EU

High Court Rules That Potential Loss of Rights For Those With Pre-Settled Status Under EUSS Is Unlawful

26th January 2023 By Beatrice Windsor

On 20 December 2022, in the case Independent Monitoring Authority v Secretary of State for the Home Department, the High Court found that the government’s use of the European Union Settlement Scheme (EUSS) was unlawful.

The background

Following Brexit, the Withdrawal Agreement was agreed by both the UK and the EU, which addresses various terms of the UK’s exit from the European Union. New laws were contained in the Withdrawal Agreement such as Part 2 of the Agreement which was drawn up to protect the rights of millions of EEA citizens (people from EU countries and Iceland, Liechtenstein and Norway) living in the UK. The laws at Part 2 give these EEA nationals the right to continue to live, rent, work, study, and access state services in the UK, as they had been able to pre-Brexit.

Before Brexit, it was not necessary for EEA nationals to apply for any sort of immigration status in the UK to be able to access these rights. But Brexit threw up the question of how these EEA nationals’ immigration status would be defined once the UK left the EU. The UK Home Office created the EU Settlement Scheme (EUSS) to address this question and to put into action the UK’s obligation to protect the rights set out at Part 2 of the Withdrawal Agreement.

The EUSS allowed EEA nationals who had lived in the UK for five years before 31 December 2020 to obtain settled status. Settled status means that you can stay in the UK indefinitely, and is a secure and permanent immigration status. Those who had been here for less than five years on 31 December 2020 could get pre-settled status. Those with pre-settled status were granted temporary status or leave to remain, and this expires after five years.

Before the end of their five-year period of leave, those with pre-settled status would then have to submit another application for settled status. However, it was unclear what would happen to those who did not apply for settled status or who did not apply in time. It would appear that they would become overstayers and lose the rights they previously held. It was reported by the 3million that thousands of people with pre-settled status could lose their rights to live, work, study, and access state support in the UK, if they let their status expire. There was also the risk of detention or deportation.

The case

The Independent Monitoring Authority (IMA) is a body that was set up as part of the Withdrawal Agreement to protect the rights of the EU citizens who fall into its scope. The IMA issued the judicial review claim in the High Court to question whether this loss of rights for those with pre-settled status is what had actually been agreed by the UK and the EU in the Withdrawal Agreement.

The UK argued that the EU had agreed to this. However, the IMA successfully argued that it was unlawful for the UK to use the EUSS to create a situation where those with pre-settled status who did not apply for settled status would lose the rights conferred on them by the Withdrawal Agreement.

Mr Justice Lane determined several key points:

While the UK can put in place a system whereby people must apply for status by a certain deadline, the rights associated with this status once granted can only be lost in the circumstances that are set out in the Withdrawal Agreement – and expiry of status is not one of them.
Recipients of one type of status ie ‘pre-settled or ‘settled’ cannot be forced by the UK to pursue another. If this were a requirement, then it would be set out in the Withdrawal Agreement.
Therefore, those with pre-settled status should not lose their rights if they do not make a second application when their leave expires.
The right of permanent residence accrues automatically once the conditions for obtaining the right have been fulfilled, and it is unlawful for the UK Home Office to withdraw these rights based on the basis that to a person has not applied for settled status.

What now?

The UK Home Office has been granted permission to appeal this judgment. Until the judgment from this appeal is handed down and confirmed, those with pre-settled status should continue to apply for settled status before their leave expires.

If you require advice in relation to the above, we have particular expertise with EUSS applications, and would be happy to help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

Late applications to the EU Settlement Scheme

30th September 2021 By wesleygryk

If you’re from the EU, Switzerland, Norway, Iceland or Liechtenstein, you and your family might have needed to apply to the EU Settlement Scheme to continue living in the UK. This includes people who hold a permanent residence document or an EEA biometric residence card.

The deadline for applying to the EU Settlement Scheme, for most people, was 30 June 2021. If you have missed this deadline, you can still make an application.

