In 2019-21 PILC supported hundreds of EU citizens and their family members to apply to the EU Settlement Scheme (EUSS). We’ve continued to monitor the scheme post-deadline, assisting clients to challenge delays and refusals and access proof of their immigration status through the Home Office’s ‘view and prove’ portal.
As we and others predicted, the government’s refusal to issue physical proof of status has had disastrous results for some of the poorest EU citizens living in the UK. In many cases, including where homeless people need to prove their status to access vital social assistance, the consequences are still unfolding.
I’ve assisted over 700 homeless and insecurely housed EU citizens and qualifying family members with EU Settlement Scheme applications. Unfortunately, getting pre-settled or settled status for these clients often isn’t the end of the story in terms of securing their rights to housing and welfare support after Brexit.
The people I support are at high risk of homelessness, including rough sleeping, and other forms of social exclusion. Many lack basic computer literacy and access to technology, while others speak little or no English.
My clients therefore find it much harder than the average person to navigate the intricacies of digital bureaucracy. I’d estimate that only 10-15% would be able to use the EUSS digital portal without help from me or a friend or family member.
Meanwhile, despite some improvement over the past year, many local-authority housing officers and charity support workers still seem to be unclear about how to check an EU citizen’s immigration status using the online system. This is leading to vulnerable individuals missing out on vital welfare support and, in some cases, being trapped in destitution
Tales from my caseload
BW, an Estonian citizen, was referred to me for assistance with a settled status application through the Greater London Authority’s scheme for rough sleepers accommodated on an emergency basis during Covid-19. During our first meeting, I went to the EUSS phone app to start BW’s application, only to discover that the app had already been used to apply for settled status.
When we called the Settlement Resolution Centre we found out that BW had had settled status for a year. Neither the client nor the staff in in her emergency accommodation knew that her immigration status had been resolved and that BW was therefore eligible to apply for mainstream housing support.
In another case, AZ—a Polish national—submitted an EUSS application and was granted settled status two days later. However, she missed the email in her inbox and so didn’t realise her application had been successful. AZ therefore failed to include proof of settled status in her submissions when applying for Universal Credit (UC). As a result, she was deemed not to have a qualifying right to reside and her UC application was refused. AZ was left without benefits for six months and became destitute during this period.
‘Can I use your email address?’
In other cases, we are finding that people’s immigration status is showing up incorrectly on the Home Office’s system as the result of multiple applications being submitted. Last year I was contacted by a local authority about a client, CT, who was living in their temporary accommodation (TA). CT needed proof of settled status in order to remain in her TA and access benefits, but did not know how to access this proof.
When I tried to help CT generate a ‘share code’ to prove her status, her online status came up as ‘Certificate of Application’ rather than ‘Settled Status’. Upon investigation, it emerged that a support organisation had submitted two EUSS applications on her behalf. One of these applications had been granted, but the other was still listed as ‘outstanding’. CT was advised to withdraw the outstanding application, which I assisted her to do, but three months later her application was still listed on the system as ‘outstanding’, despite several calls to the Home Office.
There are also issues with people being unable to prove their immigration status because they can’t access the online system. While supporting DS, a Polish national, with his housing and welfare issues, I tried to help him log into his account to generate proof of his settled status. However, we were unable to do so as the email address linked to the account was the private email of the person who had originally helped DS apply to the EUSS. DS had also lost access to the mobile number linked to his account. He was eventually able to recover his account but only after weeks of delay.
Not knowing how to use ‘view and prove’ is also making it harder for some EU citizens to find and retain employment. I was recently contacted by two Polish clients, who told me that employment agencies were refusing to consider them for jobs. Upon investigation, I discovered that both had been asked for a ‘share code’ and didn’t know how to provide one.
In another instance I assisted a Polish client, GN, who has complex needs, to submit a late EUSS application. GN doesn’t speak English and hasn’t seen his allocated social worker for two years.
When GN was granted settled status, I offered to set up an email address for him so he could keep track of his status. But he didn’t feel able to manage proving his immigration status on his own—and asked if I could give my work email address instead. I had to say no, explaining that he will need access to his status for the rest of his life. It seems unlikely that GN will be able to prove his status when he needs to.
