Date Legislation considered: 09 August 2023 (initial consideration)
Date Legislation in Force: 09 August 2023
Potential Right(s) Affected: Residency
What does the legislation do?
The Statement of Changes amends the Immigration Rules (“the Rules”) which are used to regulate people’s entry to, and stay in, the United Kingdom.
The reader is referred to the IMA’s previous report which sets out all relevant changes. The changes with which this updated report is concerned are repeated below.
Validity Requirements – Late Applications and Illegal Entrants
Amendments are made to Appendix EU to make the requirement – under the Citizens’ Rights Agreements – to show reasonable grounds for a late application to the EUSS, a validity rather than an eligibility requirement. The Explanatory Memorandum states that “consistent with the Agreements, this will enable the Secretary of State to consider whether there are reasonable grounds for a late application as a preliminary issue, before going on to consider whether a valid application meets the relevant eligibility and suitability requirements.”
The change will apply to applications made on or after 9 August 2023.
Similarly, in-country applications made on or after 9 August 2023 as a ‘joining family member’ made by an ‘illegal entrant’ (as defined in section 33(1) of the Immigration Act 1971) will be rejected as invalid.
Broadly speaking, joining family members are those existing close family members of EU and EEA EFTA nationals resident in the UK by 31 December 2020 who were living overseas then.
At the time of the IMA’s initial report, it was acknowledged that the Agreements allow for the Home Office to determine whether someone has reasonable grounds for making their application to the EUSS out of time, before accepting it as valid. However, one consequence is that a decision not to accept the grounds as reasonable is only open to challenge by way of judicial review. There is no appeal mechanism. The report noted that the IMA had raised this with the Home Office and was continuing to engage with them on that issue and on its similar concerns in respect of the changes which have been made in respect of in-country applications from joining family members who are illegal entrants.
Article 18(1)(r) of the Withdrawal Agreement and Article 17(1)(r) of the EEA EFTA Separation Agreement provide that an applicant to the EUSS “shall have access to judicial and, where appropriate, administrative redress procedures in the host state against any decision refusing to grant the residence status”.
Key to this provision is that it only applies to applicants. Until an application is accepted as valid by the Home Office, it is not an application and therefore the protections in Article 18 WA/Article 17 SA do not apply.
In the event that an application is rejected on grounds that it is not valid, there are two options available to a citizen. They can either make another application to the EUSS addressing the reason the previous application was rejected as invalid (e.g. by providing sufficient evidence of reasonable grounds for their delay in applying) or apply for judicial review of the rejection decision.
The IMA does not raise any issues in respect of the compatibility of the legislative changes with the Agreements, but notes that Home Office guidance, states at page 39 that “where a person has already made a late application to the EU Settlement Scheme and this application has been refused or rejected (which may have been because they were not considered to have reasonable grounds for their delay in making their application), then they will not normally be able to establish that there are reasonable grounds for them to make a further late application to the scheme” [our emphasis].
Given that challenging a validity decision is limited to judicial review, it is important that any decision-making in respect of validity is robust. The IMA is continuing to engage with the Home Office to understand its processes in respect of consideration of reasonable grounds as part of the IMA’s ongoing work.
Any citizen experiencing difficulties in exercising their rights is encouraged to report a complaint through the IMA Portal. Further information about the IMA and guidance on how to report complaints can also be found on the Website.