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IMA focus on citizens’ rights in Northern Ireland

IMA focus on citizens’ rights in Northern Ireland 

This winter, a team from the IMA travelled to Belfast to find out more about the experience EU, EEA, EFTA citizens and their families face in Northern Ireland (NI).  

With the post Brexit landscape in NI being unique, it was an opportunity to hear directly from organisations we work with about the experience of citizens living there.  

At the time of our visit, a vote had just been triggered for the NI Assembly around post-Brexit trading agreements, a reminder of how the Windsor Framework applies in NI to cater for the unique circumstances there. Alongside this, we were keenly aware that EU Settlement Scheme (EUSS) applications from NI had received the highest rate of refusals across the UK – 21% compared to 9% in Scotland, 12% in Wales and 14% in England.   

Over the course of a week, the IMA met with thirteen different organisations concerned with the rights of EU and EEA EFTA citizens in NI. These were some of our main areas of focus:  

Barriers to EUSS applications 

Understanding some of the reasons for EUSS refusals from NI being so high was a priority – the answer points to a patchwork of possible reasons.  

Difficulty providing evidence around continuity of residence due to a lack of documentation was a factor we heard of several times, an issue that significantly affected the Roma community in NI.  

A number of organisations spoke of a lack of frontline support for EUSS applications as well as a lack of advice for when applications go wrong. Resources were said to be overstretched with there being limited accredited immigration legal support. This results in citizens left navigating the system alone. An additional likely outcome of this is that vulnerable people in NI are disproportionately affected.  

However, it is also possible that the high number of EUSS rejections could in part be due to unnecessary applications. An estimated 30,000 workers travel from South to North for work, but we were told many have tried to apply for EUSS when it was a frontier permit that they needed. 

Border complications  

We were told a number of citizens were extremely anxious about crossing the border between the Republic and Northern Ireland. This follows reports of impromptu checks in the common travel area in an aim to crack down on people smugglers using the area as a back door to Great Britain.  We were told that eligible EU citizens had been caught up in the checks unable to show their status.  In worse-case scenarios this has resulted in citizens being sent to deportation centres where they struggle to prove their rights yet have no access to advice.  

There was an additional lack of awareness around how long citizens could leave the UK without losing their right to return. We heard that citizens are unknowingly crossing the border into the Republic of Ireland for prolonged periods, unaware that this could have negative consequences on their EUSS status.  

Access to Healthcare 

A number of the organisations we met raised problems around healthcare – access to NHS treatment is an area the IMA has monitored closely  across the UK.  

We were aware that NI differs from other parts of the UK with GPs determining eligibility at registration. However, during our time in NI, we were told about a lack of understanding in the healthcare sector around EUSS status and people being wrongly charged for, or refused, the healthcare they are entitled to. An issue only further compounded by a lack of awareness from individual citizens about their right to access healthcare.  

Thank you

A big thank you to all the organisations who took the time to meet with us. It can be hard to find out what’s really happening on the ground and your input has been invaluable, helping us to focus our efforts where they are most needed.   

If you have further information you would like to share with us, please visit our contact page. 

Alternatively, if you are a citizen who would like to report and issue affecting you rights, then please visit our complaints portal.

IMA welcomes changes to Home Office guidance on pending prosecutions

In the case of Krzysztofik v SSHD (in which the IMA intervened), the Upper Tribunal found the Home Office policy of pausing decision-making on applications to the EUSS where there was a pending prosecution for alleged conduct committed before the end of the transition period on 31 December 2020, and without taking the relevant public policy threshold into consideration, was unlawful.

The Upper Tribunal agreed with the IMA’s submissions on proportionality and held that the policy was inconsistent with the requirements of the Citizens’ Rights Agreements as it led to unwarranted and disproportionate delays to the processing of those EUSS applications.​

The Home Office has subsequently updated its guidance on EUSS suitability requirements.

The updated guidance makes it clear to caseworkers a pending prosecution does not prevent them progressing the consideration of the application.

