IMA welcomes confirmation that Home Office will not pursue appeal in EU Settlement Scheme case

The IMA, which brought the case, was recently successful in challenging the Home Office’s position that citizens with pre-settled status must make a second application to the EUSS or face losing their rights under Part 2 of the Withdrawal Agreement. The court agreed that it was unlawful for citizens to lose their rights if they failed to either apply for settled status, or re-apply for pre-settled status, before the expiry of their pre-settled status.

Chief Executive of the IMA, Dr Kathryn Chamberlain said:

“We are pleased that the Home Office has taken the decision not to proceed with the appeal, which we hope will ensure clarity for more than two million citizens in advance of the expiry of their pre-settled status.

“We have already begun discussing with the Home Office how the IMA will be engaged as part of the Home Office’s work to make the necessary changes to the EUSS. We hope that being part of that process will ensure the IMA can monitor those changes as they are developed, and also ensure that they are sufficiently promoted amongst citizens.”

Until the new arrangements are in place, citizens with pre-settled status are encouraged to apply for settled status under the EUSS as soon as they are eligible for it.

ENDS

Notes to editors:

Read the judgment in full via the IMA’s website.
Read other documents relating to this case on the IMA’s website including:

The Citizens’ Rights Agreements refer to Part 2 of the Withdrawal Agreement and the EEA EFTA Separation Agreement (as well as the Swiss Citizens’ Rights Agreement).
Under the EU Settlement Scheme, citizens are eligible for settled status usually when they have lived in the UK for a continuous five-year period. Those who haven’t spent a continuous five-year period in the UK are usually granted pre-settled status and can stay in the UK for a further five years before needing to either re-apply for pre-settled status or upgrade to settled status.
According to Home Office statistics, there were approximately 2,151,270 million citizens with pre-settled status as of 31 December 2021. As of 30 September 2022, approximately 2,159,770 people held pre-settled status.

IMA intervenes in Tribunal proceedings

The Upper Tribunal has found the EU Charter applicable under the Withdrawal Agreement in certain circumstances. The judgment is available to view here.

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, as with the ongoing Court of Appeal case in which the IMA is also intervening, raised issues as to the application of the Charter of Fundamental Rights of the European Union (“the Charter”) under the framework of the Withdrawal Agreement and EEA EFTA Separation Agreement (“the Agreements”). The hearing in relation to the issue of the Charter was heard on 15 and 16 November 2022.

The IMA intervened because it felt that it could assist in clarifying the underlying legal framework following the UK leaving the EU, particularly as to the framework through which the Charter is to now be viewed. The IMA notes the potential wide-reaching implications of any decision as to the Charter. The IMA also decided to intervene because its powers extend to EU, EEA and EFTA citizens and their family members, and so the IMA considered that it could provide strategic oversight to this particular litigation. You can read the IMA’s written submission on the Charter in full via our website.

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 granted permission to intervene 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.

The two conjoined Court of Appeal cases raised issues as to the application and extent of the Charter of Fundamental Rights of the European Union under the framework of the Withdrawal Agreement and EEA EFTA Separation Agreement (“the Agreements”) following the UK leaving the EU. One of the cases also raised the extent of protection for derivative rights of residence under the Agreements.

The IMA was granted permission to intervene in both cases. Although one of the cases has recently settled due to agreement between the Appellant and Respondent, the other case is proceeding with the IMA’s intervention. A skeleton argument was submitted by the IMA for its intervention in the case.

The IMA sought to intervene for two reasons. First, the IMA considers that it can assist the Court as to the meaning and effective of the international and domestic legal framework following the UK leaving the EU.

Secondly, the IMA noted the differing judgements of the lower Courts within the two cases as to the ongoing application of the Charter following the UK leaving the EU. The IMA considers that it can assist the Court as to the framework through which the Charter is to be viewed following the UK leaving the EU and notes the potential wide-reaching implications of any judgment on the Charter. For these reasons, this case is important for all rights contained within the Agreements and will provide clarity for citizens with these rights.

The IMA was granted permission to intervene on 21 September 2022.

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

Note

Since publishing this article the IMA was given permission to amend its skeleton argument. This page has therefore been updated with the amended argument.

IMA files skeleton argument in judicial review claim against Home Office

This is available to read via the IMA’s website.

The IMA considers that the Home Office’s position that citizens who fail to either apply for settled status, or re-apply for pre-settled status, before the expiry of their pre-settled status automatically lose their rights is unlawful.

