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.

Home Office publishes new guidance on EUSS reforms

The guidance for caseworkers is part of wider reforms to the EUSS and gives details about the type of circumstances, in which late applications will be accepted as well as the type of evidence that should be provided to support that application.

The reforms address repeat application situations. They explain that, where someone has already made a previous application (in-time or late application) to the EUSS and whose application has been refused or rejected, they will not normally be able to make future applications to the EUSS unless there are compelling or compassionate practical circumstances.

The updated guidance also contains information about the other EUSS reforms including the closure of the EUSS to Zambrano and Surinder Singh cases and preventing illegal entrants to the UK being able to apply to the EUSS as a joining family member.

The IMA has published a Q&A on their website about the reforms.

The IMA will continue to engage with the Home Office in relation to how the reforms will be implemented and will provide further updates when this detail 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 EUSS can also be found on the IMA’s website.

IMA statement following Court of Appeal judgment relating to durable partners under the EU Settlement Scheme

The Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) intervened within the proceedings of Celik (‘the applicant’) v Secretary of State for the Home Department (‘the SSHD’). The proceedings were before the Court of Appeal, on appeal from the Upper Tribunal.

The proceedings concerned an appeal of a decision by the SSHD to reject an application to the EU Settlement Scheme (‘the EUSS’). The applicant had made two applications to the EUSS, one in 2020 before the end of the transition period (31 December 2020) and one in 2021, after the end of the transition period. Both were refused by the SSHD.

The IMA considered this case raised important questions regarding the interpretation of the Withdrawal Agreement and intervened with the aim of seeking to assist the Court to determine these questions. The AIRE Centre and Here for Good also intervened in the proceedings.

The focus of the IMA’s intervention was on the first application to the EUSS submitted by the applicant. Specifically, whether that application fell within Article 10(3) of the Withdrawal Agreement, and therefore its treatment by the SSHD was subject to the requirements of that Agreement.

In order to benefit from the requirements of the Agreement, the applicant has to fall within its scope.

For extended family members, in order to be within scope of the Agreement, they are required to have had their residence facilitated in the UK prior to the end of the transition period (31 December 2020) or had a pending application for facilitation of residence at that time. Such facilitation in the UK was by way of obtaining or applying for a residence card.

Extended family members include durable partners. A durable partner is where two citizens have lived together in a relationship akin to a marriage or civil partnership for at least two years (or have other evidence to show that the relationship is serious).

The applicant had not obtained a residence card before the end of the transition period. The key question for the IMA was whether their application to the EUSS should be treated as an application for a residence card and therefore subject to the requirements of the Withdrawal Agreement. The SSHD considered the application to the EUSS not to be such an application for a residence card as such an application had to be made via a different route, namely on a different form under the EEA Regulations[1].

The IMA and the other interveners submitted to the Court of Appeal that an application for leave to remain as a durable partner under the EUSS, submitted before 11pm on 31 December 2020, can be treated as an application for facilitation of residence falling within Article 10(3) of the Withdrawal Agreement, attracting its protections.

The hearing took place before the Court of Appeal on 4 and 5 July and the IMA made written and oral submissions. You can read the IMA’s skeleton argument via the website.

The Court of Appeal handed down their judgment on 31 July. It can be found on their website. The applicant lost his appeal.

The Court of Appeal held that the proceedings concerned an appeal of the second application to the EUSS made by the applicant in 2021. It therefore did not consider the decision of the SSHD on the first application and did not decide whether or not an application to EUSS made before the end of the transition period (31 December 2020) was, or was to be treated as, an application for a residence card. The Court of Appeal indicated that this issue will need to be decided in a case in which it arises for decision on the facts (see paragraphs 96 and 97 of the Court of Appeal judgment).

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.

Notes:

The 158^th Practice Direction amendments which supplement the Civil Procedure Rules 1998 were updated in July 2023 so that when a party serves a statement of case in civil proceedings which raises a citizens’ rights issue, that party must send a copy of the statement of case to the IMA at the same time.

[1] Immigration (European Economic Area) Regulations 2016

IMA responds to Home Office plans to implement judgment following judicial review

Following legal action by the IMA, the High Court found an element of the EUSS to be unlawful. Specifically, it found that it is unlawful that citizens with pre-settled status would have lost their rights if they had not made a further application to the EUSS before it expired. This means it is not permitted for citizens’ pre-settled status to expire if they have not made a further application within five years of the date on which pre-settled status was granted.

The court also said that the right of permanent residence under the Withdrawal Agreement is acquired automatically, without the need for a further application, once the necessary conditions are met. You can read more about the background and key issues in the case on the IMA’s website.

The IMA has been engaging with the Home Office for several months to seek clarity about how it will ensure the judgment is fully implemented so that no one will see their pre-settled status expire if they have not made a further application for settled status.

The Home Office has now confirmed how it will ensure the judgment is implemented and has said that it will extend pre-settled status without an application. Citizens with pre-settled status who have not yet obtained settled status ahead of the date on which their pre-settled status is currently due to expire will have their status automatically extended by two years.

This extension will be applied automatically to citizens’ digital status in all relevant cases and there will be no need for them to contact the Home Office in advance. Citizens will be notified once the extension has been applied.

While the IMA welcomes the high-level information that has now been provided, it is disappointed that, to date, the Home Office has not shared the necessary detail for the IMA to be satisfied about how the terms of the judgment will be implemented.

In particular, the IMA continues to request detail about how the automatic acquisition of the right of permanent residence will be reflected once the conditions have been met and how citizens will be able to prove that right.

Chief Executive of the IMA, Dr Kathryn Chamberlain said:

“When we brought this case, we wanted to make sure that no citizen unlawfully lost their right to reside in the UK, together with all associated rights.

“So, while we broadly welcome the commitment from the Home Office that no-one will lose their pre-settled status for failing to make a second application, we remain concerned about the lack of detail about how the plans will work in practice.

“This has made it difficult for us to offer any certainty to citizens with pre-settled status about how the judgment is going to affect them as we have not yet been able to properly assess the measures the Home Office is adopting.”

The IMA will now be speaking to the Home Office in relation to how the measures will be implemented and will provide further updates when this detail 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.

New IMA Chief Executive appointed

Miranda joins the IMA from the Independent Office for Police Conduct (IOPC) where she was Director of Operations, and previously worked for the Parole Board.

Miranda’s appointment follows a competitive recruitment process overseen by the IMA’s Chair, Sir Ashley Fox following the announcement of the retirement of the current Chief Executive Dr Kathryn Chamberlain.

Miranda will be responsible for the day-to-day operations and management of the IMA, working closely with the rest of the IMA Board to advise its members on how the IMA is delivering its responsibilities in the UK and Gibraltar to monitor and promote the implementation of citizens’ rights under the Withdrawal and Separation Agreements.

Sir Ashley Fox, Chair of the IMA said:
“I am delighted to confirm Miranda’s appointment as the IMA’s new Chief Executive.

“I look forward to working with her to continue to carry out the important work of the organisation.

“I’d also like to take this opportunity to thank Kate Chamberlain, our outgoing Chief Executive for her excellent work in successfully establishing the IMA.”

Miranda Biddle said:
“I am excited and honoured to accept this role. The IMA has developed so much since its inception and I am committed to maintaining its values of transparency and impartiality while putting citizens at the heart of decision-making.

“I look forward to working collaboratively with staff, stakeholders and communities to ensure that the rights of citizens continue to be upheld.”

Miranda will take up her position in August 2023.