It states: “If the applicant satisfies the eligibility criteria and suitability criteria (setting aside allegations which are the subject of the pending prosecution) leave may be granted.

“If the applicant does not satisfy the eligibility criteria and suitability criteria (setting aside the allegations which are the subject of the pending prosecution) leave should be refused.

“If the applicant is subsequently convicted and given a custodial sentence, the case will be referred to Foreign National Offender Returns Command (FNO RC) through the usual prison referral mechanism. Should FNO RC pursue deportation, a deportation order will invalidate any EUSS leave held under section 5(1) of the Immigration Act 1971.”

We continue to engage with the Home Office in respect of any delays experienced by citizens in receiving a decision on their EUSS application.​

 

IMA Chair Recruitment Update

The Ministry of Justice has confirmed that Nicole Lappin has been chosen as the preferred candidate for the role of Chair of the Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA). This follows an open recruitment competition and assessment process led by a panel, conducted in accordance with the Governance Code on Public Appointments.

Nicole will now attend a pre-appointment hearing before the Justice Select Committee on December 10th.

An experienced Chair and collaborative leader who has demonstrated how effective governance improves the delivery of public services, including her present role as the Northern Ireland Housing Executive Chair, Nicole has over 10 years’ combined experience in leading three public sector Boards.

She qualified as a Barrister in Dublin and chairs a fitness to practise committee for the Pharmaceutical Society in NI. Additionally, she developed further expertise in regulation as the Chief Charity Commissioner for NI and her experience also spans health, justice, education, and finance. She has led on changing Board governance structures and transformation of service delivery has been central to the organisations she has served.

Chief Executive of the IMA, Miranda Biddle said: “We welcome the forthcoming Justice Select Committee pre-appointment hearing and are pleased that Nicole as an experienced and qualified candidate is being put forward for the role of Chair of the IMA. This is an important role which helps to ensure the IMA is fulfilling its duties to monitor and promote how the rights of EU and EEA EFTA citizens are upheld by public bodies so they can continue to live, work and raise families, here and in Gibraltar, as they did before the UK left the EU.”

While the recruitment process has been underway the Deputy Chair of the IMA, Leo O’Reilly was appointed as Interim Chair. Leo has been a Board Member and Deputy Chair of the IMA since its inception in December 2020. 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.

Miranda added, “I would also like to take this opportunity to thank Leo for being the IMA’s Interim Chair since September 2023 and pay tribute to his commitment, support and guidance of the IMA. Under his leadership the IMA has continued to work effectively and has begun the delivery of our second strategy. We look forward to continuing to work with Leo as he continues in his role as Deputy Chair of the IMA.”

Leo said, “I have thoroughly enjoyed taking on the role of Interim Chair to help continue the good work of the IMA while the recruitment process for a permanent Chair was underway.”

Following the pre-appointment hearing on December 10th, the Justice Select Committee will publish their recommendations. The Lord Chancellor will consider their recommendation before deciding on the final appointment which is then submitted to The King in Council for approval.

 

New practice note for Scotland on claims relating to citizens’ rights under the Withdrawal Agreement for the IMA

The IMA has been established to protect 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 in force, the new practice note will mean that when a party initiates or defends proceedings which raise an issue relating to citizens’ rights under the Withdrawal Agreements, the party should notify the IMA.

This will assist the IMA in its duty to monitor the implementation and application of citizens’ rights in Scotland and enable the IMA to take decisions on where it may assist the courts in interpreting the Agreements; it will also highlight areas where citizens in Scotland are potentially facing problems in enjoying their rights.

This new practice note compliments the Practice Direction that the IMA obtained for courts in England and Wales. We are also pursuing a similar direction in Northern Ireland.

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

IMA calls for clarification from the Home Office  

EU and EEA EFTA citizens and their family members who submitted a valid application to the EU Settlement Scheme (EUSS) but are awaiting the outcome of their application should receive a Certificate of Application (CoA) immediately.

