Tags: Residency

Citizens’ Rights Watchdog Completes Initial Review Into English Local Authorities For Looked After Children

Local authorities have duties to support, and in certain cases to make, applications to the EU Settlement Scheme (EUSS) for children under their care, as well as to identify those who need to make applications to the EUSS. The IMA is responsible for monitoring the rights of EU and EEA EFTA citizens and their family members in the UK and Gibraltar.

Part of that monitoring has involved assurance reviews for looked after children and care leavers who need to apply to the EUSS, and the procedures that local authorities have in place to monitor those applications.

The IMA wrote to all 151 local authorities in England with mandatory obligations supporting looked after children and care leavers seeking information about three key areas. These are:

  • how authorities identified children and care leavers who need to apply to the EUSS
  • the procedures they have in place for record keeping, and;
  • whether retrospective checks are being carried out which could identify those who may have left care and may not have been identified as eligible to apply to the EUSS.

Each authority’s response to the IMA’s queries on these issues has been categorised as either green, amber or red based on the IMA’s opinion of the quality of responses received.

The IMA has now published the outcome for all nine regional reports for England.

Following the initial findings, the IMA has started conducting individual assurance reviews with all English local authorities to gather additional information over a rolling programme of work.

Local authorities that have had individual assurance reviews undertaken so far have sufficiently demonstrated they are discharging their duties in respect of these vulnerable cohorts, to ensure their rights are protected.

Pam Everett, IMA Director of Operational Delivery said: “Following on from the individual assurance reviews in Wales, the IMA has continued to assess how local authorities in England are supporting children in their care and those who have left care in making applications to the EUSS.

“We now want to further assure ourselves that each authority in England has the correct processes 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.

“We welcome the engagement of local authorities so far and look forward to continue to work with them to improve processes and share best practice.”

You can read all nine regional reports for England in full on the IMA’s website.

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

Further information about the review can be found on the IMA’s website.

Citizens’ Rights’ Watchdog Calls For Resolution On Landmark High Court Case Implementation

The judge ruled in favour of the IMA and clarified that the Withdrawal Agreement residence right of a person with pre-settled status does not expire for failure to make a second application to the scheme. This is provided they continue to meet the conditions for it.

The judgment also found that, irrespective of an application for settled status, those who have lived here for five years and have continued to meet the relevant conditions (as set out in the Agreements), are automatically entitled to permanent residence   rights under the relevant Agreement.

In the IMA’s view, the current Home Office approach of automatically applying a two-year extension to all pre-settled status holders shortly before they approach their current date of expiry does not go far enough to address the first aspect of the High Court’s ruling. This is because it could potentially adversely impact their residency rights.

The IMA is concerned that this  approach may continue to cause challenges for citizens, for example with employment or housing, due to the continued temporary nature of pre settled status being visible on official documents. However, status should not expire in practice providing the person continues to meet the underlying conditions.

The IMA is holding regular meetings with the Home Office to better understand its plans for how the judgment will be implemented. We understand that the Home Office is nearing a final view on proposals that seek to provide practical solutions for citizens. The IMA will continue to promote workable resolutions and monitor the effectiveness of any changes.

Miranda Biddle, Chief Executive of IMA said:

“The IMA is keen to ensure that citizens’ rights are upheld and the court’s ruling is implemented in a manner that provides clarity and practical resolution for citizens.

It is crucial that in implementing the judgment the uncertainties being faced  in relation to citizens’ ability to live, work and raise their families in the UK are addressed and concluded.

The IMA will continue to hold the Home Office to account and urge them to implement the necessary changes when finalised.”

Anyone facing difficulties accessing their rights is encouraged to contact the IMA for support. There are also a number of supporting organisations listed on our website who can assist with EUSS applications. If you would like to share information with the IMA on behalf of EU and EEA EFTA citizens, then please visit www.ima-citizensrights/report-a-complaint

 

Local Authorities reminded to consider all rights to reside within Citizens’ Rights Agreements

This comes after a case in which the IMA intervened was settled recently.

