Home Office policy of refusing to determine thousands of EUSS applications for leave to remain by EU citizens/EEA nationals found to be unlawful

Friday 5 July 2024

Adrian Berry of Garden Court Chambers, led by Jamie Burton KC of Doughty Street Chambers, represented the appellant, instructed by Ellen Fotheringham of Public Interest Law Centre.

See full judgment: R (LK) v. Secretary of State for the Home Department & Independent Monitoring Authority [2024] JR-2021-LON-001727

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The Home Office must consider the individual circumstances of EU citizens/EEA nationals before delaying determination of their EUSS applications pending criminal prosecutions. 

The Upper Tribunal found the Home Office’s policy that delayed the processing of the vast majority of applications for EUSS Settled and Pre-settled Status made by EU citizens/EEA nationals who had pending prosecutions following criminal charges to be unlawful. 

The judgment will apply to almost 20,000 EU citizens/EEA nationals who had their applications for settled status paused. 

The Background  

The applicant is an EU citizen who has lived in the UK for almost 20 years. When Brexit came into effect, he had to apply for Settled Status under the EU Settled Status (EUSS) scheme. 

Yet while he waited, pending criminal charges lead to his EUSS application being ‘paused’ so that he was blocked from accessing his essential rights under the UK’s EU Withdrawal Agreement. The likely penalty for his criminal charge was minor and on conviction and sentencing could never have led to his Settled Status application lawfully being refused under applicable Withdrawal Agreement standards. Time and time again his paused application meant that he couldn’t get the support for which he was eligible. This included housing assistance and universal credit. Without legal representation, there was a strong chance he could have become homeless.  

 The Judgment 

 The Upper Tribunal found that: 

  • The Home Office’s policy to pause EUSS applications because of pending prosecutions has been unlawfully directing Home Office caseworkers in their decision making  
  • The policy has breached the EU law rights of those subject to it  
  • There is a cohort of EU citizens/EEA nationals, like our client, who have had their application paused under this policy but could never have had their application refused on consideration of the criminal penalty following conviction on their pending criminal charge 
  • In order to act lawfully, Home Office decision-makers must consider an applicant’s length of residence, the applicable Withdrawal Agreement standard of protection, and whether a delay is proportionate before deciding to pause an EUSS application
  • The unlawful policy has robbed deserving EU citizens/EEA nationals of ‘security of mind and confidence in future planning’.  

The above content has been reproduced from a Doughty Street Chambers release.

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