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:

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.

Independent Monitoring Authority successful in landmark High Court challenge against Home Office

The IMA was established to ensure that public bodies uphold the rights of EU and EEA EFTA citizens, and certain members of their families, living in the UK and Gibraltar. It challenged the Home Office’s position that citizens with pre-settled status must make a second application to the EU Settlement Scheme (EUSS) or face losing their rights under Part 2 of the Withdrawal Agreement.

During a judicial review hearing at the Royal Courts of Justice on 1 and 2 November, the IMA argued that it was unlawful for citizens to lose their rights if they failed to either apply for settled status, or in some circumstances re-apply for pre-settled status, before the expiry of their pre-settled status.

Currently all citizens with pre-settled status must apply for settled status after they have lived in the UK for five years. If they do not apply, they will lose their residence rights in the UK under the current system. This means they will also lose rights dependent on this, including the ability to work in the UK, receive healthcare and education and apply for housing and benefits.

In the judgment which was handed down on 21 December, Mr Justice Lane ruled that a right of residence can only be lost in very specific circumstances which are clearly defined in the EU Withdrawal and EEA EFTA Separation Agreements.

A loss of rights for failure to upgrade from pre-settled to settled status was not one of those circumstances, and so by imposing a requirement to upgrade residence status the Home Office was acting unlawfully. The judge also said that those granted pre-settled status are entitled to reside permanently in the UK once they have resided there for the required five-year period.

As a result of his findings, the judge has made a declaration that the EUSS in these respects, as it is currently operating, is unlawful.

The IMA understands that the Home Office is seeking permission to appeal the decision. While that process continues, no changes to the current design of the EUSS are expected and therefore holders of pre-settled status should continue to apply for settled status where they are eligible.

Dr Kathryn Chamberlain, IMA Chief Executive said:

“I am pleased that the judge has recognised the significant impact this issue could have had on the lives and livelihoods of citizens with pre-settled status in the UK.”

“When we brought this judicial review, our intention was to provide clarity for citizens with pre-settled status, of which there were approximately 2.2 million when we filed this case in December 2021. This judgment that the current system is unlawful provides that clarity. We will now liaise with the Home Office on the next steps.”

Rhys Davies, IMA General Counsel said:

“The Withdrawal and Separation Agreements say that people can only lose their rights in a limited set of circumstances and failing to upgrade from pre-settled to settled status is not one of them.

“We brought this case as we wanted to avoid the risk that citizens with pre-settled status who fail to make a second application to the EUSS after the expiry of their pre-settled status following five years of residence in the UK, lose their rights. The earliest point this could happen is in August 2023, marking five years from the earliest grants of pre-settled status.”

Notes:

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 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 reapply 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.

This release has been updated

In a previous issue of this release we said we hoped this judgement helped to clarify the situation for 2.4 million citizens who had pre-settled status at the time of submitting this case to the court in December 2021.This refers to the number of people who at that time had been granted pre-settled status by the Home Office.

However, in December 2021, some 200,000 people had upgraded their status from pre-settled to settled status therefore at the time of submitting the case the number of people with pre-settled status was 2.2 million. We have since updated the press release to reflect this.

EU citizens watchdog takes steps to secure rights of looked after children and care leavers

Following the UK’s departure from the EU, all eligible citizens – including children – need to apply to the EU Settlement Scheme (EUSS) to secure their rights in the UK.

The IMA, which monitors the rights of EU and EEA EFTA citizens is assessing whether local governments are upholding their statutory duties to support applications to the scheme for these children and care leavers.

The review is being undertaken in stages across all local government in England, Northern Ireland, Scotland and Wales. Separate reports will be provided for each part of the UK while England will be separated into nine different regions with reports for each region.

The IMA is monitoring how local government identifies all looked after children and care leavers who need to apply to the EUSS, as well as the procedures they have in place for monitoring applications made. The review will indicate whether the IMA is satisfied that children in care and care leavers will be able to access their rights. These include the right to work and study as well as access healthcare, housing and social security when needed.

The interim report for Wales has already been completed with 22 local authorities being monitored against three areas: identification, record keeping and retrospective checks of eligible children. Each local authority was categorised as either green, amber or red.

Pam Everett, IMA Director of Operational Delivery said:

“We want to be certain that local government has systems and procedures in place to ensure looked after children and care leavers who are EU and EEA EFTA citizens, and their eligible family members, can access all the rights to which they are entitled.

