An incorrect decision under the EU Settlement Scheme could impact the terms by which EU citizens and their family members are able to reside and access services in the UK after Brexit. Statistics we have retrieved on administrative reviews of Settlement Scheme decisions show that 89.5% of initial decisions reviewed were overturned. In this post, we explore what this figure tells us about the implementation of the scheme.

While receiving an incorrect decision could be rectified by re-applying, for those running into consistent problems with their application an effective redress mechanism is needed. A right of appeal to the immigration tribunal appeal is yet to be legislated for. Judicial review is expensive, inaccessible, and limited to narrow legality claims. So administrative review is the primary mode of redress available for EU Settlement Scheme applicants. 

What is administrative review?

Administrative review is a mechanism whereby a different official from the decision-maker, but within the same department, will review the papers from the initial decision for casework errors. The initial decision can then be changed if there is an error.

Under the Settlement Scheme, administrative reviews may be requested if a decision grants pre-settled status but an applicant believes they qualify for settled status. A review may also be requested where an application is refused on eligibility grounds.

Notably, administrative review is not available against a decision where an application is refused on suitability grounds. This is where the Home Office can refuse an application if there is evidence of serious or persistent offending, or where it is proportional to refuse for non-exercise or misuse of rights in the Citizens Directive (Directive 2004/38) or providing false or misleading information in the application. So far, the Home Office has only reported four of these refusals.  

In contrast to the administrative review system generally run by the Home Office, the administrative review system under the Settlement Scheme allows people to submit further evidence, which will then be considered alongside their original application. An application for administrative review comes with an £80 fee. A refund is provided if the review is successful but not if the decision is overturned on the basis of new evidence submitted.

Administrative review can be beneficial as it reduces costs for the state and generally produces quicker decisions for applicants. But compared to tribunal appeals and judicial reviews, the available evidence on administrative review systems more generally (both in the Home Office and central government) suggests they ultimately have the effect that individuals are significantly less likely to succeed in overturning an adverse immigration decision.

Getting the data on Settlement Scheme reviews

Statistics on administrative reviews for the EU Settlement Scheme have been teased out of the Home Office through several repeat Freedom of Information Act requests. This a necessary technique for getting information on the Scheme due to the underwhelming data publication approach being taken thus far (our fuller analysis of this issue is available here).

As of 12 September 2019, the Home Office had received 451 administrative review requests for Settlement Scheme decisions. More recent figures for administrative reviews have been requested but have been refused by the Home Office.

This 451 figure does appear to be relatively low in relation to the 885,000 decisions which may be eligible for challenge (this being the number of grants of pre-settled status and “other outcomes”, including when an applicant is deemed ineligible to apply). It is also low compared to other immigration decisions: for example, the Home Office received 2,393 administrative review requests in the three-month period between 1 October and 31 December 2016). But this does not necessarily mean that other settlement scheme applications (i.e. those where are a review is not sought) are receiving the correct outcome.

Many may choose to re-apply rather than challenge a decision to avoid an £80 fee, particularly if they wish to submit further evidence. As the Home Office has not released statistics on the number of re-applications, instead opting to count them multiple times in the overall two million Settlement Scheme applications made so far, it is not possible to see how many have taken this route.

Others may not challenge an incorrect decision to grant pre-settled status if:

• they are unable to access further evidence;
• they don’t know how the challenge mechanisms work;
• they are fatigued by the process and reluctantly accept the outcome;
• or they do not realise they have been granted a status with fewer rights.

The ability to track the performance of administrative reviews of EU Settlement Scheme decisions over time is further limited due to the Home Office not publishing data on the process and, for Freedom of Information requests, pulling data from a “live operational database” at a single point in time between a request being lodged and their response within 20 working days. There is therefore no consistent time period for each data set. 

90% of decisions reviewed were overturned

Nevertheless, the statistics published do reveal a significantly higher success rate for administrative reviews of EU Settlement Scheme decisions than other immigration decisions. As of 12 September, of the total 325 administrative reviews that had been decided, 291 (89.5%) resulted in a decision of pre-settled status being overturned and settled status granted.

This success rate is drastically higher than other Home Office administrative reviews, which were recorded in 2015/16 as 8%, falling to 3.4% in 2016/17.

A higher success rate could suggest multiple patterns. It could show that administrative reviews are working much more efficiently. It could also indicate that the automated data checks and initial decision-makers are getting things wrong more frequently.

While it is certainly the case that administrative reviews have been more effective for the EU Settlement Scheme than in other Home Office schemes, this could be attributed to the scope for introducing new evidence for the reviewer to consider. It could therefore be the case that the Home Office is taking accurate initial decisions based on the information it has at the point of the initial decision but new evidence leads to that decision being overturned on review. This would still raise concerns that the initial application process does not inform applicants sufficiently on the ability to submit supplementary evidence and the kinds of evidence required for the Scheme.

Half of overturned decisions could be down to caseworker error

In reality, the high success rate on administrative review is likely driven by a complex combination of factors. But it is clear that the success of EU Settlement Scheme reviews cannot be solely attributable to the ability to provide new evidence. 192 refund requests had been processed by 18th September 2019. Refunds are only available for decisions which are overturned without the reliance on additional evidence — therefore suggesting caseworker error — and when an administrative review is invalid.

Without up-to-date statistics from the Home Office on the number of invalid administrative reviews, it is not possible to determine how many refunds are provided for caseworker errors. The most recent statistics from May 2019 suggest that only 8% of administrative review applications were invalid. Excluding these potential invalid applications, it can be estimated that around 48% of EUSS administrative review decisions have received a refund, suggesting they were overturned without using new evidence.

This is a large portion of the reviews undertaken, although it does not account for those reviews which are eligible for a refund but have yet to be processed, or where a fee is incorrectly not refunded. 

The necessarily tentative nature of the analysis we have presented here partly reflects the Home Office’s inadequate handling of Settlement Scheme data collection and publication. It also reflects another risk of the use of administrative review systems: that they weaken the public accountability of government systems by concealing problems of initial decision-making. 

This article was co-authored by Alice Welsh, Research Fellow at the Public Law Project.