EUSS Suitability Guidance (following the judgment in the case of Krzysztofik (K) v Secretary of State for the Home Department)
Summary of Information
The IMA considered that the Home Office policy of pausing EU Settlement Scheme application decisions where there was a pending prosecution was incompatible with the Withdrawal Agreement and subsequently intervened in the case of K v SSHD.
The Upper Tribunal found that pausing EUSS applications for a pending prosecution relating to conduct committed before the end of the transition period on 31 December 2020, without considering the relevant public policy threshold, was unlawful. Following the judgment, the Home Office updated its EUSS suitability guidance in September 2024.
The revised guidance makes clear that a pending prosecution does not, by itself, prevent an application from progressing through the decision-making process.
Summary of Actions and Evidence
The IMA engaged with the Home Office to understand how EUSS applications previously placed on hold because of a pending prosecution were being managed following the updated suitability guidance. The IMA requested information on the steps taken to review affected cases and the measures put in place to ensure applications were no longer paused solely on that basis.
The IMA also reviewed complaints and intelligence received since the guidance change took effect to determine whether there was any indication that EUSS applications continued to be placed on hold due to a pending prosecution.
Summary of Decision
Based on the information and evidence reviewed, the IMA is satisfied that the updated EUSS suitability guidance is being applied by the Home Office in line with the Upper Tribunal’s judgment. The IMA has therefore closed the case with no further action at this stage.
Should the IMA receive further information or complaints relating to this issue, they will be assessed and, where appropriate, may inform further action by the IMA. The IMA remains able to take further action on this matter in the future, should this be necessary in accordance with its statutory functions.
