Caroline Asken

The EU Settlement Scheme – Late applications and Administrative Review

28th September 2023 By Caroline Asken

There have been recently announced changes to the Immigration Rules relating to the EU Settlement Scheme and specifically in relation to late applications and the right to administrative review.

Late Applications for EEA nationals in the UK

EEA nationals in the UK prior to 31 December 2020 had to apply to the EU Settlement Scheme to continue their legal residence. The deadline for most people to make an application to the EU Settlement Scheme was 30 June 2021. If an application was made after this date, it was considered to be a late application.

Generally, the Home Office took a very lenient approach when assessing the reasons for a late application and granted the vast majority of applications. At this time, the provided reasons for delay for the application were evaluated under the eligibility requirement which meant that an applicant would have a right of appeal or could apply for an administrative review if the application was refused.

The Home Office EU Settlement Scheme caseworker guidance has been updated and makes the Home Office’s approach to late applications far more restrictive. Since 9 August 2023, the requirement for applications to be made by the required date, unless there were reasonable grounds for delay, is now a so called validity requirement. If the Home Office do not consider that the applicant has provided reasonable grounds for their delayed application, their application will be considered not to be valid and the application will be rejected rather than refused meaning there is no way of challenging the decision. Furthermore, the applicant will not receive a Certificate of Application which is the document which allows them to show they are legally in the United Kingdom and entitled to work.

Applicants must therefore ensure that they are preparing well-reasoned and verifiably evidenced applications in line with this new guidance to ensure that they make an application that is deemed valid.

For applications made on or after 9 August 2023, guidance suggests that:

if no information is given as to why there has been a delay, or the information that is given does not constitute reasonable grounds in line with the guidance, it can be immediately rejected.
if information is given which does seem to constitute reasonable grounds, but no or insufficient evidence is provided, a caseworker should write to the applicant and give them 14 days to provide that evidence.
if a caseworker has doubts about the authenticity of evidence, they can reject the application immediately.

The applicant must prove using objectively verifiable evidence that there are reasonable grounds for their application being submitted late. The updated guidance gives some examples of reasonable grounds, but they are extremely limited and it is clear that the Home Office will be taking a restrictive approach as to what it deems reasonable.

Challenging a decision

The Home Office has also announced changes to the Immigration Rules which will remove the right of administrative review for refused EU Settlement Scheme applications where decisions were made on or after 5 October 2023. This means that even if an applicant made an application before 5 October 2023, if the caseworker decides to refuse an application on or after 5 October 2023, the applicant will not have the right of administrative review. However, there will still be a right of appeal and it is important if an application is refused that an applicant who wants to challenge the decision moves swiftly to lodge an appeal before the deadline.

How can we help?

Individuals can still make applications to the EU Settlement Scheme. If you would like to discuss whether you are eligible to apply or if you need assistance with making an application to the EU Settlement Scheme, please do not hesitate to contact us at enquiries@gryklaw.com or on 020 7401 6887.

Recent High Court Decision in R(Roehrig) v SSHD [2023] EWHC 31 (Admin) January 2023

7th March 2023 By Caroline Asken

What is the case about?

Prior to the implementation of the British Nationality Act 1981, children born in the United Kingdom were automatically born British. Since the British Nationality Act’s implementation on 1 January 1983, a person born in the United Kingdom is British if they are born to a parent who is British or a parent who is settled in the United Kingdom. A ‘settled’ person has no conditions on the length of their stay in the United Kingdom. EEA parents exercising rights of free movement, for example working here, were considered to be settled and therefore the children born to them were considered British and subsequently could be issued with British passports.

On 2 October 2000, the Home Office issued guidance stating European parents were not settled and that they had to apply for indefinite leave to remain to be deemed settled. The Roehrig judgment confirmed that the restrictive approach applied by the Home Office since 2000 was the correct interpretation of the British Nationality Act. This confirmed that EEA parents exercising rights of free movement were not settled and that the children born to these European nationals were not born British. Therefore, the automatic entitlement to British citizenship which had been assumed, was not correct. The judgment raises implications for those granted British passports in error.

What may the Home Office do to address this issue?

The Home Office could change the British Nationality Act 1981, implementing a legislative fix. This could be a retroactive statutory recognition of British citizenship to those affected. Who is a British citizen is a matter of fact so only a legislative change would be able to easily rectify the mistake which affects those who were incorrectly issued with a passport. However, the Home Office may decide to extend the reasons why someone can register a British citizen as an adult so that the people affected can make an application to become British. This is quite likely to be an application that could be made free of charge.

