Citizens Rights Watchdog Gives Update on Judicial Review

In December 2022, the High Court found certain aspects of the EU Settlement Scheme (EUSS) to be unlawful. The Court’s ruling affects more than two million EU and EEA EFTA citizens with pre-settled status.

The judge ruled that individuals with rights under the Agreements should not lose their right to live in the UK if they do not make a second application to the EUSS. Also, those with pre-settled status automatically acquire permanent residence rights once they have lived here for five years and met the relevant conditions under the Agreements.

The EUSS is the way which EU and EEA EFTA citizens and their family members secure the right to live in the UK. There are two types of EUSS status: pre-settled status for those that have lived in the UK for under five years and settled status, usually for those who have lived here for over five years.

The Home Office plans to address the High Court’s judgment by granting a two-year extension of pre-settled status for those who haven’t switched to settled status shortly before their original expiry date, automatically converting as many pre-settled status holders to settled status as possible and ensuring individuals can rely on their permanent residency rights once acquired.

The IMA is concerned that a two-year extension for pre-settled status does not address the Court’s ruling and that citizens may face challenges in areas of their lives, such as employment or housing due to the temporary nature of pre-settled status being reflected on official documents.

It is also highlighting a lack of clarity for citizens and authorities regarding automatic acquisition of permanent rights, leading to potential confusion.

The IMA is urging the Home Office to make a public statement clarifying the rights of citizens under the Agreements.

Miranda Biddle, Chief Executive of IMA said: “We continue to work with the Home Office to resolve potential issues arising from the proposed implementation of the High Court judgment. While the Home Office has been effective in many cases, some citizens face uncertainty impacting their ability to live, work, and raise families in the UK.”

The IMA will continue to give updates on this issue but in the meantime, 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 who have applied to the EUSS.

For further informaiton on changes to the EU Settlement Scheme as a result of the Judicial Review please visit the FAQs section of our website.

Citizens’ Rights Watchdog Gives Update on Judicial Review

The High Court found in December 2022 that parts of the EU Settlement Scheme (EUSS) were unlawful following legal action by the IMA.

The EUSS was developed by the Home Office before the UK exited the European Union. EU and EEA EFTA citizens resident in the UK by 31 December 2020, and their family members, are required to apply to this scheme to remain living in the UK.

Under the EUSS, citizens who have been living in the UK for less than five years usually receive what is called pre-settled status. Those who have lived here for at least five years usually receive settled status.[1]

If someone has pre-settled status, they were originally required to apply for settled status within five years of being granted pre-settled status. A failure to do so would result in them losing their rights, including the right to live and work in the UK. The High Court decided this loss of rights was not permitted by the Withdrawal Agreement and the EEA EFTA Separation Agreement (the Citizens’ Rights Agreements).

The Home Office has informed us that its plans to implement the High Court judgment consist of:

  • An extension of their pre-settled status of two years for those who have yet to convert to settled status. The extension will take effect a short time before the current expiry date of their pre-settled status.
  • Using government data to automatically upgrade pre-settled to settled status where the required five years of residence has been met.
  • Some changes to ensure those with pre-settled status who automatically achieve permanent residence rights under the Citizens’ Rights Agreements are able to rely on those enhanced rights.

Alongside the process of automatically upgrading pre-settled status to settled status and the two-year extension of pre-settled status, the Home Office also plans to take steps to remove pre-settled status from those who have ceased to meet the relevant conditions contained in the Citizens’ Rights Agreements. This will be subject to a right of appeal.

While details of the plans continue to be developed by the Home Office, the IMA has concerns with some elements of them.

The IMA believes that an extension of pre-settled status does not go far enough to implement the judgment and that therefore this element continues to be incompatible with the Agreements. The extension does not change the fact that pre-settled status is time limited.

The IMA is concerned that maintaining that expiry period for pre-settled status may have practical effects on citizens exercising their rights, for example those who are seeking employment or accommodation. A prospective employer or landlord may, albeit wrongly, discriminate against a citizen who holds pre-settled status that is due to expire soon.

While plans for automatic upgrade from pre-settled status to settled status continue to be developed by the Home Office, the IMA does not have sufficient detail to make a full assessment of them. However, the IMA will want to be assured that any relevant processes, in particular where citizens may lose their residence status, are undertaken fairly and in line with the requirements of the Agreements.

These elements of the plans are not directly for the purpose of implementing the judgment and the IMA understands that they are not to be implemented until later in 2024. The IMA will provide further updates as the Home Office plans develop.

