- BY Sonia Lenegan
Home Office policy on delaying consideration of EUSS applications held to be unlawful
The “Pending Prosecutions” section of the EU Settlement Scheme: suitability requirements version 8.0 policy, which provided for applications to be paused where there was a pending prosecution, has been held to be unlawful by the Upper Tribunal. The case is R (Lukasz Krzysztofik) v Secretary of State for the Home Department, JR-2021-LON-001727, with the Independent Monitoring Authority for the Citizens’ Rights Agreements as intervenor.
Background: the policy
A successful application to the EUSS needs to meet the suitability requirements. The Home Office has published guidance on these, which includes a section called “Pending prosecutions”. This provides for applications where “the applicant has a pending prosecution which could lead to a conviction and a refusal on suitability grounds and does not otherwise meet the criteria for referral to [immigration enforcement] in respect of any other offence, you must pause the application until the outcome of the prosecution is known”.
The policy also provided that applications must be held for six months but can be progressed after that where there were no previous convictions, only one pending prosecution and the maximum potential sentence if less than 12 months. This wording was inserted into the policy in version 5, before this it said that decision makers “must consider whether it is reasonable and proportionate for the application to be paused”.
Background: the applicant
The applicant is a Polish national who has lived in the UK since 2006. He applied to the EUSS on 17 September 2020. At this time he was waiting for the outcome of four charges, relating to pre-Brexit conduct. That timing is important as set out in Abdullah & Ors (EEA, deportation appeals, procedure) [2024] UKUT 66 (IAC), which we have written up previously.
Shortly after receiving the application, on 20 September 2020 the Home Office paused the application pending resolution of the criminal proceedings.
Three of the charges were resolved without further action and the applicant pleaded guilty to the fourth one on 11 January 2021. That offence was assault occasioning actual bodily harm and on 3 February 2022 he was sentenced to a custodial sentence of 46 weeks.
The judicial review
The applicant challenged the delay in making a decision on his application for settled status under the EUSS. His application was subsequently decided and refused on 27 May 2022 and his appeal against that refusal was successful on 20 July 2023.
The judicial review also challenged the Home Office policy of pausing consideration of EUSS applications where the applicant had a pending criminal prosecution. The grounds were that the policy did not allow for consideration of individual circumstances and that it fettered discretion.
It was argued that the failure to take the length of a person’s residence into consideration rendered the policy unlawful. Length of a person’s residence is of huge relevance as to the relevant legal threshold that would apply to any potential deportation decision. Therefore, in order to determine whether the impending prosecution would be of any relevance to the application, length of residence should first be taken into account.
The Home Secretary’s position was that “the pause policy enjoys a public interest function by protecting the integrity of the immigration system by ensuring that leave is not granted in circumstances where, by virtue of an individual’s criminality, it ought not to be”. The tribunal rejected this, saying “the policy in its present version extends to alleged conduct that, if proven, is not sufficiently likely to result in a conviction and deportation”.
Upper Tribunal Judge O’Callaghan reiterated the importance of having a decision on an application, stating that “Such status provides more than the ability to work, secure accommodation and, if permitted, secure access to social security benefits and to NHS services. It provides security of mind and confidence in future planning, which is absent when awaiting a decision on an application under the EUSS.”
He went on to allow the judicial review on the following basis:
101. Absent from the policy is the requirement for a decision-maker to consider the application of the Union principle of proportionality, which may require them to proceed and determine the application in a given case. Further, it omits any instruction to consider the Union law threshold test applicable to the case in hand, before deciding to stay consideration. A decision-maker should properly be informed that the threshold test may require them to proceed and determine the application in a given test. I agree with Mr Burton’s succinct observation that the policy is blind to one side of the legal question.
102. For the reasons addressed above, the present policy fails to require a decision- maker to consider the following before pausing an EUSS application. Firstly, to ascertain whether the applicant was exercising EU rights in the United Kingdom at 11p.m. on 31 December 2020, acquired permanent residence and so the serious grounds threshold applies, and whether they have been lawfully resident for ten years in total, with the imperative grounds threshold applying. Having secured this knowledge, a decision-maker is also required to know whether, given the applicable threshold, the applicant could be refused leave to remain or settlement if convicted.
The decision to pause consideration of the applicant’s EUSS application was also held to be unlawful as it was in breach of the Withdrawal Agreement.
Conclusion
The Home Secretary has agreed to publish a replacement policy within three months and the order quashing the current guidance has been stayed until then. Following that, all applications that have been paused will be reviewed as soon as possible. Permission to appeal to the Court of Appeal was refused by the Upper Tribunal.
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