspondence, especially from government departments or local government, sent to the applicant at the same address as their partner would also get the applicant brownie points.
Home Office guidance specifies that cultural and external factors must be taken into account when evaluating the genuineness of a relationship. If for cultural or religious reasons, the applicant couple did not live together before they got married, for example, or did not know each other very well, that should not mean that their relationship does not satisfy the requirement.
Thus, if a couple has been living apart for a lengthy period of time, or have never lived together before making the application, the situation might be a bit more complicated, and the evidence needed a bit more creative. Good examples of evidence include joint holiday bookings, visits to each other’s home countries, shared financial responsibilities (e.g. bank accounts, savings, utility bills, membership accounts, …), and plans for the future in the UK (think accommodation, finances, etc.) Witness statements from the couple, their family members or neighbours can also be useful.
As ever, this briefing this is not a substitute for legal advice. Fulfilling the “genuine and subsisting relationship” requirement for the purposes of a UK spouse visa application can be one of the most challenging aspects of the process.
Couples who have received a refusal on such grounds could benefit from legal advice to strengthen their evidence in order to submit a subsequent successful application. If you would like an experienced immigration lawyer to talk about your specific application, you can book our one-off video consultation service here. If you have a question about this service you can contact us here or send us a question on WhatsApp.
When Brandon Lewis MP stated that EU citizens who miss the EU Settlement Scheme deadline could face deportation, it was a wake-up call for all EU citizens in the UK. The 3 Million, the largest campaign organisation for EU citizens in the UK, and one of many organisations advocating for a declaratory instead of a constitutive scheme, called upon the government to ensure that law-abiding EU citizens living in the UK do not fall subject to the hostile environment as unlawful migrants merely due to a formality such as a missed deadline.
At the time, the Home Office sussed the situation by reiterating that they “are looking for reasons to grant status, not refuse, and EU citizens have until at least December 2020 to apply.” A spokesperson said: “We’ve always been clear that where they have reasonable grounds for missing the deadline, they’ll be given a further opportunity to apply.” Mr. Lewis personally clarified that EU citizens will have enough time to apply, and highlighted that the Home Office will accept late applications.
“It is not true that as a general rule, eligible persons who remain in the UK without registration are here ‘unlawfully’. For most purposes, there ought not to be legal consequences,” said Professor Bernard Ryan of the University of Leicester. Guy Verhofstadt, the EU Brexit spokesman, also reported being told by the Government that there would be no automatic deportation for EU citizens who fail to apply to the Scheme.
Now, the Secretary of State for the Home Department Priti Patel confirmed in writing what grassroot organisations always feared, and Mr. Lewis hinted at in October: that those who fail to apply to the EU Settlement Scheme by the deadline of 30 June 2021 will be unlawfully resident in the UK. If information regarding EU citizens’ rights after Brexit was previously conflicting, the Home Secretary now clarified once and for all that late applicants will be subject to the hostile environment rules during their period of unlawful residence.
Ms. Patel made the remarks in response to a letter from the Home Affairs Committee outlining various concerns regarding EU citizens’ rights in the UK after Brexit. The Home Secretary wrote that “those who have not applied to the EUSS by the deadline will not have lawful status in the UK. This means, for example, they will not be able to evidence a right to work or rent if they seek new employment or a new private rental property during the period in which they have no lawful status.”
In the same breath, Ms. Patel stated that late applications to the EUSS “for good reason” will be accepted as valid. Some examples of good reasons given are children whose parent or guardian do not apply on their behalf, those in abusive or controlling relationships who are prevented from applying or accessing the documents they need to do so, and those who lack the physical or mental capacity to apply. If these examples are an indication of what may constitute “good reason,” the bar seems to be set high and at the Home Office’s discretion.
In other words, people who fail to apply to the EUSS by the deadline will lose the right to rent and work, as well as lose access to most social services and benefits including free NHS treatment. They will be subject to the hostile environment rules until they acquire status under the Scheme, assuming they do successfully apply late, which in itself is a strong assumption to make considering late applicants must meet the “good reason” policy. Even if they do get status, late applicants will face consequences of their interim unlawful residence until years after the facts, not in the least because they will not be able to naturalise as British citizens for a further 10 years.
Last week, the Home Affairs Committee hosted a livestream with Ms. Patel to discuss the Home Office response to the COVID-19 outbreak. The online discussion was meant to offer reassurance at a time of crisis. Concerning EU citizens’ rights, Ms. Patel confirmed that there will not be an extension to the deadline to apply for the EU Settlement Scheme. Except of that reiteration, she did not address many of the concerns which EU citizens in the UK have brought to her attention since the COVID-19 outbreak. Most importantly, she failed to address the effect of breaks in continuous residence due to the coronavirus outbreak, except to say that the government will be “flexible.”
