Since the Government launched the EU Settlement Scheme (EUSS) on 30th March 2019, the Government has been dealing and, for the most part, resolving issues pertaining to the online applications, such as technical glitches and the lack of support for those who are less able to use the online application system for whatever reason. It has issued guidance to employers and has also provided a large amount of funding to charities and outreach services so that the EUSS may be accessible to the largest number of EU citizens in the UK on an equal basis without the need to seek specialist legal advice.

The Home Office Guidance states that all EU citizens have until 30 June 2021 to apply for Settled Status. Nevertheless, there are concerns amongst EU citizens that the Government support available to them during this transitional period will be reduced amid the Coronavirus crisis, as state resources are now geared towards combating the crisis. The shortages and lack of support are highly likely to prejudice some of those who still need to make an application under the EUSS but will especially have an impact on certain groups, including but not limited to; the elderly, children of EU citizens, and individuals who are victims of domestic abuse.

The deadline for making applications under the EUSS is fast approaching and, besides the shortages, there has been no indication from the Government that the deadline will be extended further due to the current crisis. There is further a lack of certainty as to when the Coronavirus crisis will come to an end. For this reason, fears currently persist amongst EU citizens in the UK that the shortages of support and outreach services will impose a risk that a proportion of EU citizens in the UK may become illegal, if they fail to make an application under the EUSS before 30 June 2021. Therefore, it is vital for EU citizens to act promptly and to start submitting their applications if they have not already done so. However, without the necessary support, this might be a more challenging task than it seems to be for the following reasons:

Recent Increase of Pre-settled Status Grants:

The latest statistics for EUSS applications in January 2020 provide that the number of applications received in January 2020 was 351,800. A total of 56% of applications concluded were granted Settled Status, whilst 43% were granted Pre-Settled Status.  The ratio of the grants of Pre-Settled Status and Settled Status in January 2020 was similar to the ratio in December 2019. However, compared against the statistics published by the Home Office for EUSS decisions made in October and November 2019, there has been a recent rise in the number of grants of Pre-Settled Status.

The reason for this recent shift is unclear as there is no guidance from the Home Office indicating whether the rise in the numbers of EU citizens granted Pre-Settled Status relate to EU citizens with less than five-years of residence in the UK or a case of the UK government changing its policy. Pre-Settled Status is less certain than Settled Status, as the rights of beholders of Pre-Settled Status remain unclear if the UK leaves the European Union with no deal. In addition, Pre-Settled Status does not count as “a right to reside” for the purposes of applying to obtain welfare benefits. This puts those EU citizens who may suffer from ill health, unemployment or domestic abuse at a disadvantage. There is also no guarantee that beholders of Pre-Settled Status will be granted Settled Status in the UK after they complete their 5-year residence period. Furthermore, if beholders of Pre-Settled Status leave the UK for a period exceeding two years for any reason, they will be at risk of losing their status in the UK.

Potential Difficulties in Providing the Required Documents:

The Home Office commonly raises further enquiries to applicants requesting further information and/or documents, after receiving each application and before refusing one. However, without support, some applicants may find it challenging to answer to the Home Office’s enquires or provide the Home Office with supplementary documents, which can lead to a grant of Pre-Settled Status instead of Settled Status, or a refusal.

Some groups of EU citizens might also find it challenging to provide identity documents or historic documents, such as bank statements or payslips. Examples of these groups are individuals who suffer from domestic abuse and children in care.

This concern was raised by the relevant organisations in the Parliament Committee Publication on the “Issues with the EU Settlement Scheme”, which indicated that vulnerable people appear to be especially at risk of being left out. It confirmed that children in care are one such group, as they may not have passports or other identifying documents. It further indicated that other required documents such as bills, payslips, school letters are not easy to access and the children may need to seek parental consent to obtain such documentation, which would place them at risk, where there is or has been domestic abuse.

Similarly, many victims of domestic abuse and violence may not have access to their records and documents, if these are controlled by another person such as an abusive partner, former partner or a parent. This situation puts these individuals at a significant risk as they would be left with no option but to approach their abusive partner, ex-partner or parent, where they cannot prove that they meet the EUSS criteria on their own.

Difficulties to Meet the Suitability Requirements Criteria

Applications under EUSS can also be more complicated if the applicant has any criminal convictions or links to criminality. The Home Office Guidance on the EUSS suggests that all applicants must provide information about their previous criminal convictions in the UK or overseas, however there is no requirement to declare spent offences, cautions or alternatives to prosecutions, such as fines. It further indicates that the applications will be checked against the Police National Computer (PNC), where the applicant is aged 10 or over and the Warning Index (WI). The Home Office specify in their Guidance certain criteria for cases involving links to criminality, which need to be referred by Home Office caseworkers for consideration or even, in some cases, enforcement action. Therefore, those applicants with unspent criminal convictions must check the suitability criteria as set out in the EUSS guidance and seek legal advice in relation to their applications in order to avoid a refusal on suitability grounds.

Potential Difficulties to Challenge Home Office’s Refusals

A recent change to appeal rights to challenge refusals for EUSS applications has been introduced by the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (SI 2020 No.16), which came into force on the exit day of 30 January 2020. This provides applicants who have applied for Pre-Settled Sor Settled Status under the EUSS the right of appeal against refusal decisions. However, this right of appeal does not extend to refusal decisions made under the EUSS after the 2020 Regulations came into effect. The appeal process, if legal representation is required, can be costly and time consuming for those applicants who wish to challenge a Home Office refusal.

The appeals procedure for EUSS-related appeals is the same as the procedure normally followed to challenge a Home Office refusal on an immigration application. Appeals are lodged to the First-Tier Immigration and Asylum Tribunal (IAC) within 14 days of the notice of refusal being sent (if the appeal is being lodged within the UK), and within 28 days of the notice of refusal being received (if the appeal is being lodged outside the UK). Where a refusal has been certified by the Home Office on grounds of protecting the interests of national security, the appeal would be lodged to the Special Immigration Appeals Commission (SIAC).

There remains the right to an Administrative Review in order to challenge a Home Office refusal for applications made prior to the introduction of the 2020 Regulations. This process is done by way of completing and submitting an online application form to the Home Office. The application form for an Administrative Review requires applicants to provide details as to their grounds of challenge and to submit documentary evidence in support of their grounds. Therefore, some applicants may need support and legal advice in order to complete and submit an Administrative Review to the Home Office.

GOOD ADVICE UK has been assisting clients with applications under the Home Office’s EU Settlement Scheme since the scheme was introduced. Our friendly team has a wealth of experience in dealing with all aspects of applications made under the EU Settlement Scheme. If you have any questions or queries relating to these matters, please do not hesitate to contact us.

The information in this article is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current it remains the thoughts of the author. The Home Office guidance constantly change and applicants should obtain specific legal advice under specific instructions to safeguard their positions. GOOD ADVICE UK accepts no responsibility for loss which may arise from accessing or reliance on information contained on this page.

Veronia Fawzy, LLM