“Our work into this area is ongoing and we look forward to working collaboratively with local government so we can be confident these robust procedures are in place.”

As part of the review, the IMA is monitoring whether local government has plans in place to convert pre-settled status to settled status for children in care, and for this action to be documented as part of care leavers’ pathway plans.

Further action by the IMA, such as compliance investigations and litigation, may be considered if the IMA believes that rights under the Withdrawal and Separation Agreements of children in care or care leavers are at risk.

Judicial Review Claim Issued by IMA

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, living in the UK and Gibraltar.

Under the EU Settlement Scheme (EUSS), citizens who have lived here for less than five years and so have been granted Pre-Settled Status (PSS) must apply for Settled Status (SS) or re-apply for PSS before their current PSS expires. If they do not apply in time, they will automatically lose rights to work, access housing, education and claim benefits and could be liable to removal.

The IMA considers that the Citizens’ Rights Agreements only provide for a loss of rights in limited circumstances, and this is not one of them. The IMA considers that the Home Office’s policy is therefore in breach of the Agreements.

The IMA has already raised these concerns with the Home Office and issued them with a pre-action protocol letter on 15 October 2021. The Home Office does not agree with the IMA’s interpretation of the Agreements and the IMA has, therefore, begun legal action.

Dr Kathryn Chamberlain, Chief Executive of the IMA said:

“In taking legal action now we hope to provide clarity for those citizens with Pre-Settled Status of which there are 2.485 million as of 30 November 2021.”

Read the IMA’s Statement of Facts and Grounds on 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.

Home Office confirms revision of EEA family permit policy

The EEA family permit route enabled an extended family member of an eligible EU, EEA or EFTA citizen to join them or travel with them to the UK for up to six months to work or study or for other purposes. If eligible, the extended family member could then apply to the EU Settlement Scheme in order to stay longer in the UK.

However, EEA family permits were no longer valid for travel to the UK after 30 June 2021. The IMA received complaints that some citizens were having difficulties obtaining a family permit following the closure of the EEA family permit route.

The IMA raised concerns with the Home Office that, were they not already eligible for an EUSS family permit, these citizens were not able to enjoy their rights under the Withdrawal Agreement.

The IMA welcomes the news that the Home Office will be writing to those eligible citizens who had previously been denied an EEA family permit to explain they are now eligible for an EUSS family permit.

The Home Office will also waive the requirement under the EU Settlement Scheme to have been resident in the UK by the end of the transition period for extended family members who are in scope of the EUSS family permit concession. The relevant guidance is now available on the Home Office’s website.

Chief Executive of the IMA, Dr Kathryn Chamberlain said:

“While we are of course pleased that the Home Office has made this concession and will be writing to those citizens they know are affected, we felt it imperative to ensure this revised position and concession was in the public domain as soon as possible.

“We would urge the Home Office to make it very clear these changes have been made by updating their guidance as soon as possible.”

The IMA will continue to monitor and engage with Home Office on EEA family permits and will continue to seek clarity and specificity on the guidance.

IMA Issues Pre-Action Protocol Letter to the Home Office

The IMA considers that the automatic loss of residence status for citizens who do not apply in-time to upgrade from pre-settled status to settled status is a breach of the Withdrawal Agreement and the EEA EFTA Separation Agreement (the Agreements). These concerns have been raised with the Home Office since 6 August, but with no substantive response yet received the IMA feels it has no option but to escalate this issue to the pre-action stage of litigation.

In particular, the IMA is concerned that:

EU citizens who hold pre-settled status must apply again to switch to settled status after five years’ continuous residence in the UK;
That EU citizens face the automatic loss of rights should they fail to apply either for settled status or for further permission to remain in the UK. This means they could lose access to their rights to claim social housing, welfare benefits, and to healthcare which could have a potentially serious impact on their lives.

The IMA remains hopeful it can avoid going to court to resolve its concerns and has asked the Home Office to respond within 14 days.

The IMA was established to ensure public bodies uphold the rights of EU and EEA EFTA citizens living in the UK and Gibraltar and this letter is just one part of its ongoing work to ensure rights are being protected. Other work includes monitoring of welfare benefits, late applications, access to social housing and the process for securing National Insurance numbers and European Health Insurance Cards.

*The pre-action protocol explains the steps the courts would normally expect parties to take before taking legal action. A pre-action protocol letter is a legal letter written in order to try and resolve a dispute before court proceedings are commenced. It is sometimes also referred to as a ‘letter before claim’ or ‘letter before action’.