Citizens’ Rights Watchdog Gives Update on Judicial Review

The High Court found in December 2022 that parts of the EU Settlement Scheme (EUSS) were unlawful following legal action by the IMA.

The EUSS was developed by the Home Office before the UK exited the European Union. EU and EEA EFTA citizens resident in the UK by 31 December 2020, and their family members, are required to apply to this scheme to remain living in the UK.

Under the EUSS, citizens who have been living in the UK for less than five years usually receive what is called pre-settled status. Those who have lived here for at least five years usually receive settled status.[1]

If someone has pre-settled status, they were originally required to apply for settled status within five years of being granted pre-settled status. A failure to do so would result in them losing their rights, including the right to live and work in the UK. The High Court decided this loss of rights was not permitted by the Withdrawal Agreement and the EEA EFTA Separation Agreement (the Citizens’ Rights Agreements).

The Home Office has informed us that its plans to implement the High Court judgment consist of:

An extension of their pre-settled status of two years for those who have yet to convert to settled status. The extension will take effect a short time before the current expiry date of their pre-settled status.
Using government data to automatically upgrade pre-settled to settled status where the required five years of residence has been met.
Some changes to ensure those with pre-settled status who automatically achieve permanent residence rights under the Citizens’ Rights Agreements are able to rely on those enhanced rights.

Alongside the process of automatically upgrading pre-settled status to settled status and the two-year extension of pre-settled status, the Home Office also plans to take steps to remove pre-settled status from those who have ceased to meet the relevant conditions contained in the Citizens’ Rights Agreements. This will be subject to a right of appeal.

While details of the plans continue to be developed by the Home Office, the IMA has concerns with some elements of them.

The IMA believes that an extension of pre-settled status does not go far enough to implement the judgment and that therefore this element continues to be incompatible with the Agreements. The extension does not change the fact that pre-settled status is time limited.

The IMA is concerned that maintaining that expiry period for pre-settled status may have practical effects on citizens exercising their rights, for example those who are seeking employment or accommodation. A prospective employer or landlord may, albeit wrongly, discriminate against a citizen who holds pre-settled status that is due to expire soon.

While plans for automatic upgrade from pre-settled status to settled status continue to be developed by the Home Office, the IMA does not have sufficient detail to make a full assessment of them. However, the IMA will want to be assured that any relevant processes, in particular where citizens may lose their residence status, are undertaken fairly and in line with the requirements of the Agreements.

These elements of the plans are not directly for the purpose of implementing the judgment and the IMA understands that they are not to be implemented until later in 2024. The IMA will provide further updates as the Home Office plans develop.

The IMA remains concerned about the implementation of the second part of the High Court’s judgment. This found that permanent residence rights under the Agreements accrue automatically to a pre-settled status holder where the relevant conditions in the Agreements are met.

Plans to automatically upgrade pre-settled status holders to settled status will hopefully ensure the permanent residence rights of more citizens will be reflected by their EUSS status. However, there will remain a lack of clarity for citizens and public authorities regarding the rights of some citizens who hold pre-settled status but who are in fact in possession of permanent residence rights.

The IMA believes that it is unreasonable to expect citizens to be fully aware of their enhanced permanent residence rights where they continue to hold pre-settled status and to know that these rights override any domestic laws, policies or decisions which fail to recognise them.

The Home Office is continuing to encourage people to obtain secure evidence of their permanent residence rights in the UK by applying to switch from pre-settled to settled status as soon as they are eligible to do so. The IMA also encourages people who are eligible for settled status to make an application to switch from pre-settled status to settled status.

The IMA is also asking the UK Government to make a public statement confirming the permanent residence rights of those with pre-settled status who have met the relevant conditions. This will help ensure that those citizens are able to rely on their permanent residence rights if they have not obtained settled status under the EUSS.

Chief Executive of the IMA Miranda Biddle said:

“We are keen that we continue to work with the Home Office to make sure that we can resolve any potential issues which could arise as the result of its proposed implementation of the High Court judgment.

