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

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

IMA 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:

  • 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.