‘A disaster to begin with’
A physical ID wouldn’t have precluded all of these issues. It’s unfortunately extremely common for rough sleepers to lose personal items such as phones and identity documents while on the streets, or to have these items stolen.
This is one reason why making access to services and social assistance dependent on a person’s immigration status is a disaster to begin with.
But the simplicity of a physical ID would have helped. Apart from anything else, it’s (unfortunately!) a system that people are used to and understand. A digital-only system further entrenches the kind of structural inequality that already renders people with lower levels of English, digital literacy and social capital less likely to access their rights.
The bureaucratic issues I’ve described in this blog usually don’t make headlines, not least because they’re fairly boring to read and write about. But the effects on people’s lives are real and—as in the Windrush Scandal—potentially catastrophic.
In a well-functioning democracy those in power would work that to ensure the basics of life, including housing and a decent standard of living, were easily accessible by everyone. (This is the vision we outline in our 2021 research report on the rights of homeless EU citizens after Brexit.) By contrast, and as JL, a PILC client, puts it, ‘[t]his system was created for people with easy lives’.
We’re in the High Court today for a hearing on a judicial-review challenge our client is bringing against Network Homes.
The challenge relates to the housing association’s refusal to allow T, a domestic abuse survivor, to move to new accommodation where she and her children will be safe. The court will also consider in what circumstances judicial review challenges can be brought against housing associations.
In the latest in our series of Q&As on PILC legal cases, we outline the basis for the challenge and explore the wider issues raised by our client’s case.
What’s the issue?
T lives with her children in a flat that she rents from the housing association Network Homes. T’s ex-partner was physically and emotionally abusive both during and after their relationship and continues to present a risk to T and her children.
In early 2021 T applied for a management transfer that would allow her to move to new accommodation where she and her children would be safe. (A management transfer is when a local authority or housing association allows a tenant to transfer to new accommodation because of exceptional circumstances.)
In July Network Homes refused to grant T’s request.
Why is this a problem?
T has bravely taken steps to protect herself and her children from further abuse by engaging with domestic abuse charities, seeking civil protective orders and now by requesting a move. Network Homes’ refusal to grant her a management transfer means she and her children remain at risk from her ex-partner.
The housing association’s own policy states that the ‘exceptional circumstances’ that might lead to a request for a management transfer being granted include ‘[where] there is a severe or immediate risk to life or personal safety of a […] resident because of domestic violence, harassment, hate crime, safeguarding issues or [if they become the] victim of a serious crime.’
But they have said that the domestic abuse in T’s case does not meet their threshold, outlined in a sub-policy, of constituting a ‘threat to life and limb’. They have suggested she could instead seek a civil injunction against the perpetrator (which she has done) and report any new incidents of abuse to the police.
Are other people experiencing this same problem?
Yes. Councils and housing associations across London are imposing excessively high thresholds when it comes to survivors’ access to management transfers. This is despite the passage of the Domestic Abuse Act 2021, which provides a statutory definition of domestic abuse going beyond physical violence and was designed to make it easier for survivors to retain secure tenancies.
What are the legal grounds of our challenge?
We are arguing that Network Homes’s decision to refuse our client’s application for a management transfer on the basis that ‘she was unable to provide any evidence of threats to life or limb’ is unlawful because it takes an excessively restrictive view of domestic abuse, limiting it to acts of physical violence. We say that the housing association’s decision goes against its own published policy.
Network Homes have claimed that T ‘could approach the police or local authority to take more immediate and effective action’ as an alternative to the housing association moving her to new accommodation.But when T did approach her local authority, it confirmed that it supported her application for a management transfer. There was no suggestion that the council could or would accommodate her instead.
In our view, expecting survivors to approach their local authority places them in the invidious position of having to choose between their current stable accommodation and taking their chances with whatever (likely precarious) accommodation the council may provide.
