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.

Home Office failed to comply with obligation to issue Certificates of Application immediately to EU Settlement Scheme applicants in some cases, IMA inquiry finds

Read the report on the IMA’s website

EU and EEA EFTA citizens and their family members who apply to the EUSS must receive a Certificate of Application immediately. This certificate is used to evidence rights, for example the right to work, rent or access benefits, while their application is being considered.

The Independent Monitoring Authority for the Citizens’ Rights Agreements’ (IMA) launched its first inquiry to establish whether the Home Office fulfilled its obligation to issue a Certificate of Application immediately to applicants to the scheme.

The inquiry looked at two specific points in time to assess the extent to which Certificates of Application were being issued immediately: June 2021 and June 2022.

For digital applications which required no manual intervention by a caseworker, the inquiry found that the certificates were issued immediately, which accounted for the majority of applications made to the scheme via the automated digital route. For digital applications that required caseworker intervention, the inquiry identified delays due to an insufficient number of available caseworkers relative to demand.

There were also delays in issuing certificates for applications made via paper forms. Again, this was caused by an insufficient number of available caseworkers. However, delays were also caused by an insufficient number of caseworkers trained to issue certificates for paper applications and a decision to partially create paper applications on the system without issuing a Certificate of Application.

By June 2022, the inquiry found that issuing certificates to paper applications and digital applications requiring manual intervention continued to be subject to delays as the number of available caseworkers remained insufficient in comparison to demand.

The IMA’s recommendations to the Home Office include collecting meaningful data to monitor the time taken to validate applications to better manage the system of issuing certificates. In the absence of such data the Home Office is unable to assess the extent to which Certificates of Application are issued immediately.

The IMA also recommends adopting a service standard of five working days to issue the certificates and that the Home Office should monitor performance against that target.

The Home Office must now publish its response to the IMA’s recommendations within three months.

Dr Kathryn Chamberlain, IMA Chief Executive said:

“While we recognise that millions of people have applied to the EU Settlement Scheme, many of whom without issues, we realised that this issue had the potential to severely impact people’s lives and their rights.

“That’s why we used our powers to conduct an inquiry as we had reasonable grounds to believe that the UK may have failed to comply with the Agreements. We will now work with the Home Office to ensure our recommendations are accepted and implemented in full so that citizens can be assured that they will receive a certificate following a valid application to the scheme in a timely manner.”

IMA statement on work to address concerns raised with EU Settlement Scheme

The UKVI accounts of the Cohort continued to show a Certificate of Application (CoA) rather than a refused status until updated as part of the Home Office exercise in January 2023. The IMA has been liaising with the Home Office and Foreign, Commonwealth and Development Office (FCDO) to understand the reasons for the update and implications for citizens.

The IMA understands that individuals within the Cohort had received a final decision on their EUSS application in the form of a decision letter, in the usual way, and either did not appeal (and/or request an administrative review) or had exhausted their appeal rights. The Cohort do not continue to benefit from temporary rights under the Withdrawal and Separation Agreements (WA).

The IMA does not consider the fact that the UKVI accounts of the Cohort continued to show a CoA overrides the refusal decision and therefore does not provide continued temporary rights. Those rights only continue for as long as a decision (or any appeal) is awaited on their application. A final decision had been reached and sent to individuals within the Cohort, and included information about how to appeal a decision. The fact that the UKVI accounts of the Cohort continued to show a CoA does not extend the time limit for bringing the appeal.

Notwithstanding the position in relation to these individuals, the IMA has a continued interest in the integrity of the EUSS itself. As a result, the IMA has sought to understand why CoAs were available to individuals whose applications had been determined and consequences arising.

The Home Office has indicated that prior to April 2022, the EUSS digital status system did not have the capability to reflect that an administrative review or appeal was pending in respect of an individual’s case. As a result, the IMA understands that a decision was taken to suspend reflecting ‘refused’ status on UKVI accounts to ensure individuals could continue to access WA rights while any administrative review and/or appeal was pending. From April 2022, the ability to reflect pending administrative reviews and appeals was possible. Refusal decisions made from this point were reflected on digital status. It was also necessary to conduct a retrospective exercise to reflect refused statuses on the Cohort’s UKVI accounts, and this was undertaken in January 2023. The IMA understands that the decision made to continue access to a CoA was to ensure citizens’ rights protections.