While it does not confirm that the person has immigration status in the UK under the EUSS, it can be used to evidence the temporary protection of their rights, for example the right to work, rent or access benefits, while the decision on their application, or any administrative review or appeal, remains pending.

Home Office guidance on CoAs can be found here.

Following the reports of issues at the border for some citizens, the IMA has written to the Home Office to seek clarification of its position on the rights of citizens in receipt of a CoA when travelling, including where an administrative review is pending.

The IMA has also issued guidance to pre-settled and settled status holders around absences from the UK and how it may affect your EUSS status.

The IMA encourages any EU or EEA EFTA citizen or their family members who believe their rights are not being upheld to submit a complaint to its online portal.

For more information visit the IMA’s website for detailed information on the rights of EU and EEA EFTA citizens and their family members who have applied to the EUSS.

 

How absence from the UK may affect your EUSS status

Understanding how absences from the UK can impact EUSS status can be confusing.

We have been told that extensions of pre-settled status and changes to the rules around automatic lapsing of status following time spent outside the UK have potentially added to this confusion.

The rules which govern how long a person with EUSS status can spend outside the UK are different depending on whether you have pre-settled status or settled status.

The Home Office has published guidance on its approach to absences and how it may impact a citizen’s EUSS status.

Settled status

If you have settled status, you can live outside the UK for up to 5 consecutive years without your absence affecting your EUSS status and your ability to return to live and work in the UK.

Pre-settled status

To retain your eligibility for pre-settled status and, after 5 years, be able to qualify for settled status, you will need to show that you have maintained your continuous residence in the UK.

The rules on continuity of residence provide that you can be absent from the UK for up to 6 months in any 12-month period without affecting your continuous residence in the UK or your ability to qualify for settled status.

There are also some circumstances in which an absence from the UK of more than 6 months in a 12-month period will be permitted, such as:

  • one period of up to 12 months for an important reason – for example, childbirth, serious illness, study, vocational training, an overseas work posting or because of coronavirus (COVID-19)
  • compulsory military service of any length
  • time you spent abroad as a Crown servant, or as the partner or child of a Crown servant
  • time you spent abroad in the Armed Forces, or as the partner or child of someone in the Armed Forces
  • time you spent working in the UK marine area

Separate guidance is available if you were outside the UK for more than 12 months because of COVID-19.

EU and EEA EFTA citizens (and their family members) with pre-settled status who have lived in the UK for at least 5 years and have acquired the right of permanent residence automatically under the Agreements, can also live outside the UK for up to 5 consecutive years without it affecting their EUSS status and their ability to return to live and work in the UK. It is important to note that the right of permanent residence must have been acquired before you left the UK.

Whether, as a pre-settled status holder, you have acquired the right of permanent residence automatically under the Agreements depends on certain conditions being met. For example, if you have worked in the UK as an EU or EEA EFTA citizen for 5 years since before 31 December 2020, then you will have acquired the right of permanent residence. However, in this example, you would need to evidence those 5 years of work in the UK in order to benefit from the right to live outside the UK for up to 5 years. The easiest way to evidence your right to live permanently in the UK (and to live outside the UK for up to 5 years) is to obtain settled status under the EUSS.

If you hold pre-settled status, but do not know whether you have acquired the right of permanent residence automatically under the Agreements and wish to leave the UK for more than 6 months (and without obtaining settled status under the EUSS), then you should seek independent immigration advice on your circumstances from an immigration adviser registered with the Office of the Immigration Services Commissioner (OISC).

In April 2024, the IMA reported on the Immigration (Leave to Enter and Remain) (Amendment) Order 2024. The effect of the Order is that pre-settled status will automatically lapse after more than 5 consecutive years of absence from the UK. Prior to the change, pre-settled status would automatically lapse after more than 2 consecutive years of absence from the UK.

It is important to note that this change is separate to the rules on continuity of residence, which remain as set out above, and does not extend the absence from the UK permitted for a pre-settled status holder to retain their eligibility for pre-settled status and, after 5years, be able to qualify for settled status. If in doubt, you should seek independent immigration advice on your circumstances from an immigration adviser registered with the OISC.

