Lack of appeal against rejection of late EUSS applications does not breach Withdrawal Agreement

The High Court has dismissed a challenge to changes made to late applications to the EU Settlement Scheme which removed the right to appeal where it is not accepted that the applicant had a good reason for applying late (i.e. where the application is rejected as invalid, rather than being accepted as valid and then refused). The judicial review was brought by Here for Good, a charity providing free immigration advice on the EU Settlement Scheme. The case is R (Here for Good) v Secretary of State for the Home Department [2024] EWHC 2817 (Admin).

Background

Evidence given by a Home Office official was that by January 2023 there were concerns that “spurious and unmeritorious” late applications were being made under Appendix EU. This was apparently so that people could get a certification of application which would then allow them to work and claim public funds pending the outcome of the application (in line with Article 18(3) of the Withdrawal Agreement). It was decided that a two stage approach was permitted under Article 18(1)(d) and so changes were made to Appendix EU from 9 August 2023.

Before the changes made on 9 August 2023, where an application was made after 30 June 2021 there was no requirement for there to be a “good reason” for the late application in order for an application to be valid. The need for there to have reasonable grounds for making a late application was instead found in the eligibility requirements.

This meant that applications would be accepted as valid if they met the other validity requirements, and if refused because it was not accepted that they had reasonable grounds for applying late, the applicant would be granted a right of appeal. From 9 August 2023, where an applicant could not satisfy a Home Office decision maker that there was a “good reason” for the late application, the application would be rejected as invalid, which is a decision that does not generate a right of appeal.

An invalidity decision can be subject to judicial review but this is limited to looking at whether there has been an error of law rather than the merits of the decision, which would include consideration of the facts as well as a proportionality assessment.

The judicial review

There were three grounds to the challenge. The first was that the failure to provide a right of appeal where a late application had been made was a breach of Article 18(1)(r) of the Withdrawal Agreement which says that:

the applicant shall have access to judicial and, where appropriate, administrative redress procedures in the host State against any decision refusing to grant the residence status. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate.

This ground centred on whether or not a two stage approach was actually permitted under Article 18. The Home Secretary maintained that it was, “based upon the natural and clear meaning of the words in Article 18(1)(d) of the Withdrawal Agreement which plainly contemplate two discrete stages”. Article 18(1)(d) states:

where the deadline for submitting the application referred to in point (b) is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and shall allow those persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline

The second ground was that in the alternative, the failure to provide a right of appeal in these circumstances was a breach of Article 21 of the Withdrawal Agreement which provides for safeguards and a right of appeal. It was argued that a decision to reject a late application is a decision that restricts the applicant’s right of residence and so comes within the scope of Article 21. This was resisted by the Home Secretary on a similar basis to the first ground.

The third ground of challenge was that the failure to provide a late application with a right of appeal is a breach of Article 47 of the Charter of Fundamental Right of the European Union which provides for the right to an effective remedy and to a fair trial. The claimant argued that Article 4(3) of the Withdrawal Agreement allowed reliance on EU law:

on the basis that the situation of a person who comes within the personal scope of the Withdrawal Agreement (irrespective of whether they have made a late application for residence status) is not a purely domestic law situation but one which falls within the scope of EU law.

The Home Secretary’s position was that the Charter was not engaged “because the question does not involve concepts or provisions of EU law in the interpretation or application of these provisions of the Withdrawal Agreement”. This was because Article 18(1) had introduced a completely new process that did not exist under EU law and was different to the EU law principles of free movement.

The High Court’s decision

The High Court agreed with the Home Secretary that a literal reading of Article 18 allows for the two stage approach introduced into the immigration rules on 9 August 2023. The conclusion was that:

A person who is outside the deadline for making an application under the conditions of the new scheme is not an applicant until they have been permitted to make their application and therefore the procedural safeguards under Article 18(1)(r) are not available to them.

The second ground of challenge was also rejected, with the court saying that the existence of an application is needed in order to rely on Article 21. As the validity decision is made before an application is accepted, Article 21 therefore cannot apply.

On the third ground, the court distinguished this situation from that of the cases the parties sought to rely on (CG (C-709/20) by the claimant and AT v Secretary of State for Work and Pensions [2024] KB 633; [2023] EWCA Civ 1307 by the defendant). The High Court said that “it is of significance to note the important distinction” as CG and AT had made timely applications, been granted pre-settled status and had rights of residence under Article 13 of the Withdrawal Agreement, which was not the case here.

The court said that instead:

this case is concerned with the circumstances of a person who has no such status and who requires permission to make an application for the new residence status which is a creature of the Withdrawal Agreement under Article 18 and unrelated to EU law provisions relating to the rights of citizens.

The court also rejected this ground of challenge saying that it could not accept that the Charter applied in these circumstances, or that it was a breach to fail to provide a right of appeal.

Conclusion

Ultimately this entire situation seems to all come down to Home Office delays – the only reason it was ever possible for a person to “abuse” the certificate of application system is because applications were not being dealt with in a timely manner. We wait to see if this case will proceed any further, in the meantime the remedy for those who have a late application rejected remains judicial review.