You must either:

meet one of the criteria for a later deadline to apply
have ‘reasonable grounds’ for not applying by 30 June 2021

The scheme provides the following not complete list of possible reasonable grounds for not applying by the deadline:

you’re a child, or applying for your child, and you did not know you needed to apply
your parent, guardian or local authority did not apply for you when you were a child
you have, or had, a medical condition which prevented you from applying
you lacked the physical or mental capacity to apply
you have care or support needs, or those caring for you were unaware of the deadline
you’ve been the victim of modern slavery
you’ve been in an abusive or controlling relationship
you did not have internet access, or access to relevant documents
you came to the UK on a work or study visa and became eligible to apply to the EU Settlement Scheme while you were here, but did not know you could apply
you already have indefinite leave to enter or remain, and you did not know you could apply to the scheme
you had permanent residence status or a residence document that stopped being valid after 30 June 2021, and you did not know you needed to apply to the scheme
you had difficulty accessing support to apply because of coronavirus (COVID-19) restrictions
another compelling practical or compassionate reason prevented you applying

The caseworker guidance suggests that the Home Office will be taking a fairly flexible approach to late applications, at least initially, stating:

For the time being, you will give applicants the benefit of any doubt in considering whether, in light of information provided with the application, there are reasonable grounds for their failure to meet the deadline applicable to them under the EU Settlement Scheme, unless this would not be reasonable in light of the particular circumstances of the case.

The best advice is to apply as quickly as possible, with evidence as to why the application is late. The evidence could, for example, include proof of a medical reason why the application has been delayed.

For more information on deadlines please see:

the government website: https://www.gov.uk/settled-status-eu-citizens-families/eligibility
the guidance: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1004627/main-euss-guidance-v13.0ext.pdf

If you require immigration advice in relation to the issues above, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com

Digitalisation of the Immigration System

1st June 2021 By Katie Dilger

On 24 May 2021, the Home Secretary announced further plans for the digitalisation of the immigration system. This intention is that by 2025 the system will be fully digital from beginning to end. The Home Office’s vision is that not only will we continue to use online forms and upload supporting evidence, but all biometrics will be given via apps and individuals will prove their status at the border and to third parties by using a digital record rather than a physical document. As previously announced, the Home Office will also introduce an Electronic Travel Authorisation scheme akin to the United States’ ESTA programme. More detailed information is available in the policy paper published that day, New Plan for Immigration for legal migration and border control.

To date, the use of digital status has not been without controversy. Digital status is being given to EEA nationals who have been granted leave under the EU Settlement Scheme (the EUSS). Under the EUSS, EEA nationals are given a digital record rather than issued with a biometric residence card or any physical evidence of their settled or pre-settled status. Indeed, the grant letter issued to EEA nationals even expressly states that it is not proof of the person’s status. Instead, the Home Office runs a “view and prove” system which requires EEA nationals with status under the EUSS to trigger a share code when they need to prove their status, e.g. to an employer.

The 3Million, an organisation which seeks to protect the rights and interests of EU citizens living in the UK after Brexit, sought to challenge this. It argued that the digital-only policy meant that EEA nationals with status under the EUSS had to be able to access and use the internet effectively if they were to prove their status to third parties. This was likely to disadvantage some groups, including older people, people with certain disabilities and the Roma community.

On 3 May 2021 the challenge was brought to an end by the Administrative Court when it refused permission to bring a judicial review. However, this is unlikely to be the end of the matter. Permission was refused primarily because the claim was regarded as ‘premature’. This is because until the end of June 2021, EEA nationals can still rely on their EEA documents to enter the UK and prove their status. It is only from 1 July 2021 that people will need to rely on the digital system alone.

Biometric Residence Cards and Third Country Nationals

12th March 2021 By Ciera McCartney

When applying to the European Settlement Scheme from within the UK, most third country nationals (i.e., non-Europeans) will already hold a Biometric Residence Card issued to them because of their right to reside in the United Kingdom under European law. This document proving their status, the Biometric Residence Card, will have been issued under the EEA Regulations.

Third country nationals who have not previously held a Biometric Residence Card issued under the EEA Regulations will be invited to attend an appointment to provide their biometric data with the Home Office provider Sopra Steria. If the application for pre-settled or settled status is granted, the individual will be issued with a Biometric Residence Card under the European Settlement Scheme.

However, those third country nationals who apply to the European Settlement Scheme and already hold a valid Biometric Residence Card issued under the EEA Regulations are currently not issued with an updated Biometric Residence Card.