In this instance the Local Authority had refused an application for homelessness assistance to a citizen with pre-settled status within scope of the Withdrawal Agreement. The citizen in question had a derivative right to reside, and so the IMA considered the Local Authority’s refusal of assistance to be unlawful and contrary to the Withdrawal Agreement. In broad terms, a derivative right to reside is one where a citizen’s right of residence within the UK derives from another. Here the right derived from a child in education in the UK. The IMA’s skeleton argument, setting out its full view of this case, is available on the website.

The Local Authority had initially proceeded to defend this appeal. However this case has now settled on the basis that the Local Authority has conceded the first ground of appeal, accepting that the Appellant does have a derivative right to reside in the UK and held this right at the time of an application for homelessness assistance.

The IMA is pleased that the case was settled, with the Local Authority accepting the Appellant’s residence rights, and therefore entitlement to homelessness assistance.

Anyone experiencing difficulties accessing their rights is encouraged to report it via the IMA’s complaints portal.

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.

You can also read more about the work of the IMA and download and share resources such as leaflets about citizens’ rights.

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.

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:

  • 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.

IMA reminds EU citizens to update UK Visas and Immigration accounts to avoid border delays

EU and EEA EFTA citizens living in the UK with pre-settled or settled status will have their digital status automatically recognised at the UK border when they enter, provided they use the same personal details and ID document they used to apply to the EU Settlement Scheme (EUSS), or have added to their UKVI account.

Individuals whose details or ID document have since changed, such as a new passport or ID card, can find information on how to update their details on their UKVI account via GOV.UK. Those who do not update their UKVI account may face further checks at the UK border in order to verify their status.

The IMA is issuing this reminder following complaints from citizens regarding entry to the UK and correspondence from the UK Home Office explaining that EU or EEA EFTA citizens travelling with an ID document that is not registered with their UKVI account may be subject to further checks to confirm their status at the UK border.

Further guidance about entering the UK under the EU Settlement Scheme and EU Settlement Scheme family permit can be found via the Border Force website. Individuals who need help accessing or using the online immigration status services can contact the UKVI Resolution Centre.

The IMA exists to ensure public bodies are upholding and implementing citizens’ rights to travel, work, live, and study in the UK and Gibraltar.

Citizens who feel their rights are not being upheld are encouraged to report a complaint to the IMA via its portal.

Public Bodies Must Uphold Rights of EU Citizens

As the deadline for applying to the EU Settlement Scheme (EUSS) passes the IMA particularly wants to remind public bodies of the need for care in considering the status of citizens who have applied to the EUSS but have not yet received the results of their application.

For example, the IMA is aware of reported issues and inconsistencies with some local authorities warning EU citizens that they will be removed from housing waiting lists if they cannot provide proof of settled status. This is despite the fact that EU citizens awaiting the outcome of their EUSS application should have their rights protected until a decision has been made.

The IMA is, therefore, reminding public bodies that citizens’ rights should be protected until the outcome of applications to the EUSS has been concluded. Home Office statistics as of the end of May show there is a backlog of more than 330,000 applications to the scheme yet to be decided.

These concerns about the treatment of citizens have been raised with the umbrella bodies for local authorities as well as the devolved administrations.

Since the IMA came into being on 31st December 2020 it has heard concerns from citizens in a number of different areas including with applying to the EUSS.

The IMA is in ongoing dialogue with government departments such as the Home Office about issues that affect EU citizens’ rights and works closely with parliaments in the UK and Gibraltar, as well as with advocacy groups, charities and regulatory bodies to raise awareness of its role.

Dr Kathryn Chamberlain, IMA CEO said:

“As the deadline for applications to the EUSS passes it is crucial that all public bodies are aware of what they should and should not be doing in terms of ensuring that citizens from the EU have the confidence to get on with their lives.

“We are, therefore, reminding public bodies of their duty to uphold the rights of citizens and in particular to refrain from making punitive decisions after the end of the grace period in relation to citizens who are waiting for their application to be concluded. We anticipate that public bodies will work closely together to ensure that late applications are treated appropriately with regards to continuation of services.

“If EU citizens feel that their rights have been, or are likely to be, breached they should complain directly to the public body concerned. However, we would also encourage them to report their complaint to us at the IMA to help us identify and address systemic issues. EU citizens can lodge complaints with the IMA through our online portal.”