A pattern emerges here, whereby there is a lot of talk about Home Office flexibility and cooperation at the government’s discretion, but very little clarity about what that translates to in practice. The Home Secretary’s letter reiterates the government’s known position on a number of issues without offering clear answers to the questions asked. It provides vague statements instead of hard facts and lacks a legal framework to resolve the pitfalls the Committee flagged up.
These ambiguities and failures on behalf of the Home Office will impact the most vulnerable and marginalised citizens most devastatingly, as they are least likely to apply to the EUSS at all, let alone before the deadline. As per the 3 million, even if the EU Settlement scheme performs as well as the UK's most successful campaign ever - to switch everyone to Digital TV (97% of people signed up by the time analogue TV was disactivated) - over 100,000 EU citizens would still lose their legal status and face the full consequences of the government's hostile environment. Following the Home Secretary’s comments, those 100,000 people will be at the discretionary mercy of the Home Office.
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.
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.
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.
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.
As the UK prepares to end free movement, EU citizens already living in the UK have to apply to the EU Settlement Scheme (EUSS) if they want to maintain their residency rights. Whoever fails to apply by the deadline (currently set at 30 June 2021), loses their legal status in the UK, and becomes an unlawful or irregular migrant. The government has therefore invested significant efforts into creating a Scheme that is inclusive and easy to use for all applicants.
However, as we have argued before, no system is perfect, and there are significant challenges for certain groups of people who need to apply under the EUSS. The Migrant Observatory published a report confirming many lawyers and advocates worries for EU citizens’ rights. We take a look at their findings.
A key question to understand the Settlement Scheme is how many eligible people have already applied, and how many are left to apply. But the exact number of people currently living in the UK and eligible to apply to the EUSS is unknown, and estimates of the number of EU citizens living in the UK have significant limitations. Unlike in other European countries, there is no registration system or population register in the UK, and as such, the government does not know which UK residents are EU citizens. EU citizens will thus need to come forward of their own accord under the EUSS, as there is no way to track them. Additionally, the number of successful applications under the Scheme does not reflect the number of current UK residents, as some people may get their status and then leave the UK, and some applications are counted twice. It does not help that the Office of National Statistics measures the number of EU citizens living in the UK differently from how the Home Office assesses the applications and grants under the EUSS.
Equally hard to interpret is the data on whether applicants are being granted the right status, i.e. are receiving settled status when they have been living in the UK for more than 5 years, and pre-settled status if they have been in the UK for less than 5 years. If this is not the case, and people who in theory are entitled to settled status receive pre-settled status because they do not have enough evidence of living in the UK for the whole required five-year period, their future rights might be in danger. If we don’t know whether people are receiving the right status now, we will not be able to determine whether people with pre-settled status later manage to upgrade their status to settled status. The process of upgrading from pre-settled status to settled status could bring many complications.
Firstly, individuals do not always understand their immigration status. As such, applicants who receive pre-settled status may not understand that that status is temporary, and that they need to apply separately to obtain settled status further down the line. Secondly, unlike the initial EUSS application, there will not be a single deadline for people to upgrade to settled status. Instead, there will be many different deadlines depending on when the person made their initial application. This complicates the public communication around the need to apply. Thirdly, and maybe most importantly, the evidence required for settled status is more extensive than for pre-settled status. As such, the report highlights that applicants who are not covered by the automated checks and lack the necessary paperwork to prove their residence can currently receive pre-settled status with just one piece of evidence, such as a single invoice issued in the past six months; however, once the main EUSS deadlines have passed, applicants will need a full five years of evidence retrospectively to qualify for settled status.
The report also highlights the lack of data on applicants’ experience of the scheme. To encourage EU citizens to apply, the government has developed an application process that is designed to be easy to use, launched an advertising campaign and grants to community organisations to support vulnerable EU citizens. However, this is not enough, as we still do not have detailed information on waiting times, reasons for pending applications, administrative review procedures, or reasons for not granting status.
In order to understand the EUSS statistics better, as well as understand its shortcomings, and improve it in the future, The Migration Observatory states that data collection needs to change. The focus should shift from successful applications to the people who have not yet applied, and on how to reach them so that they can acquire the right status. Finally, in light of the COVID-19 pandemic, future challenges to the EUSS are unavoidable, as the outbreak disrupts EUSS assistance services, hinders data collection, and causes increased absences from the UK which may well impede EU citizens from reaching the EUSS residence requirements. There are many gaps in the evidence base about the EU Settlement Scheme, and unfortunately, the consequences of those failings will not become clear until many months or years from now. This is the unfortunate consequence of choosing a constitutive system over a declaratory one.
The EU Settlement Scheme statistics for Feb 2020 is out:
It includes 300 refusals. We’re told by the Home Office that the increase is mainly due to refusals for eligibility, not in criminality.