It is also important to note that an extension of pre-settled status does not alter the rules on continuity of residence as set out above. If continuous residence in the UK has been broken, then you may no longer meet the eligibility criteria for your status,  even if you have been granted an extension by the Home Office.

The IMA encourages any EU or EEA EFTA citizen or their family members who believe their rights are not being upheld to submit a complaint to its online portal.

For more information visit the IMA’s website for detailed information on the rights of EU and EEA EFTA citizens and their family members who have applied to the EUSS.

Further information can also be found the FAQs section of our website.

 

 

IMA works to ensure landmark decision is correctly implemented by DWP

The IMA, which was set up to monitor and promote the rights of EU and EEA EFTA citizens and their family members, intervened in the case against the Secretary of State for Work and Pensions’ (SSWP).

In the case, DWP had said that an EU citizen (AT) was refused Universal Credit as she had pre-settled status but did not have a qualifying right to reside. By not being able to claim the benefit, AT was at risk of destitution as she had fled her home with her child after being the victim of domestic violence.

The courts consistently found that the protection of the Charter of Fundamental Rights of the European Union (the Charter) to be able to live in dignified conditions applies under the Withdrawal Agreement in certain circumstances. In this case, AT was able to rely on her Charter right to live in dignified conditions and therefore was able to access Universal Credit.

Claims for Universal Credit for those in similar circumstances to AT had their applications put on hold whilst litigation was ongoing. Following the conclusion of this case, the IMA is pleased to confirm these applications are now being processed.

The IMA is now monitoring how DWP is implementing the judgment and the progress on its plans to clear the backlog of Universal Credit applications that were previously put on hold. It is also looking into the wider implementation of the Charter to eligible cohorts.

The IMA continues to seek clarity on the way that claims are being assessed to assure itself that the judgment is being properly applied. The DWP has released guidance to caseworkers on Charter rights assessment following SSWP v AT.  This guidance is being used to aid caseworkers in their decision making in cases similar to AT. The caseworker guidance is being used in the historic cases that are now being processed and for all future claims. The IMA has provided feedback to DWP on the revised caseworker guidance.

A further public statement with updates will be published in due course.

The IMA also continues to review the broader impact of the judgment across Government. The IMA is engaging with the Ministry of Housing, Communities and Local Government to assess the impact of the judgment to homelessness assistance.

The IMA welcomes the collaborative approach to resolve matters in these areas as we recognise this impacts some of the most vulnerable citizens in our society.

The IMA encourages any citizens who have been impacted by the judgment and have experienced issues with either Universal Credit, Pension Credit, Housing Benefit or homelessness assistance to contact us through our online portal.

IMA urges parents and carers to check their children’s EUSS application status

Concerns have been raised with the IMA regarding parents and carers paying thousands of pounds for NHS treatment for their children after missing the deadline for submitting an EUSS application on their behalf.  

Parents and carers must apply to the EUSS within 90 days of their child being born or adopted in the UK; or if the child is living abroad and coming to join them in the UK.  

Although the deadline for applications for most people was 30 June 2021, parents and carers can still apply for their child – or they can apply for themselves – if they lived in the UK by 31 December 2020. 

EU and EEA EFTA citizens who have applied to the EUSS, have a number of rights in the UK or Gibraltar. Their family members also share these rights. 

Applying for EUSS protects rights to:  

  • Work in the UK 
  • Use the NHS for free 
  • Enroll in education or study in the UK 
  • Access public funds such as benefits and pensions (if eligible) 
  • Travel in and out of the UK  

Further information on how to check whether your child is eligible to apply and the documents you will need for the application can be found on the GOV.UK website. 

Applying to the EUSS is free. You can apply here.  

IMA is assured that Health and Social Care Trusts in Northern Ireland are protecting the rights of 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) and obtain a grant of Pre-Settled or Settled Status to guarantee their rights to live, work, study, and access benefits in the UK. 

The IMA launched a review of Health and Social Care Trusts in Northern Ireland 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.       