The IMA remains concerned about the implementation of the second part of the High Court’s judgment. This found that permanent residence rights under the Agreements accrue automatically to a pre-settled status holder where the relevant conditions in the Agreements are met.

Plans to automatically upgrade pre-settled status holders to settled status will hopefully ensure the permanent residence rights of more citizens will be reflected by their EUSS status. However, there will remain a lack of clarity for citizens and public authorities regarding the rights of some citizens who hold pre-settled status but who are in fact in possession of permanent residence rights.

The IMA believes that it is unreasonable to expect citizens to be fully aware of their enhanced permanent residence rights where they continue to hold pre-settled status and to know that these rights override any domestic laws, policies or decisions which fail to recognise them.

The Home Office is continuing to encourage people to obtain secure evidence of their permanent residence rights in the UK by applying to switch from pre-settled to settled status as soon as they are eligible to do so. The IMA also encourages people who are eligible for settled status to make an application to switch from pre-settled status to settled status.

The IMA is also asking the UK Government to make a public statement confirming the permanent residence rights of those with pre-settled status who have met the relevant conditions. This will help ensure that those citizens are able to rely on their permanent residence rights if they have not obtained settled status under the EUSS.

Chief Executive of the IMA Miranda Biddle said:

“We are keen that we continue to work with the Home Office to make sure that we can resolve any potential issues which could arise as the result of its proposed implementation of the High Court judgment.

“We recognise that in the majority of cases the Home Office has worked effectively and at pace to ensure EU and EEA EFTA citizens are able to exercise their rights as outlined in the Citizens’ Rights Agreements. We do, however, remain concerned that some citizens with pre-settled status face continued uncertainty and potential impact on their ability to live, work and raise their families in the UK as provided for in the Agreements.”

The IMA will continue to provide further updates on its engagement on this issue when information 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.

[1] In some limited circumstances, it is possible to qualify for settled status after less than five years’ residence.

IMA is assured that local authorities in Wales are protecting the rights of EU 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) to guarantee their rights to live, work, study, and access benefits in the UK.  

In October 2022, the IMA launched a review of local authorities across the UK 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.  

The initial review sought 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. 

An interim report for all local authorities in Wales found only one local authority’s response achieved a green grading for each of the three key areas, with six other local authorities meeting the green status in two of the three key areas. 

Following the report, the IMA worked collaboratively with each local authority during a compliance period before a final review was made.  

As a result of further engagement, the IMA identified that the majority of local authorities in Wales had outlined robust processes in place to identify and support eligible cohorts in line with Home Office guidance.  

In addition, the IMA made recommendations for improvements and offered further support to aid understanding of the EUSS. This has helped improve the identification and support for eligible cohorts. 

Several authorities have reported taking proactive measures to improve their processes and procedures and management information and reporting systems, and others have developed additional guidance for staff delivered through awareness and training. Notably, this has led to better identification by local authorities of eligible children and care leavers for the scheme, as well as being able to signpost eligible family members. 

As a result of the measures taken by local authorities in Wales, the IMA is assured that all 22 local authorities are protecting the rights of EU looked after children and care leavers. 

Pam Everett, IMA Director of Operational Delivery said:  “The IMA has welcomed the positive collaboration with local authorities in Wales, along with the support of Albert Heaney, Chief Social Care Officer for Wales, The Welsh Government in encouraging local authority engagement.

“Most importantly however, this work has resulted in additional numbers of children being identified as eligible for the EU Settlement Scheme, and upon successful application will guarantee their rights to continue to live, study and work in the UK.”

The review of all local authorities in Wales has now concluded with ongoing reviews across England, Scotland, and Northern Ireland.  

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.

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.

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 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 statement on concerns over EU Settlement Scheme

Ongoing access to a Certificate of Application meant that individuals’ rights under the Withdrawal Agreement were protected pending final determination of any administrative review or appeal, but also means that, after exhausting their appeal rights, potentially 141,000 people continued to enjoy rights to which they were not entitled, including receiving benefit payments. We understand the government departments affected are working through the implications.

The Home Office has confirmed that this only affects individuals who received a refusal decision between 27 June 2021 and 19 April 2022. Anyone who has been granted pre-settled or settled status is unaffected, and they do not need to take any action.

The IMA is concerned that this situation arose and the impact it could have on those affected. It has therefore written to the Home Office to seek clarity on what steps have already been taken to remedy it and what further steps will be taken.

We are seeking assurance that the EUSS  digital system is fit for purpose, maintained and audited to reflect accurate digital statuses, and accurately available on demand for all eligible citizens.

We will consider the response of the Home Office to our request for information before deciding on what next steps we may take.”