The two core reasons, the HO say, for the jump in refusals include:
1. Failing to provide eligibility evidence, either at the application stage or in reply to requests from the Settlement Resolution Centre
2. The non-EEA/Swiss family member failing to evidence their relationship to the EEA/Swiss national. This is could include failing to provide a marriage certificate through to not possessing the relevant document as a dependent relative.
In either scenario the HO say that they:
- have made every attempt to obtain the necessary evidence before refusing the application,
- decisions to refuse were not taken lightly, and
- ensured decisions were made at the appropriate decision making level
The number of refusals remain a significantly low number in comparison to the number of applications. And that many refusals were because of a drop in communications between both parties.
But it does raise the question if everyone who was contacted chose not to reply to request for further information or found it too complex to do so, and without access to the necessary support, they simply gave up. The HO were not able to give us this kind of granular data.
The HO assures applicants that they will pursue any necessary missing information or documentation. Or, if refused, encourages reapplications before the deadline.
A recent inspection report by the Independent Chief Inspector of Borders and Immigration advises that there should be ‘clearer messaging' about the consequences of not responding within the time-frame indicated’. We hope that this message will become clearer in time.
These statistics will cause concern and there remain a lot of questions, but we should not panic. Yet.
The HO should contact all applicants for further information to resolve issues before it reaches the decision stage. We hope they take into account the Covid-19 advice gap.
Once the UK leaves the EU on 31 January, the Withdrawal Agreement, negotiated by Boris Johnson based on Theresa May’s earlier version, will come into force. The Agreement specifically states that the transition period, which is 11 months long and during which a permanent deal is supposed to be negotiated, can only be extended once, putting an end to the cycle of delays and fresh extensions which have dominated the Brexit process since the referendum in 2016. It also states that once the UK leaves, Article 50 can no longer be revoked, meaning that the only way to become a part of the EU will be to re-apply and start the process from scratch. This is set to happen on the 31 January, only two weeks from now – Brexit is real, unavoidable and rapidly approaching.
As that knowledge seeps through to the broader public, the European Parliament passed a resolution last week expressing the Members of the European Parliament’s (MEP) collective wariness for the future of EU citizens in Britain, as well as British citizens in EU member states.
The European Parliament has all EU citizens’ best interests at heart, as the resolution says, both “before and after the UK leaves the EU.” The complications begin when looking at who that phrase affects in the first place: EU citizens living in the EU27 and EU citizens living in the UK are the obvious ones, but what about the 1.2 million Brits living in other EU countries? What about the people of Northern Ireland, who are all entitled to Irish and by extent, EU citizenship, under the Good Friday agreement? This is where the water gets muddled. The British government has also not clarified whether the EU Settlement Scheme (EUSS), their all-hailed solution for EU citizens in the UK to retain their rights, applies to citizens of Northern Ireland who have not sought UK citizenship under the terms of the Good Friday Agreement.
The resolution expressed apprehension regarding the high proportion of applicants who have only been accorded pre-settled status under the Scheme; these people are at risk of losing their status before they qualify for settled status, or may not re-apply to get that settled status when the time comes. The resolution therefore urges the UK to reconsider their approach and opt for a declaratory scheme instead, an approach which our Managing Director previously endorsed.
It then goes on to state its “grave concern” at conflicting announcement made in relation to EU citizens in the UK who fail to meet the deadline for EUSS applications, and the treatment of late applications under the Scheme. Last year, UK Home Office minister Brandon Lewis suggested that people who had not applied to formalise their status by the cut-off date of 30 June 2021 could “theoretically” be deported.
Other concerns highlighted include the lack of physical documentation proving EU citizens right under the EUSS, and the potential discrimination that can flow from it. It recommends providing EU citizens with some type of physical evidence of their legal right to be in the UK by the end of the transition period to avoid this. Unfortunately, as our Managing Director explains in The Independent, this discrimination is already occurring. The resolution also mentions the UK’s plans for an Independent Monitoring Authority (IMA) which under the withdrawal deal is meant to monitor arrangements, questioning how fully independent of a watchdog this authority will really be. These concerns resonate with immigration lawyers and other professionals in the sector; no real details of how the IMA will operate have been released, and until the Ministry of Justice provides more details as to the construction and powers of the IMA, it is something that will need to be closely scrutinised as the situation develops and more details are released.
The EU’s approach to the post-Brexit transition seems to be one of cooperation and collaboration, but it is not without its limits. The Parliament therefore stated that the level of free movement granted to EU citizens after Brexit will be a factor in deciding the “degree of future cooperation in other areas.” As Ursula von Leyen, president of the European Commission, said in her speech at the London School of Economics (LSE) last week, the last few years have been difficult and divisive. What people need, and what they want, is certainty about their lives and their future, and certainty about the future of their loved ones. It is of paramount importance that in the next round of transitional negotiations, the British government lives up to those expectations.