Finally, Network Homes’ sub-policy requires domestic abuse cited in support of an application for a management transfer to have been reported to the police or a MARAC. We are arguing that this is both irrational and indirectly discriminatory.
It is irrational, in our view, because of the widely acknowledged fact that many survivors do not report abuse to the police or other public authorities. Therefore, the absence of a police or MARAC report does not indicate an absence of risk.
It is discriminatory, we say, because women are disproportionately likely to face domestic abuse and abuse is often not reported. Therefore, whilst it may be rational to require evidence from the police or other relevant authorities when considering applications for transfers not based on domestic abuse, the requirement places survivors of domestic abuse at an unfair disadvantage.
What are the wider issues raised by this challenge?
It is our view that housing associations fulfil a public function by providing social housing. They receive public funding in order to do so. As such, the safety of domestic abuse survivors should be paramount in the decisions they take.
Social housing providers should not be taking so narrow a view of domestic abuse as to grant the vital safety measure of a management transfer only to survivors who can prove they have experienced a ‘threat to life or limb’.
Domestic abuse survivors seek management transfers in order to remain safe whilst retaining security of tenure. The message Network Homes’ decision in this case sends to survivors is that they should either seek homelessness assistance from the local authority, move into the private sector, or remain in an unsafe home. All of these options are likely to result in reduced safety and security for survivors and their children.
From the decision in a case known as Weaver, the relevant question is whether the act under scrutiny is a private act. To determine that, it will be necessary to examine the nature of the act in the context of the body’s activities as a whole.
We are arguing that Network Homes’s decision in this case, and its policies relating to transfers, are amenable to judicial review. We do not believe that a decision concerning the transfer of a social housing tenancy can be a private act.
Please check back for updates about this case in the coming weeks.
In November we issued a claim for permission to apply for judicial review of the Home Office’s delay in processing the application for settled status of an EU citizen facing pending criminal charges.
In the second in our series of Q&As on PILC legal cases, we outline the basis for the challenge and explore the wider issues raised by this case.
What’s the issue?
Our client, F, is a Polish citizen who has lived in the UK since 2006. He applied for settled status in September 2020 but has not yet received a decision on his application.
F has been told that his application has been stayed (a legal term meaning ‘put on hold’) because he is facing criminal charges. The Home Office say F will not receive a decision on his settled status application until there is an outcome in the criminal proceedings.
Why is this a problem?
The criminal charges F faces are highly unlikely to result in a custodial sentence or deportation action. Having lived in the UK for fifteen years, he meets the criteria for settled status.
F suffers from mental health difficulties and alcohol-addiction issues after experiencing significant trauma. These challenges have made it difficult for him to work and have contributed towards him becoming homeless in the past. They have also had a bearing on his contact with the criminal justice system.
Yet F is being prevented from regularising his immigration status. As a result he has been unable to claim welfare benefits or secure housing assistance.
The Home Office’s policy has effected trapped F in destitution.
What are the legal grounds of our challenge?
We are arguing that the Home Office policy which has caused F’s application to be put on hold is unlawful.
Previous versions of the policy directed Home Office caseworkers to consider whether it was ‘reasonable and proportionate’ to delay decisions on applications in cases where applicants face pending criminal charges. However, this discretion has been removed in recent versions and it is now mandatory for applications such as F’s to be delayed, even where delay will cause serious harm.
We say that inflexibility of the current version of the policy is unlawful, and that it breaches the United Kingdom’s obligations under the Withdrawal Agreement.
We are also arguing that the Home Office has failed to consider F’s application for settled status in a reasonable time frame. The standard time frame for considering EU Settlement Scheme applications (EUSS) is five working days or no longer than a month. Yet F has been waiting for more than a year.
Moreover, in view of the nature of the criminal charges and the length of time the criminal proceedings are taking, we believe it is unreasonable for the Home Office to pause consideration of F’s application. Finally, we are also arguing that the delay has directly resulted in the hardship to F, which amounts to a violation of his rights under Article 3 and Article 8 of the European Convention on Human Rights.
Are other people experiencing the same issues?
Our partner organisations report that other vulnerable EU citizens are experiencing long delays (of over six months and in some cases well over a year) in the processing of their EUSS applications.
