A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more
The settled status scheme for EU citizens to stay in the UK after Brexit is about to complete its last test phase and will be fully open on 30 March 2019. We have talked about how the Settlement Scheme operates here: How to apply for “settled status” for EU citizens.
The government says that by the end of February 2019 around 150,000 people had applied and slightly over 70% have been granted settled status.
The remaining applicants have been granted pre-settled status and none have been refused so far. This data is encouraging and in keeping with the Home Office statement of intent published in June 2018, which said that:
Throughout, we will be looking to grant, not for reasons to refuse, and caseworkers will be able to exercise discretion in favour of applicants where appropriate, to minimise administrative burdens.
Leaving aside the fact that this statement implies that other non-EU immigration decisions are probably taken with refusal in mind (hostile environment, anyone?), one wonders whether this rose-tinted view will continue once the UK is out of the EU.
Although nobody has been refused so far, it is not realistically possible that settled status will be granted to everybody who applies. Even of the 150,000 applications received so far, around 15,000 have not yet been decided. At some stage, the Home Office will start to turn people down. This article describes how to challenge a refusal of settled or pre-settled status.
Pre-decision assistance
For the time being, it seems that immigration caseworkers are indeed contacting applicants via email if they are not satisfied that the information and evidence provided with the application is sufficient for a grant of leave.
Therefore, should you be missing from government tax and benefit databases and fail to upload sufficient documents to support your case, you will probably receive an email from the Home Office asking for additional paperwork to cover specific periods of time where evidence is lacking.
For example, someone I know whom we will call Jane has recently been asked to provide evidence of residence for a period of 18 months, on the basis that the automatic checks carried out by the Home Office could not confirm that she was in the UK during that period.
[application]
In this particular case, Jane was baffled by the request, because she had already uploaded bank statements which covered those months. After panicking and wondering what else she could send, Jane simply re-submitted the same bank statements as an attachment to the email she sent to the Home Office in response to its request, explaining that the evidence had already been uploaded. I am pleased to report that Jane was promptly granted settled status. Needless to say, no “sorry-we-completely-missed-the-statements-the-first-time-you-sent-them” email was ever received.
This scenario shows that the decision-maker had overlooked evidence already submitted, which is not good, but the fact that Jane was contacted meant that a positive result was achieved. In other areas of the immigration system an error of the caseworker would have probably resulted in a refusal, or in an otherwise wrong decision.
Grant of incorrect status
According to the Home Office data that we mentioned earlier, no application has been refused up to the end of February 2019. However, there is no information on how many people who thought they were eligible for settled status (having lived here for five years or more) were instead offered pre-settled status (for those here less than five years), and therefore received a wrong decision.
Let’s see how this could happen:
Example
Jabba is an Italian national. He has been living in the UK for five years. For the first nine months he did a couple of short English language courses and lived at a friend’s house. He then opened a business which he has been running since.
When Jabba applied for settled status, the Home Office’s automatic checks could not confirm Jabba’s residence in the UK for five continuous years, because Jabba does not have a national insurance number.
Therefore Jabba was asked to submit additional documents.
He provided evidence of his business but did not have any papers for the first nine months of his stay. He asked for confirmation of attendance from his language school but did not receive anything.
Consequently, Jabba was granted pre-settled status and not settled status.
What remedies are available to someone in Jabba’s situation? And what can be done if someone is refused status outright?
At the moment, in case of a refusal of settled or pre-settled status it is possible to submit a new application or challenge the decision by an “administrative review”.
New application
EU nationals and their family members who are resident in the UK before the “cut off” date, will have until the deadline of 30 June 2021 (in case of a deal) or 31 December 2020 (in case of a no deal) to apply for permission to remain in the UK.
These timescales are uncertain. The “cut-off date” is supposed to be 31 December 2020 in case of a deal and 29 March 2019 in case of a no deal, or possibly some other date in case the UK gets an extension of time to leave the EU.
In any event, until at least December 2020, if you receive a refusal of settled or pre-settled status does not mean that you become “illegal” or have to leave the country. A new application can be submitted at any point before the deadline.
It may be easier to make a new application than challenging a refusal if the first application lacked the required evidence or if you made a mistake in your application.
In our example, if — after receiving his pre-settled status — Jabba finally gets a letter from his English school, confirming his presence in the UK for those nine months where he had no other proof, he can easily submit a new application for settled status.
If instead the Home Office’s decision is incorrect, it is possible to challenge an incorrect decision by administrative review.
Administrative review
You can ask the Home Office to review their decision if the application has been refused outright or if pre-settled status is granted instead of settled status. This is different to asking your caseworker to look at the evidence again before the decision has been taken, as in Jane’s example. Usually a different person will be looking at your case, after a decision has been made.
It is not possible to apply for admin review if the Home Office refuses the application because you are going to be, or have been, removed, deported or excluded from the UK. These circumstances apply if you have committed a serious criminal offence, and you would know if you fall in these categories.
