Published On: 26th June 2024

The Home Office must consider the individual circumstances of EU citizens/EEA nationals before delaying determination of their EUSS applications pending criminal prosecutions. 

The Upper Tribunal found the Home Office’s policy that delayed the processing of the vast majority of applications for EUSS Settled and Pre-settled Status made by EU citizens/EEA nationals who had pending prosecutions following criminal charges to be unlawful. 

The judgment will apply to almost 20,000 EU citizens/EEA nationals who had their applications for settled status paused. 

The Background  

Our client is an EU citizen who has lived in the UK for almost 20 years. When Brexit came into effect, he had to apply for Settled Status under the EU Settled Status (EUSS) scheme. 

Yet while he waited, pending criminal charges lead to his EUSS application being ‘paused’ so that he was blocked from accessing his essential rights under the UK’s EU Withdrawal Agreement.

The likely penalty for his criminal charge was minor. On conviction and sentencing, it could never have led to his Settled Status application to be lawfully refused under applicable Withdrawal Agreement standards.

Time and time again his paused application meant that he couldn’t get the support for which he was eligible. This included housing assistance and universal credit. Without legal representation, there was a strong chance he could have become homeless.  

[Read more about the case here

The Judgment 

The Upper Tribunal found that: 

  • The Home Office’s policy to pause EUSS applications because of pending prosecutions has been unlawfully directing Home Office caseworkers in their decision making  
  • The policy has breached the EU law rights of those subject to it  
  • There is a cohort of EU citizens/EEA nationals, like our client, who have had their application paused under this policy but could never have had their application refused on consideration of the criminal penalty following conviction on their pending criminal charge 
  • In order to act lawfully, Home Office decision-makers must consider an applicant’s length of residence, the applicable Withdrawal Agreement standard of protection, and whether a delay is proportionate before deciding to pause an EUSS application  
  • The unlawful policy has robbed deserving EU citizens/EEA nationals of ‘security of mind and confidence in future planning’. 

Fighting For Migrant’s Rights 

PILC solicitor, Ellen Fotheringham, worked on this case. She said “The criminal charges that the many people in this situation face are highly unlikely to result in a custodial sentence or deportation. Many have lived in the UK for many years, and qualify for Settled Status. They have faced great uncertainty and have been subjected to the hostile environment for no good reason. This is a clear breach of the promise to EU citizens/ EEA nationals living in the UK that their rights would not be impacted by Brexit. 

If he hadn’t had legal representation our client  would have been destitute and homeless. We’re glad that thousands of others in the same position will now have their applications individually assessed so that they can move on with their lives.”  

The barristers were Adrian Berry of Garden Court Chambers and Jamie Burton KC of Doughty Street Chambers.

We want to thank all the people from Praxis, RAMFEL and The 3 Million who worked with us on this case.

Accessing legal representation is essential. For this case, the judicial review was refused twice. We had to appeal in the court of appeal. Every stage has suffered delays.

That’s why this year, we walked the London Legal Walk to raise awareness of how cuts to legal aid are affecting real people. We’re raising money for PILC’s fighting fund, so that we can put the power of the law into more movements and communities.

If you are able to, please consider donating what you can afford and help us raise £2,000 to help support PILC’s vital work.