These delays are causing uncertainty about people’s rights and entitlements. Some applicants are struggling to access benefits they should be entitled to. Others have not been able to obtain valid certificates of application that would allow them to continue to prove their right to work pending a decision.
A significant number of those left in limbo have disabilities or other complex needs. In some cases support organisations and even MPs have written to the Home Office asking for decisions to be expedited—usually to no avail. (Both individuals and support organisations report difficulties contacting the Home Office.)
Many (though not all) of those experiencing EUSS delays have had their cases put on hold either because they have a criminal record or because they are facing criminal charges. The charges or convictions concerned frequently relate to low-level offences linked to poverty and addiction.
Applicants report distress and anxiety as a result of the delays. At least one has been denied the opportunity to study at university because they could not prove their eligibility for student finance.
What wider issues does this challenge raise?
The Home Office’s policy of staying EUSS applications where there is a pending prosecution benefits nobody.
As PILC solicitor Ellen Fotheringham puts it: ‘Our client, who has lived in the UK for over 15 years, is on the verge of street homelessness as a result of this policy. It is clear that despite countless warnings no lessons have been learned by this government from the Windrush Scandal, with EU citizens now being exposed to the same devastating uncertainty about their rights.’
There is another an important principle at play in this case: a person’s right to remain should not depend on whether they have been charged with or convicted of a criminal offence.
Over 11 million people in the UK have a criminal record. There is a strong link between poverty (and other forms of structural injustice) and having a criminal conviction. Those who are racialised as non-white and those from a migrant background are disproportionately likely to have a criminal record despite people from such groups not being more likely to commit crime.
Stopping people from regularising their immigration status due to a pending prosecution is just one instance of a trend through which rights that should be universal (such as a person’s right to live in the country they call home) are increasingly being differentiated. This means some people are accorded those rights unconditionally, while others (usually members of marginalised groups) may be denied them in certain circumstances.
Today sees the launch of the Domestic Abuse and Housing Forum (DAHF), created by PILC in response to the increasing obstacles domestic abuse survivors face when seeking housing support from local authorities.
In our latest blog, legal caseworker Isabella Mulholland explains what the forum will do and why it’s needed.
For the last three years, I’ve been working with domestic abuse survivors to support them to access safe housing. Before coming to PILC as a legal caseworker, I was a homelessness advocate worker in a winter night shelter. In both roles I’ve been struck by the multiple barriers survivors must overcome in order to assert their basic right to a safe and suitable home.
When survivors flee, they are at their most vulnerable. Yet when they seek help from local authorities at this crucial time, housing officers routinely provide inaccurate information about their rights and options. This deliberate (and often unlawful) gatekeeping is a systemic problem across local authorities and spans both homelessness and longer-term accommodation provision.
The Domestic Abuse Act 2021 contains a number of provisions that may help survivors (we wrote a briefing about the act earlier this year), but it will not address the deep-rooted culture of disbelief and gatekeeping that exists in local authorities. It will also do nothing to support those with no recourse to public funds (NRPF), who remain barred from access to local authority housing.
Moreover, lawyers are often unaware of the daily obstacles survivors face when trying to access housing support, while frontline workers often struggle to find legal advice or representation. The few lawyers working in the area are inundated with cases.
We hope the new Domestic Abuse and Housing Forum (DAHF) will help tackle some of these issues. Through the forum we want to create a network of frontline DV workers, homelessness advice workers, housing and public lawyers and campaigners who will support one another to tackle local authority gatekeeping in cases of domestic abuse.
DAHF will allow domestic abuse advocates and other frontliners to access second-tier legal advice on their cases and refer their clients for formal legal representation. It will also be a space where updates and resources can be shared.
Quarterly meetings will see DV workers, campaigners and lawyers come together to discuss, and hopefully tackle, the systemic barriers facing survivors who need support from their local authority.
DAHF will only be as strong as its membership. For the forum to be successful, it will need the right mix of frontline workers and campaigners supporting survivors and lawyers who can take on legal cases.