What are the implications of the judgment?

This judgment could affect thousands of individuals.

The children born before 2 October 2000 to EEA national parents are unlikely now have the immigration status they require. As this cohort believed they were British, they would not have had to apply for immigration status in the United Kingdom, nor of course register or naturalise as a British citizen. Additionally, it has been a requirement for EEA nationals wanting to stay in the United Kingdom beyond 31 December 2020, to apply to the EU Settlement Scheme. Those that believed they were British would not have done this.

EEA nationals who cannot hold dual nationality, may have taken steps to renounce their first nationality as they believed they were British and without their British nationality would be rendered stateless. There is now also potentially a second generation of people who thought that they were British by virtue of their parents being British who in fact are also not British citizens.

What does this mean for you if you are a person affected?

It is difficult to quantify how many people will be affected by this judgment. People may only become aware of this matter affecting them when they try to renew their British passport and they are denied a passport.

If you were born between 1 January 1983 and 2 October 2000 to an EEA parent who was exercising rights of free movement but did not hold indefinite leave to remain and if you have been treated as a British citizen, we would urge you to follow the developments resulting from this case, in particular any possible announcement from the Home Office clarifying what they intend to do.

We will be keeping updated on this area and the developments with our experts in EU law and nationality matters. We would be happy to advise you at any point if this case affects you. Please contact us on 0207 401 6887 or via email on contact@gryklaw.com.

Joint Parliamentary briefing on Afghanistan August 2022

19th August 2022 By Caroline Asken

The Immigration Law Practitioner’s Association (ILPA), along with multiple other organisations including Human Rights Watch, Scottish Refugee Council have issued a parliamentary briefing on Afghanistan, one year on from the Taliban taking control of the country following the withdrawal of US and allied forces.

The briefing addresses human rights abuses committed by the Taliban and outlines the problems associated with the Afghan Relocations an Assistance Policy (ARAP) and the so-called Afghanistan Citizens Resettlement Scheme (ACRS) and makes recommendations for the government.

UK Relocation and Resettlement Schemes

The UK Government evacuated around 18,000 people, including more that 6,000 British nationals, to the UK during Operation Pitting following the Taliban’s takeover.

The UK Government set up two schemes for the relocation and resettlement of Afghan nationals and certain family members.

The ARAP scheme launched on 1 April 2021 to relocate former military interpreters and other staff. The briefing comments that the scheme remains not properly functioning, being marred by ongoing substantive and procedural problems. As of 27 July 2022, around 10,100 eligible individuals and their families have been relocated to the UK under ARAP. It states that thousands of Afghans remain at real risk because of their work with the UK mission in Afghanistan and they have yet to be relocated to the UK. The briefing refers to reports of a backlog of 23,000 applications since October 2021, with only one in four applications having been processed and many applicants not having received a decision a year on. The briefing comments that many Afghans still remain excluded from the ARAP scheme due to the heightening of risk thresholds to levels unduly restrictive, in December 2021.

The ACRS was announced in August 2021 and formally opened in January 2022 and committed to resettle more than 5,000 people in the first year and up to 20,000 over the coming years. Afghans already in the country following Operation Pitting were moved into ACRS and counted towards its places. The briefing comments that this decision reduces the number of places available in the scheme and emphasised that the UK commitment to 20,000 is significantly less than other countries, such as Canada, that has doubled its commitment to resettling 40,000. It confirms there have been no further updates on how many individuals have been resettled or relocated under the three pathways outlined in the scheme.

Recommendations

The recommendations in the briefing include:

expediting all ARAP applications, providing applicants with clear timelines and urgently relocating eligible Afghans; and
expanding the ARAP scheme to ensure that all Afghans who worked alongside, in partnership with or closely supporting the UK Government, who currently fall outside the narrow categories of the scheme, are eligible for relocation, emphasising that it should not be unduly restrictive; and
increasing the number of ACRS places beyond 20,000 by at least the amount of those who arrived in the UK under Operation Pitting and were counted under pathway one of the ACRS scheme (approximately 6,500, including British nationals and their family members); and
ensure the schemes are adequately resourced and managed to allow decisions to be made in a timely manner; and
ensure the same approach for all refugees, regardless of origin, and establish an Afghan family reunion scheme, on parallel terms to the Ukraine Family Scheme.

The full briefing can be found here: Parliamentary Briefing on Afghanistan