Unlike the application itself, which is free, there is a fee payable for the admin review of £80 for each applicant. This fee will be refunded if the review is successful.
If more than one applicant has been refused, each must send a separate admin review form and pay a separate fee.
The admin review process is well-known to non-EU applicants who are refused under various immigration categories. It is not always an effective remedy as its scope is quite limited. It is there to correct a caseworker’s human error and not much more, and the general rule is that no new evidence can be submitted.
This is not true in EU cases, where it is possible to submit new evidence.
Also, the Home Office “may” (but don’t “have to”) contact you after the admin review has been sent, if they need further information before deciding whether to change their decision.
If your admin review is successful, your case will be decided again. Ideally it will be decided in your favour this time, although it is possible for the decision to be “remade” but still result in a refusal for different reasons. If it is refused for different reasons, you can submit a new admin review. However, if the decision to refuse is maintained, you cannot challenge it again with another admin review. The refusal letter should tell you which remedy you have.
Going back to Jane’s example, if the caseworker had not contacted her to ask for more evidence before deciding her case, Jane would have probably ended up with pre-settled instead of settled status.
At this point, she could have applied for administrative review by completing the online form and explaining that the decision was wrong because she had already submitted bank statements for the relevant period with her initial application.
Most likely Jane’s admin review would have succeeded, because it would have been easy for the Home Office employee in charge of the admin review, to check that Jane had indeed sent documents to cover the entire five years period of residence in the UK.
In this case, Jane’s decision would have been reversed, she would have been granted settled status and the fee paid for the admin review would have been refunded too.
Judicial review
What happens if you are not happy with the outcome of the admin review?
As explained above, at the moment the easiest thing to do is to submit a new application. But after the deadline (whenever this is going to be), if you are refused permission to stay in the UK you will be considered an “overstayer”, meaning that you are no longer legally present in the UK.
This is a very serious consequence, because people without permission to stay can be removed. Therefore, if you think the Home Office wrongly decided your application and wrongly maintained their decision in the admin review, you may want to take this further.
How can you do this?
One option is called judicial review. This involves a judge checking the Home Office decision. This process is called judicial review. It is complex and quite expensive, and it is advisable to have the support of a lawyer specialised in immigration rather than going solo.
[application]
Before sending your judicial review application to the Upper Tribunal (Immigration and Asylum Chamber) you need to write to a specific department of the Home Office to give them the opportunity to review their decision. This part of the process is called “pre action protocol”.
If the Home Office does not change its mind in its response to your pre action letter, you can lodge a judicial review.
We are not looking at this process in any detail in this post, as it really is unlikely that you would want to try a judicial review without a lawyer to help.
Right of appeal
It appears that if the UK leaves the EU with a deal, refusals of settled or pre-settled status will attract a right of appeal to an immigration judge. An immigration appeal is generally seen as the best way to challenge a Home Office decision: it is more effective than an administrative review and more accessible than a judicial review.
A right of appeal means that if the application is refused you will have to fill a form and send it by post, fax or email to the First-tier Tribunal (Immigration and Asylum Chamber), together with reasons why you are appealing (the “grounds of appeal”) and a fee of £140 if you want your appeal to be decided at an oral hearing, or £80 if you want a decision “on the papers”. An oral hearing means that the judge would hear from you in person and a decision “on the papers” means that you would send the evidence in writing only.
This fee may be refunded if you are successful at your appeal.
It is usually better to choose an oral hearing, where you can explain to the judge the reasons why you believe the decision was wrong.
The appeal procedure has the following steps: you send your appeal form and enclosed documents within 14 days from the date of the Home Office decision. You will then get a letter from the tribunal telling you a date for your hearing.
Before the hearing both you and the Home Office will send a bundle of documents in support of your case to the tribunal and to each other.
A hearing may take place several months after you send your appeal.
At the hearing the judge will listen to you and to the Home Office’s representative and make a decision. Decisions are not usually given during the hearing but you should receive it in the post within four weeks.
The procedure may seem straightforward, but the arguments in front of the judge are usually technical and it is best to have a representative to assist you in this process.
At the moment it is not clear if there will be a right of appeal or not to challenge refusals of settled and pre-settled status.
You may be able to appeal the decision if you apply after 29 March 2019. This is still subject to approval by Parliament.
This probably refers to Parliament approving the government’s Brexit deal, which has twice been rejected. The deal 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 reference to “judicial… redress procedures” should mean an appeal to the tribunal.
But given the Brexit chaos, we will have to wait and see. A right of appeal would better protect the rights of EU citizens in the UK against incorrect decisions, compared to the admin review process which is more limited in its scope.
Gabriella Bettiga is the Director of MGBe Legal. She is accredited as an advanced caseworker with the Law Society and OISC Level 3. Gabriella is experienced in personal and business immigration, EUSS applications, appeals and nationality law. She runs training courses, including with ILPA and the Law Society and is a member of the Tribunal Procedure Committee.