Further information can be found in the IMA’s previously published press release and its statement of facts and grounds which are both available on the IMA’s website.

This case is currently listed for hearing in the High Court in London on 1 and 2 November 2022.

Open letter to carriers

25 July 2022

CARRIERS – AWARENESS OF VALID TRAVEL DOCUMENTS

OPEN LETTER TO CARRIERS

The Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) protects the rights of EU and EEA EFTA citizens, and their family members, living in the UK and Gibraltar. We monitor public bodies in the UK and Gibraltar to make sure they uphold the rights of EU and EEA EFTA citizens and to identify any systemic issues. We have the powers to launch inquiries and bring legal action, if appropriate, against bodies that don’t uphold the rights of EU and EEA EFTA citizens. We are independent of government.

We have received a number of complaints concerning carriers’ awareness of travel documents required from EU and EEA EFTA citizens protected by the EU Withdrawal Agreement and EEA EFTA Separation Agreement (“the Agreements”), when travelling to the UK. We have been made aware of instances where carriers are asking citizens to provide proof of their status under the EU Settlement Scheme (EUSS) prior to allowing them to travel or denying boarding where a valid national identity card has been provided.

We have raised these issues with the Home Office who have directed us to guidance that has been issued to carriers.

The guidance can be found via the following links:

We wish to remind carriers that EU and EEA EFTA citizens who are within scope of the Agreements currently have the choice between using a valid national identity card or a valid passport to enter the UK.

The IMA is concerned that some carriers are restricting travel, contrary to the published guidance, by not accepting valid national identity cards prior to boarding and/or asking for proof of status under the EUSS.

The Guidance is clear that:

“Carriers are not currently required to check an EU, EEA or Swiss citizen’s immigration status, or their entitlement to travel on a national identity card, when deciding whether to bring them to the UK. They only need to check that they have a valid passport or national identity card”.

We are continuing to monitor this situation and remain in active discussions with the Home Office. More information on what we are working on, including the awareness of digital status and valid ID documents to travel can be found on our website.

Whilst any queries in relation to the guidance should be addressed to the Home Office, we are happy to discuss any issues concerning the rights of citizens who are protected by the Agreements with carriers directly.

Should you have any queries please contact Intelligence@IMA-citizensrights.org.uk

Independent Monitoring Authority

Drop-in session for the IMA’s inquiry into Certificates of Application

Are you, or do you know someone who has had problems whilst waiting for a decision on their EU Settlement Scheme application?

If so, then we invite you to join our lunchtime Drop-in session on 26th July at midday. It’s an opportunity to find out more about the IMA’s inquiry into Certificates of Application and how you can contribute to our work.

A Certificate of Application should be issued immediately when an EU Settlement Scheme application is made. It enables citizens to exercise relevant rights whilst their application is being considered. Without one, citizens could be blocked from getting work, accessing benefits, or securing a home.

At the Drop-in session, you will be able to find out more about the IMA’s inquiry and how you can contribute to our investigation.

We hope to see you on the 26 July. Link to Drop-in for the IMA’s inquiry into Certificates of Application.

Independent Monitoring Authority receives permission for judicial review hearing against Home Office

The hearing will take place at the Royal Courts of Justice on the 1st and 2nd of November 2022.

The application for judicial review is being sought on the basis that the IMA considers the Home Office’s position that citizens who fail to apply for Settled Status before the expiry of their Pre-Settled Status automatically lose their rights, is unlawful.

An IMA spokesperson said:

“We welcome the decision of the court to allow our case to be heard. This is an important milestone as we hope to provide clarity and certainty for the millions of citizens with Pre-Settled Status.

“In the meantime, we continue to encourage citizens experiencing difficulties in exercising their rights to make us aware of this via our online portal.”

Read the permission order in full on the IMA’s website.

The IMA encourages any citizen experiencing difficulties in exercising their rights to make them aware of this through their online portal.

Citizens’ Rights Watchdog Publishes First Annual Report

The IMA started work on the 31 December 2020 and was established as a result of the Withdrawal Agreement and the EEA EFTA Separation Agreement.

The IMA can hear citizens’ complaints and has the power to launch inquiries and, where appropriate, take legal action against public bodies if systemic issues are identified that are affecting citizens’ rights.

In its first annual report, the IMA highlights how the rights of citizens have been upheld by public bodies in the UK and Gibraltar in 2021 and contains information on:

measures taken by relevant public authorities to comply with the Agreements
the number and nature of the complaints made to the IMA; and
the work undertaken by the IMA in 2021

It also contains further information relevant to the first year of operation.