“We recognise that in the majority of cases the Home Office has worked effectively and at pace to ensure EU and EEA EFTA citizens are able to exercise their rights as outlined in the Citizens’ Rights Agreements. We do, however, remain concerned that some citizens with pre-settled status face continued uncertainty and potential impact on their ability to live, work and raise their families in the UK as provided for in the Agreements.”

The IMA will continue to provide further updates on its engagement on this issue when information is received and assessed.

Anyone experiencing difficulties accessing their rights is encouraged to contact the IMA.

More information about the rights of EU and EEA EFTA citizens who have applied to the EU Settlement Scheme can be found on the IMA’s website.

The rights we refer to include the right to work, access healthcare and education and apply for housing and benefits.

You can also read more about the work of the IMA and download and share resources such as leaflets about citizens’ rights.

[1] In some limited circumstances, it is possible to qualify for settled status after less than five years’ residence.

Court of Appeal Hands Down Judgment

The Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) which was set up to ensure that public bodies uphold the rights of EU and EEA EFTA citizens, and certain members of their families, within the UK and Gibraltar had intervened within the proceedings.

The case, which concerned the application of the Charter of Fundamental Rights of the European Union (“the Charter”) under the framework of the Withdrawal Agreement following the UK leaving the EU, was previously heard in the Upper Tribunal. The IMA also intervened within the Upper Tribunal, and further details of that intervention are available on the IMA’s website.

In the Upper Tribunal proceedings, amongst other points, AT argued that in refusing her Universal Credit, the Secretary of State for Work & Pensions (“SSWP”) had breached her Charter rights, those rights flowing through following the end of the transition period under the Withdrawal Agreement. The Upper Tribunal held that the Charter was indeed applicable under the Withdrawal Agreement in certain circumstances. The SSWP was given permission to appeal to the Court of Appeal, with the IMA subsequently being granted permission to intervene within this important appeal.

As with the proceedings below, the IMA considered it appropriate to intervene in this appeal to promote the adequate and effective implementation or application of the citizens’ rights contained within Part 2 of the Withdrawal Agreement.

This is a key case of significant public importance, and concerns the interpretation of the Withdrawal Agreement. The fundamental question in the appeal concerns the continued role of the Charter following the end of the transition period, which in turn raises the question as to how the Court of Justice’s decision in CG (Case C-709/20) applies under the Withdrawal Agreement. Due to the IMA’s statutory role, it considered that it could add real value by intervening within the proceedings.

The Court of Appeal hearing was listed on 8-10 March 2023. The IMA’s skeleton argument can be read here.

The IMA encourages any citizen experiencing difficulties in exercising their rights to make them aware of this through their online portal. Further information about the IMA and guidance on how to report complaints can also be found on the IMA’s website.

The IMA is keen to hear about any litigation relating to Part 2 of the Withdrawal Agreement or EEA EFTA Separation Agreement, and would encourage those litigating in this area to forward details to litigation@ima-citizensrights.org.uk.

IMA is assured that local authorities in Wales are protecting the rights of EU looked after children and care leavers

Following the UK’s departure from the EU, all eligible citizens, including children, are required to apply to the EU Settlement Scheme (EUSS) to guarantee their rights to live, work, study, and access benefits in the UK.

In October 2022, the IMA launched a review of local authorities across the UK to establish how they identify looked after children and care leavers who need to apply to the EUSS, and the procedures put in place to monitor those applications.

The initial review sought information in three key areas; identification, record keeping and retrospective checks, with each local authority categorised as red, amber or green in a grading system.

An interim report for all local authorities in Wales found only one local authority’s response achieved a green grading for each of the three key areas, with six other local authorities meeting the green status in two of the three key areas.

Following the report, the IMA worked collaboratively with each local authority during a compliance period before a final review was made.

As a result of further engagement, the IMA identified that the majority of local authorities in Wales had outlined robust processes in place to identify and support eligible cohorts in line with Home Office guidance.

In addition, the IMA made recommendations for improvements and offered further support to aid understanding of the EUSS. This has helped improve the identification and support for eligible cohorts.