That’s why we’re asking our friends and partners to share information about DAHF as widely as possible, particularly among housing and public lawyers, and in advice and legal aid ‘deserts’. In many parts of the country there are no housing legal aid providers, and we hope the new forum will help frontliners in those areas access robust legal support.
Domestic abuse survivors should not have to face constant barriers when seeking a safe home. We hope that by pooling our resources, we will be better able to tackle the unjust practices that currently prevail across many local authorities.
We will be providing updates on the activities of the forum throughout 2022. To join DAHF or for more information, please email firstname.lastname@example.org
The Judicial Review and Courts Bill has been slowly making its way through Parliament since July. In our latest blog, senior solicitor Paul Heron looks at the first two clauses in the bill and explains why they should be of concern to lawyers and social-justice campaigners.
(You can read the government’s Explanatory Note about the bill here, and check what stage the bill is at here.)
Judicial review is the legal procedure by which the courts examine the lawfulness of a decision made, or action taken, by a public body. It is a key tool used by PILC and other public-interest lawyers to challenge injustice and human rights abuses on behalf of clients.
When undertaken strategically, judicial review may not only help an individual claimant—it can also have a wider social impact. A successful judicial-review claim can result in a public body being forced to change an unlawful law, policy or practice. Other public bodies may also have to change their rules in line with the court’s judgment.
Judicial review can expose, and curb, the sexist, racist and anti-working class nature of UK law and policy. For example, PILC has assisted campaigners to use judicial review to good effect in challenging the selling-off of community assets to the highest bidder (Mohinder Pal v London Borough of Ealing  EWHC 2154 (Admin))
Unfortunately, judicial review is an expensive course of action. Legal aid for such challenges, though available, has been limited in recent years.The Legal Aid Agency is increasingly reluctant to fund challenges to cuts in services or administrative-law decisions that may be viewed as having a ‘political’ dimension.
What’s wrong with the new bill?
We’re particularly concerned about the first two clauses of the Judicial Review and Courts Bill, which deal specifically with Judicial Review.
Clause 1 seeks to amend the Senior Courts Act 1981 (SCA) to revise the effect of a Quashing Order. Currently, when the High Court such an order, its effect is immediate, and the decision that has been ruled unlawful is treated as if it had always been invalid. A Quashing Order is not only an effective tool for the Court; it also offers clients a clear sense of justice and opens the door for potential damages in relation to the actions of the public body concerned.
The government clearly intends to water down the impact of a Quashing Order. First, the bill would give the courts power to delay the effect of an order until a future date. This would allow an unlawful decision, policy or practice to be treated as if it were still valid until that date.
Second, the bill would create the presumption that a Quashing Order would not have any retrospective effect. This could shield the government from accountability for subjecting people to unlawful policy or practices.
It’s worth considering the practical implications of such an amendment. In the case of Gunars Gureckis and others v Secretary of State for the Home Department  EWHC 3298 (Admin), brought by PILC, the High Court quashed policy guidance from the Home Office that had led to the detention and deportation of homeless EU citizens. The policy was immediately suspended, and the Home Office was forced to stop detaining EU nationals who were sleeping rough. The quashing of the policy meant that those affected could secure compensation for unlawful detention or removal.
The changes proposed in Clause 1 could have prevented the policy being deemed unlawful retrospectively. It might also have stopped those affected from obtaining financial redress.
‘Cart’ judicial-review claims are currently a last resort in immigration and social security cases, and often involve fundamental aspects of human rights law. In immigration cases, issues relating to torture and the permanent separation of families are frequently at play. Access to justice in these areas has already been badly hit badly by cuts to legal aid.
The proposed reform would close another door in the face of people who have been trying, often for years, to assert their fundamental rights.
The Judicial Review and Courts Bill is now at the Committee stage. There is still time to make fundamental changes, which could include removing Clauses 1 and 2. Unfortunately, given their significant majority, it is likely that the government will be able to force the bill through with both clauses intact.