In 2021 the IMA:

dealt with 237 complaints
brought four cases to an early resolution
reviewed 145 pieces of legislation; and
used its powers to litigate on two occasions

The IMA has undertaken a comprehensive stakeholder engagement programme including meetings with representatives of the UK Government, Northern Ireland Executive, Scottish Government, Welsh Government and the Government of Gibraltar as well as advocacy and support groups representing EU citizens such as Settled, the 3Million, and Citizens’ Advice Services.

All EU Embassies have been approached for meetings and the majority have already taken place.

Dr Kathryn Chamberlain, IMA Chief Executive said:

“During our first year in operation we have learnt a great deal, not least about the complexity of the some of the issues facing citizens in their daily lives now that the UK has left the EU.

“Overall, we have sought to resolve identified issues through early resolutions with relevant public bodies as this helps citizens most directly. However, we have also used our formal powers, where appropriate, including commencing a judicial review against the Home Office in relation to arrangements for moving from pre-settled to settled status.

“We look forward to continuing our work to make sure the rights of citizens living in the UK and Gibraltar are upheld by public bodies, as well as promoting clear understanding of those rights by both citizens and public bodies alike.”

Full details of the work of the IMA can be found on the website. Citizens who feel their rights are not being upheld are also encouraged to report a complaint to the IMA via its portal.

IMA launches inquiry to investigate EUSS Certificate of Application delays

The call for evidence survey and evidence gathering phase of this inquiry have now closed. The IMA thanks the organisations and individuals who have taken the time to respond to the inquiry and we aim to shortly deliver an inquiry report summarising our findings.

EU, EEA EFTA citizens and their family members who applied to the EUSS but are awaiting the outcome of their application should receive a Certificate of Application immediately. This certificate can be used to evidence their rights, for example the right to work, rent or access benefits, while their application is being considered.

The inquiry comes as the IMA has received a number of complaints and information from citizens experiencing delays in receiving their Certificate of Application. The IMA will examine the extent, nature and cause of any delays in issuing the certificates and assess whether there is any breach of the Withdrawal and Separation Agreements. The IMA will also look at the impact any delays are having on citizens who are unable to exercise their rights until the Certificate of Application is issued.

Citizens were encouraged to share details of their experiences via a call for evidence survey and IMA has concluded its evidence gathering phase as part of the inquiry. The IMA thanks the organisations and individuals who have taken the time to respond.

As part of the inquiry, IMA staff reviewed existing complaints, took accounts from citizens and considered information from stakeholders and other third parties. The IMA also investigated the policies and processes adopted by the Home Office for issuing Certificates of Application. This included performing on-site visits and interviewing Home Office staff.

Dr Kathryn Chamberlain, IMA Chief Executive said:

“We recognise the potential impact this important issue could have on people’s lives and their rights. That’s why it’s crucial that we gather information from those affected to ensure we come to informed conclusions, and where appropriate, make recommendations to put things right.

“An inquiry will not lead to results overnight, therefore in the meantime we strongly encourage citizens experiencing ongoing issues to seek individual support through organisations which provide tailored advice.”

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.

IMA launches website Issues Log to inform public of work to uphold EU citizens’ rights

The Issues Log enables users to view details of topics being considered by the IMA as well as the action taken. The IMA considers areas of concern based on complaints reported by affected citizens, through its own monitoring of how public bodies in the UK and Gibraltar are protecting the rights of citizens, or through information gathered via its work.

The new dashboard will be regularly updated and increases transparency about the organisation’s operations and raises awareness amongst EU and EEA EFTA citizens living in the UK and Gibraltar about their rights.

The majority of work currently being undertaken by the IMA relates to the EU Settlement Scheme, with some of the issues first raised as part of the IMA’s Call for Evidence on the scheme last year. These include problems using share codes to access pre-settled or settled status and updating personal details.

Dr Kathryn Chamberlain, IMA Chief Executive said:

“Our values state that we are transparent in the way we operate, and we make impartial decisions that put citizens at the heart of what we do. The Issues Log will support those values.

“The EU Settlement Scheme is currently an area of focus for the IMA. We are continuing to examine some of the problems associated with the scheme to assess what impact they are having on the ability of individuals to exercise their rights. The Issues Log will provide a useful source of information for those looking for updates on how we are carrying out our duty to uphold citizens’ rights.”