Several authorities have reported taking proactive measures to improve their processes and procedures and management information and reporting systems, and others have developed additional guidance for staff delivered through awareness and training. Notably, this has led to better identification by local authorities of eligible children and care leavers for the scheme, as well as being able to signpost eligible family members.

As a result of the measures taken by local authorities in Wales, the IMA is assured that all 22 local authorities are protecting the rights of EU looked after children and care leavers.

Pam Everett, IMA Director of Operational Delivery said: “The IMA has welcomed the positive collaboration with local authorities in Wales, along with the support of Albert Heaney, Chief Social Care Officer for Wales, The Welsh Government in encouraging local authority engagement.

“Most importantly however, this work has resulted in additional numbers of children being identified as eligible for the EU Settlement Scheme, and upon successful application will guarantee their rights to continue to live, study and work in the UK.”

The review of all local authorities in Wales has now concluded with ongoing reviews across England, Scotland, and Northern Ireland.

Citizens’ Rights Watchdog Urges EU Settlement Scheme Late Applicants to Check Their Application Evidence

The advice comes as the Home Office has made changes to the way it considers late applications to the EUSS. In particular, a late applicant is now required to show that there are reasonable grounds for their delay in making their application. Otherwise, the application will be rejected as invalid and they will not receive a Certificate of Application confirming the temporary protection of their rights.

The Home Office has also published updated, non-exhaustive guidance for EUSS caseworkers on what may constitute reasonable grounds for applying late. Citizens now need to provide objectively verifiable evidence, such as a letter from a doctor, to show there are reasonable grounds for their delay in applying. Being unaware of the requirement to apply to the EUSS will generally no longer be considered reasonable grounds for delay unless there are very compelling practical or compassionate reasons.

Citizens who consider they have reasonable grounds for making a late application should apply to the EUSS as soon as possible.

If further support is required, there is a network of organisations which can assist with the process of applying to the EUSS.

Anyone who has experienced difficulty demonstrating reasonable grounds for making a late application to the EUSS can report it to the IMA via our complaints’ portal.

IMA acquires new Practice Direction

The IMA protects the rights of EU and EEA EFTA citizens and their family members in the UK and Gibraltar through monitoring and promoting the implementation and application of the citizens’ rights contained within Part 2 of the Withdrawal and Separation Agreements.

Once implemented, the new Practice Direction will mean that when a party serves a statement of case which raises a citizens’ rights issue, that party must send a copy of the statement of case to the IMA at the same time.

This will enable the IMA to take decisions on where it may assist the courts or tribunals in interpreting the Agreements; it will also highlight areas where citizens are potentially facing problems in enjoying their rights.

Although there is no sanction proposed for non-compliance, in the event of such instances, the court will consider whether orders should be made or steps taken as a result.

To notify the IMA about such cases, parties can email litigation@ima-citizensrights.org.uk, or write to the IMA, 3rd Floor, Civic Offices, Oystermouth Road, Swansea, SA1 3SN.

Four non-executive members reappointed to IMA board

The Lord Chancellor has reappointed the following non-executive members of the IMA:

Ronnie Alexander – member with knowledge about conditions in Wales relating to citizens’ rights – from 17 March 2024 until 16 December 2027
Joyce Cullen – member with knowledge about conditions in Scotland relating to citizens’ rights – from 10 February 2024 until 9 December 2027
Marcus Killick OBE – member with knowledge about conditions in Gibraltar relating to citizens’ rights – from 8 December 2023 until 7 December 2026
Leo O’Reilly CB – member with knowledge about conditions in Northern Ireland relating to citizens’ rights – from 8 December 2023 until 7 December 2026

Biographies

Ronnie Alexander

Ronnie left the civil service in 2013 to pursue a variety of other interests; including consultancy. He is currently an Independent Member of Powys Teaching Health Board. In addition, he serves as Independent Chair of the Standards Committees for the South Wales Fire and Rescue Service and also for Blaenau Gwent County Borough Council. He has a considerable record of engaging with the public, professionals and politicians at all levels, to influence policy. This follows a civil service career spanning over 20 years and an equivalent period working in local government. Ronnie Alexander has not declared any political activity.