As when Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) introduced cuts in funding for legal aid, the measures contained in this bill will disproportionately affect the poorest in society. Now, as then, there is an urgent need for lawyers to join with grassroots groups and the trade-union movement in opposition to a retrograde piece of legislation. The legal community’s failure to build such alliances around LASPO had severe consequences. We must not make the same mistake again.
As politicians and protestors gather in Glasgow for the UN climate change conference, PILC senior solicitor Paul Heron blogs about the role strategic litigation should play within the mass movement required to tackle the climate emergency.
Paris was the first time an agreement had been reached on reducing carbon emissions. But the targets set there were not nearly ambitious enough. Major polluting industries like aviation and shipping were excluded from the legal agreement, which also lacked any clear mechanism for holding failing parties to account.
Above all, the Paris Agreement reflected the blind faith of many of its signatories in the free market and its mechanisms. The failure of COP21 is ultimately a failure of neoliberal economics—and a failure to appreciate that action against climate change needs to involve economic and social change on a systemic scale.
In Siberia and the Russian Far East, even bigger fires raged over a vast area, with smoke detected as far north as the North Pole. In Madagascar, a major drought left 1.1 million people without food, with aid agencies calling the disaster the first famine caused solely by climate change.
Estimates of the number of people likely to be displaced as a result of climate change vary dramatically. The most cited figure suggests that by 2050, 143 million people will have been forced to migrate as a result of failed harvests, droughts and flooding. Another study estimates that by 2100 some two billion people may be climate refugees.
The IPCC is not alone in calling for immediate and decisive action from governments. In June 2021 the United Nations’ World Meteorological Organisation called 2021 ‘a make-or-break year for climate action’, noting that ‘the window to prevent the worst impacts of climate change—which include ever more frequent more intense droughts, floods and storms—is closing rapidly.’
In 2020, the concentration of carbon dioxide in the atmosphere reached 417 parts per million, a level not seen since the Pliocene era three to five million years ago, when global temperatures were between 1.8 to 3.6 degrees higher than today. Internationally 2020 tied with 2016 as the warmest year on record—and in Europe it was the hottest year ever. The time to act was yesterday, yet world leaders tied to the global neo-liberal model are incapable of acting.
A systemic failure
A key reason why intergovernmental efforts to address climate change continue to fail is that their principal strategies are rooted in the current economic system. The solutions so far offered through COP primarily involve emissions-trading schemes, or carbon offsetting.
Such schemes are grounded in a profit-driven system that ties corporate interests to climate solutions. Corporations are centrally motivated by profit, not by dealing with climate change—and it is no secret that 100 companies are responsible for 71% of global emissions causing global warming. Yet the market is effectively being trusted to solve environmental problems. There is no evidence that such an approach works, but plenty of evidence that it is failing.
The idea that natural resources—land, air, forests, water—can and should be turned into commodities encapsulates is wrong with the neoliberal economic model.
Can law and strategic litigation save the planet?
Lawyers have a role in holding power to account around climate change. Organisations such as Client Earth and Plan B are increasingly bringing legal challenges, with varying degrees of success. But individual casework, even where undertaken strategically to raise awareness or stop a piece of legislation in its tracks, is likely to achieve only temporary success.
It is our view that litigation as a strategy of resistance needs to be embedded within the environmental movement. For one thing, and as Michael Ratner of the Center for Constitutional Rights has pointed out: ‘[W]ithout pressure from social movements its harder to win in courts.’
Litigation is one tactic among others that campaigners can draw on. It has an important part to play but should always be subordinate to the broader interests and strategy of the movement.
Building an alternative
The COP has faced many protests over the years, with the Copenhagen and Paris versions seeing protest on a global scale. COP26 represents a huge opportunity to galvanise the new mass movement against climate change that has emerged since 2019.
Young people, poor countries and the working class will bear the brunt of emissions-related climate change. Marginalised communities, trade unions and people from the Global South must therefore be central to the new environmental alliance. Since time is not on our side, the work of building such a movement needs to be done now—with lawyers playing a modest but strategic role.
 Michael Ratner (2021) Moving the Bar: my life as a radical lawyer, New York: OR Books, p. 141