For example, a third country national who submits an application with two weeks left until their card issued under the EEA Regulations expires will not receive a new Biometric Residence Card under the European Settlement Scheme. The Home Office has confirmed this is because their card is still valid at the time the application was made. They have also confirmed this is the case even if the EEA card has expired by the date of the decision. An individual in this scenario will therefore also not be issued with a new card automatically under the European Settlement Scheme.

While third country nationals have their status recorded digitally on the European Settlement Scheme online portal accessible through Gov.UK, if they do wish to obtain another Biometric Residence Card to reflect their new immigration status, they must make a further application and re-submit their biometric data. Third country nationals are likely to need to do this in practice, given that their status is not linked to their passport, as is the case for European nationals.

Yet unfortunately the decision letter currently sent to applicants who have successfully obtained status is silent on this point and gives no guidance or a link to the appropriate page on the Home Office website where one can apply to update their Biometric Residence Card under the EU Settlement Scheme.

This lack of clarity raises practical issues. While we understand the Home Office plans to move the immigration status of all migrants to a digital only status, this has not yet happened, meaning third country nationals still need to evidence their status to carriers and border staff through a Biometric Residence Card when returning to the United Kingdom from abroad. Unaware that this is the case, we have heard reports of confusion by airline staff and border personnel, difficulty at the border and in several cases people left stranded outside the UK.

Third country nationals granted status under the European Settlement Scheme therefore do require a valid biometric card reflecting their current immigration status. Yet, if they fall into one of the scenarios outlined above, the process to update to a new card is unclear, costly (there is a Home Office fee of £75.20) and lengthy (the Home Office state these applications can take up to six months to be decided).

Instead, we believe all third country nationals should be given Biometric Residence Cards automatically up until the point that the Home Office can rely on digital immigration statuses for all migrants. These cards should be issued at the time the applicant is granted their new status, solving the practical difficulties faced by those third country nationals already holding at the date of application a valid Biometric Residence Card issued under the EEA Regulations.

If you require immigration advice in relation to the issues above, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com

European Update: The Good and the Bad

28th May 2020 By Alison Hunter

On 14 May, the government issued a new Statement of Changes to the Immigration Rules. And once again it included changes to the European Settlement Scheme. Some were small in nature and a tidying up exercise to deal with small omissions or inconsistencies. However, there were two important substantive changes.

The good news is that protection has been extended to those in durable relationships to ensure that if their relationship with a European national breaks down due to domestic violence, they should be able to remain in the United Kingdom in their own right. This comes into force from 4 June 2020.

From 24 August 2020, the rule changes will also allow for dual British and Irish nationals born in Northern Ireland to rely on their Irish nationality to bring dependants to reside with them in the United Kingdom. This allows for a less onerous set of rules to be applied to them, ensuring there is no need for them to fulfil stringent financial requirements, which apply to British people sponsoring their family members.

This was however swiftly followed on 15 May 2020 with some far less welcome news: the new naturalisation guidance clarifies that European citizens who did not hold comprehensive sickness insurance while they were students or self sufficient, or were not exercising a Treaty right during the qualifying period for naturalisation, can be considered to have been in breach of immigration law. This means that if a European national is applying to naturalise having obtained settled status they will still need to show that they fulfilled these requirements during the five year period (or three year period, if married to a British Citizen) before making the application. Unlike under the European Settlement Scheme, where residence in the United Kingdom on its own is sufficient to ensure a grant of status, a successful naturalisation application may need to go beyond mere residence for the qualifying period, if an applicant did not hold pre settled or settled status for part of the period. Home Office caseworkers now have to check whether applicants can be considered to be in breach of immigration law and can request further information to reassure themselves that such time spent in the United Kingdom was ‘on a balance of probabilities’ in accordance with the law. I should add that the guidance also states that it will be possible for caseworkers to waive the requirement on a discretionary basis but without giving any further guidance as to when that would be deemed appropriate.

Given the £1330 fee attached to a naturalisation application, applicants should ensure that they really do qualify before making this payment to the Home Office as only £80 (the cost of the citizenship ceremony) would be reimbursed if the application were refused.

If you require immigration advice in relation to the issues above, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com