A consequence of retaining a CoA for refused applicants was that some individuals within the Cohort may have continued to access UK government benefits and services to which they were not entitled. We understand this was the case with some benefits through the Department of Work and Pensions and may have also affected access to educational funding and medical treatment. We understand that relevant government departments were aware of the presence of CoAs for refused applicants, and presumably the potential for overpayment as a result, from August 2021.

The IMA understands that relevant departments are now in the process of contacting affected citizens in order to stop payments to those with no current entitlement, and in some cases recover funds made available to citizens from the point of refusal of their EUSS application. In this regard, the IMA acknowledges the legal requirement upon departments to recover funds in such circumstances and understands that departments will seek to support citizens to limit hardship.

The IMA will be engaging with the devolved governments to understand their approach regarding recovery.

The IMA will continue to monitor further enhancements to digital status affecting the accuracy of EUSS information. Whilst this exercise sought to provide protections to the Cohort, the IMA will continue to liaise with the Home Office and the FCDO to understand implications of future changes to the EUSS and the implications across government.

IMA to intervene in Upper Tribunal case

The IMA 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.

This case raises a number of important issues, including whether there is any obligation to decide applications under Article 18 of the Withdrawal Agreement and Article 17 of the EEA EFTA Separation Agreement (“the Agreements”) within a reasonable time together with how you assess what is reasonable. The IMA has intervened as it feels that in can assist the Tribunal in the interpretation of relevant provisions of the Agreements. You can read the IMA’s written submissions in full on our website.

The hearing is scheduled to take place on 18 May 2023.

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.

IMA launches third annual survey to measure EU citizens’ trust in public bodies to protect their rights

The online survey will measure citizens’ awareness of their rights, their trust in public bodies to protect their rights, and their awareness and experiences of the IMA.

The IMA is interested to hear from all EU, EEA EFTA citizens and their family members living in the UK and Gibraltar, but particularly citizens from Sweden, Bulgaria, Romania and Norway this year as the number of responses received by these citizens in last year’s survey were not reflective of the size of these communities in the UK and Gibraltar.

The IMA will work closely with other organisations such as EU Embassies and advocacy groups to ensure the survey reaches as many of these citizens as possible.

The findings will provide a measure of the IMA’s progress since it became operational in December 2020 and inform its ongoing programme of work.

The IMA will publish a report with the findings following its closure.

Citizens who feel their rights are not being upheld are also encouraged to contact the IMA.

Complete the survey here.

IMA launches second phase of campaign to promote awareness of EU and EEA EFTA citizens’ rights

Following the success of the first phase of the campaign, which received over 10 million impressions on social media by target audiences, the #YourRights campaign will continue to build citizens’ awareness about the rights they should expect to be upheld. These include the right to live and enter the UK, work and have professional qualifications recognised and be able to access education, pensions, benefits and social security as well as the right to equal treatment following the UK’s exit from the EU. Audiences are encouraged to visit the IMA’s website for more information about these rights.

The campaign’s messages will run on European-language radio stations and via Facebook and Instagram advertising in the UK and Gibraltar from Thursday 16 March..

The IMA will also share campaign messaging across its other social media channels including Twitter and LinkedIn and is hoping to work with partners including advocacy groups and European institutions to ensure messaging reaches citizens.

The campaign’s messaging will continue to address the findings of the IMA’s survey of almost 3,000 EU citizens in the UK in 2021 which found that almost half of those asked were not aware of their rights as contained in the Withdrawal and Separation Agreements and 87% had not heard about the IMA or its work.

IMA intervenes in Court of Appeal Proceedings

The IMA 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.

This case, which concerns 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 current proceedings.

The Court of Appeal hearing is listed on 8-10 March 2023. In readiness for the hearing, the IMA has filed its skeleton argument.

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.