Joyce Cullen

Joyce has practised as a litigation solicitor with Brodies LLP for over 40 years and served as Chair of the firm from 2004 to 2013. In 1995, she was admitted as a Solicitor Advocate in Scotland. She was Convener of the Law Society of Scotland’s Employment Law Reform Sub-Committee from 2006 to 2018. From 2015 to 2021 she was a Non-executive Director of the Joint Management Board of the Office of the Secretary of State for Scotland and the Office of the Advocate General for Scotland. In 2020, she was appointed as Chair of the Board of Governors of George Heriot’s School. She was initially appointed and has served as a Non-Executive member of the IMA since 2021. Joyce Cullen has not declared any political activity.

Marcus Killick

Marcus is also Chairman of the IMA’s Delivery and Impact Committee and a Member of its Audit Committee. Marcus is qualified as: a Barrister at Law (England and Wales); an Attorney at Law (New York) and; a Chartered Fellow of the Chartered Institute of Securities and Investment,

He is currently Chief Executive Officer (CEO) of the law firm ISOLAS LLP. From 2003 – 2014, he served as the CEO of the Gibraltar Financial Services Commission (“Commission”).

During his time at the Commission, he was also Chair of the Group of International Insurance Centre Supervisors as well as Chair of both the Gibraltar Investors Compensation Scheme Board and the Gibraltar Deposit Guarantee Board. In 2014, he was awarded an OBE for services to regulation; particularly in Gibraltar. Marcus Killick has not declared any political activity.

Leo O’Reilly

Leo is also Deputy Chair of the IMA. He is a Member of the Senate of Queen’s University Belfast and a member of the Council of the Institute of Professional and Legal Studies in Belfast. He is also a Non-Executive member of the Audit and Risk Committee Member of the Office of the Police Ombudsman for Northern Ireland. He is a former civil servant, in the Northern Ireland Civil Service, with over 27 years’ experience as a senior civil servant covering a diverse range of functions and activities across government in both NI and GB. These include over 11 years as the Permanent Secretary of three Northern Ireland departments. Leo O’Reilly has not declared any political activity.

The appointment of non-executive members of the IMA are made by the Lord Chancellor and are regulated by the Commissioner for Public Appointments. These reappointments comply with the Governance Code on Public Appointments.

More information about the IMA’s board members and executive team can be found on the website.

IMA Chair Steps Down

Sir Ashley was appointed as the inaugural Chair of the IMA by the Secretary of State for Justice in December 2020.

The IMA’s Deputy Chair Leo O’Reilly will provide leadership of the IMA board in the immediate period.

The IMA, Ministry of Justice and the public appointments team are now working at pace to confirm arrangements for this interim period and to commence a recruitment process for the permanent position of Chair.

Sir Ashley Fox said:

“I have been honoured to be the inaugural Chair of the IMA. During the last three years I have been privileged to work alongside colleagues across the organisation to help to establish the IMA and ensure the important work of ensuring the rights of EU and EEA EFTA citizens living in the UK and Gibraltar since the UK left the EU are upheld by public bodies.

“I am proud of what has been achieved so far and know that thanks to the dedication of all who work at the IMA that this will continue.”

Chief Executive of the IMA, Miranda Biddle said:

“On behalf of the IMA I would like to thank Sir Ashley for his contribution during the last three years as we have successfully established the IMA.

“His personal commitment that we should promote and protect the rights of those EU and EEA EFTA citizens who have rights under the Withdrawal and Separation Agreements to continue to live, work and raise families as they did before the UK left the EU is evident in all we do.”

IMA welcomes Cabinet Office updates to recruitment website to account for rights of late EU Settlement Scheme applicants

Previously, it was unclear whether EU and EEA EFTA citizens and their family members who applied to the EU Settlement Scheme (EUSS) after its 30 June 2021 deadline were eligible to apply for roles.

Civil Service Jobs is the central recruitment website that government departments and other public bodies use to advertise vacancies. The IMA has been engaging with the Cabinet Office, which has responsibility for the site, to ensure the nationality requirements for posts advertised via the website were updated on 23 August.

