IMA welcomes changes to Home Office guidance on pending prosecutions
The Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) welcomes changes to Home Office guidance on how pending prosecutions affect applications to the EU Settlement Scheme (EUSS).
In the case of Krzysztofik v SSHD (in which the IMA intervened), the Upper Tribunal found the Home Office policy of pausing decision-making on applications to the EUSS where there was a pending prosecution for alleged conduct committed before the end of the transition period on 31 December 2020, and without taking the relevant public policy threshold into consideration, was unlawful.
The Upper Tribunal agreed with the IMA’s submissions on proportionality and held that the policy was inconsistent with the requirements of the Citizens’ Rights Agreements as it led to unwarranted and disproportionate delays to the processing of those EUSS applications.
The Home Office has subsequently updated its guidance on EUSS suitability requirements.
The updated guidance makes it clear to caseworkers a pending prosecution does not prevent them progressing the consideration of the application.
It states: “If the applicant satisfies the eligibility criteria and suitability criteria (setting aside allegations which are the subject of the pending prosecution) leave may be granted.
“If the applicant does not satisfy the eligibility criteria and suitability criteria (setting aside the allegations which are the subject of the pending prosecution) leave should be refused.
“If the applicant is subsequently convicted and given a custodial sentence, the case will be referred to Foreign National Offender Returns Command (FNO RC) through the usual prison referral mechanism. Should FNO RC pursue deportation, a deportation order will invalidate any EUSS leave held under section 5(1) of the Immigration Act 1971.”
We continue to engage with the Home Office in respect of any delays experienced by citizens in receiving a decision on their EUSS application.