Published On: 18th January 2022Categories: Brexit, Case Q&A, Migrants' rights
Image by dullhunk – licensed under CC BY 2.0

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?

In short—yes.

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.

The government’s plan to make it easier to deprive some British citizens of their citizenship represents another example of this worrying trend.

We will provide further updates on this case as it progresses.