Following an announcement by the Home Office in August 2021, those persons with reasonable grounds for missing the original EUSS deadline who have made a late application (and their joining family members) should have their rights protected while their applications to the scheme are being considered.

Pam Everett, Director of Operations for the IMA said:

“EU and EEA EFTA citizens and their family members with relevant rights should be able to continue their lives in the UK as they would have done before the UK left the EU. This also applies when it comes to employment.

“We are pleased that the Cabinet Office has taken action to clarify this and we will continue to work with them to ensure these citizens receive the same treatment with regards to having their rights protected.”

The Cabinet Office has confirmed the following wording will be reflected in relevant posts via the Civil Service jobs website, meaning they will be broadly open to:

UK nationals
nationals of the Republic of Ireland
nationals of Commonwealth countries who have the right to work in the UK
nationals of the EU, Switzerland, Norway, Iceland or Liechtenstein and family members of those nationalities with settled or pre-settled status under the European Union Settlement Scheme (EUSS)
nationals of the EU, Switzerland, Norway, Iceland or Liechtenstein and family members of those nationalities who have made a valid application for settled or pre-settled status in accordance with the requirements of the European Union Settlement Scheme (EUSS),
nationals with limited leave to remain or indefinite leave to remain who were eligible to apply for EUSS on or before the 31 December 2020
Turkish nationals, and certain family members of Turkish nationals, who have accrued the right to work in the Civil Service

IMA issues statement following Home Office response to inquiry findings

This certificate is used to evidence a person’s rights, for example to work, rent or access benefits, while their application is being considered. Any delay in issuing a CoA could, therefore, have serious consequences for citizens who are unable to exercise rights under the Withdrawal and Separation Agreements (the Agreements) while their application is being considered.

We welcome the Home Office’s commitment to better monitor processing times and acknowledge their acceptance of the first recommendation in our inquiry report.

The IMA remains of the view that providing a timescale for how quickly they intend to issue CoAs would be helpful as it would provide clarity for applicants.

However, the IMA notes that since the conclusion of its inquiry significant changes have been made to the EUSS validation requirements which could have operational impact. Nevertheless, we believe the issuing of a CoA immediately and specifically within five working days of receipt of an application, or any required further information, would be helpful.

The IMA will now continue to work with the Home Office on this matter and undertake monitoring to assess the operational impact of the changes made by the Home Office.

We will also seek to assure ourselves that the problems identified in our inquiry report relating to caseworker availability and training have been sufficiently addressed.

As always, our objective is to provide clarity and reassurance to citizens with rights under the Agreements who, for whatever reason, are yet to apply to the EUSS.

IMA launches new inquiry to investigate EU Settlement Scheme application delays

The IMA has received information and complaints from people experiencing long wait times for a decision on their application. These include people waiting beyond estimated application processing times advised by the Home Office.

As part of the inquiry, the IMA will investigate the impact these delays are having on citizens who have applied to the scheme. The IMA is calling on EU and EEA EFTA citizens and their family members who reside in the UK to share their experiences via an online survey to inform the inquiry. *This survey has now closed. Thank you to all respondents*

The IMA is keen to hear real life examples from citizens about their experiences in applying to the EUSS and information about delays they may have faced in receiving a decision on their application.

Pam Everett, IMA Director of Operational Delivery said:

“The EU Settlement Scheme has received and concluded more than 7 million applications since its creation. We recognise that many of these were processed without issues, but we are aware that other citizens have experienced delays in receiving a decision.

“We aim to understand how these delays are having an impact on citizens’ lives. It is therefore really important that we hear from as many people as possible to fully understand any issues and consider what next steps to take.”

The IMA’s call for evidence will provide an understanding of the impact of delays, as well as generating narratives that will stem from citizens’ ‘lived experiences.’ Citizens can share their experiences via an online survey which will close on the 16 October 2023.

Information about organisations which provide advice and support for EU and EEA EFTA citizens and their family members can be found on the IMA website.

The inquiry’s terms of reference can be found here.