As part of our monitoring duties, we are undertaking assurance reviews across all local authorities in England, Northern Ireland, Scotland and Wales. You can read our Assurance Review Reports here. 

The initial review in Northern Ireland looked at 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.   

The IMA identified no overarching concerns based on the responses from all five Health and Social Care Trusts and is sufficiently assured based on the information provided about the robustness of identification processes, record keeping and retrospective checks.  

The report can be located here.  

Pam Everett, IMA Director of Operational Delivery said: “The IMA has welcomed the positive collaboration with Health and Social Care Trusts in Northern Ireland who have sufficiently assured the IMA that each Trust is discharging their responsibilities and are providing appropriate support in relation to making and supporting EUSS applications on behalf of all eligible looked after children, children in receipt of Health and Social Care Trust care and support, and care leavers.   

“Those who have successful applications should have guaranteed their rights to continue to live, study and work in the UK.”  

Based on the information provided, the IMA does not at this stage consider that further compliance action is required by any Health and Social Care Trust in Northern Ireland.   

The initial review of all local authorities and Health and Social Care across the UK have been completed as part of Phase 1 of this work.  The IMA will continue with individual assurance reviews across England and Scotland.   

 

IMA Welcomes Home Office Decisions On Measures To Implement Landmark Judgment

The judge had ruled in favour of the IMA in December 2022 and clarified that the Withdrawal Agreement residence right of a person with pre-settled status does not expire because someone does not make a second application to the scheme, provided they continue to meet the necessary conditions.

The judgment also found that irrespective of an application for settled status, those who have lived here for five years and have continued to meet the relevant conditions (as set out in the Agreements) are automatically entitled to permanent residence rights under the relevant Agreements.

The IMA raised significant concerns with the Home Office about its original measures to implement the judgement and discussed further changes to mitigate these issues.

In the IMA’s view, the Home Office’s initial approach of automatically applying a two-year extension to pre-settled status holders shortly before they approach their current date of expiry did not go far enough to address the judgment. This was because it could potentially adversely impact their rights.

The IMA was concerned this position may have continued to cause challenges for citizens, for example with employment or housing, due to the continued temporary nature of pre settled status being visible to third parties when checking a citizens’ status. The judgment was clear, status should not expire providing the person continues to meet the underlying conditions.

The IMA emphasised its concerns about this approach by the Home Office and sought a review of how they were implementing the judgment. The Home Office has now outlined several further changes it intends to make, some of which have been undertaken. These include:

  • Removal of pre-settled expiry dates from View & Prove and right to work (including licensing) and right to rent checking services for third parties – this has now been undertaken;
  • Removal of the requirement for employers and landlords to carry out follow-up checks once pre-settled status has been initially determined;
  • A five-year extension to pre-settled status instead of the current two-year extension and;
  • A public statement to make it clear to citizens how the judgment is being implemented.

Miranda Biddle, Chief Executive of IMA said: “From the outset we have always been clear that the court’s ruling is implemented in a manner that provides clarity and practical resolution for citizens.

“At the same time, it is crucial that in implementing the judgment, the uncertainties being faced in relation to citizens’ ability to access and prove their rights are addressed and concluded.

“We therefore welcome the package of measures which the Home Office has announced they will be putting in place as a pragmatic way of ensuring the principles of the judgment are upheld.

“This will mean that citizens with pre-settled status are assured they will not experience issues when proving their rights to  work and rent  as their digital status end-date will not be visible to landlords, employers and other external third parties.

“The IMA will continue to hold the Home Office to account and will now be monitoring how these measures are implemented.”

The IMA will also continue to give updates on this issue and will be seeking assurance on how these changes are made. We also reserve the right to take further action, including litigation, if necessary, if these measures do not prove effective in ensuring that the rights of citizens are upheld.

Anyone facing difficulties accessing their rights is encouraged to contact the IMA for support.

For more information visit the IMA’s website for detailed information on the rights of EU and EEA EFTA citizens and their family members who have applied to the EUSS.