Briefing on the EU Settlement Scheme: suitability requirements guidance version 2.0 - Ralitsa Peykova (11 March 2020)

The “EU Settlement Scheme: suitability requirements” guidance was published on 11 December 2019 and provides guidance to caseworkers on how to assess whether an applicant meets the suitability requirements of the EU Settlement Scheme (EUSS). This briefing is intended to provide some insight into the key points of this guidance and point out areas of potential controversy.

Paragraphs EU15 and EU16 of Part 1 of Appendix EU to the Immigration Rules set out the basis on which an application under Appendix EU will or may be refused on suitability grounds. According to the guidance, the assessment of suitability must be conducted on a case by case basis and be based on the applicant’s personal conduct and circumstances in the UK and overseas (page 14), including whether they have any relevant prior criminal convictions, and whether they have been open and honest in their application (page 19).

Rights under the EUSS do not accrue automatically but are granted following an application, and as such criminality becomes crucial. Applicants are requested to disclose past criminal offending, but the application is also run against police databases. The guidance is unclear on the threshold by which failure to declare a conviction would lead to a refusal, thereby creating a potential trap for those who have failed to disclose past convictions with such non-disclosure being relied upon as to refuse an application on suitability (honesty) grounds. Caseworkers are directed to consider evidence of criminality that they encounter on the Police National Computer (‘PNC’) and Warnings Index (‘WI’), even if that evidence was not declared by the applicant. The caseworkers should then determine whether the application is to be referred to Immigration Enforcement (‘IE’), who will consider whether the individual in question ought to be deported or excluded. The guidance suggests that a final decision on whether to pursue deportation or exclusion will be subject to a proportionality assessment (page 22).

The position on children is seemingly slightly different. Children under the age of 18 are not required to disclose any criminal activity. However, an application for any child over the age of 10 will still be subject to the same automatic checks, including PNC and WI checks. The guidance directs caseworkers to, where appropriate, consider evidence of criminality that they encounter on the PNC and WI, even if that evidence was not declared. On that basis, it appears that children under the age of 18 can still be refused on suitability grounds and their cases can be referred to IE. This aspect of the scheme is of concern.

The guidance lists in detail situations that warrant a referral to IE for consideration as to whether the applicant ought to be deported or excluded. In summary, amongst other things, a case should be referred to IE if the applicant has convictions that have resulted in their imprisonment (page 13). According to the guidance, a sentence of imprisonment does not include a suspended sentence that has not been activated.

A case should also be referred to IE if it is awaiting deportation consideration or the applicant is subject to an existing UK deportation decision or exclusion order. Where a deportation order has been made by virtue of the EEA Regulations 2016 but the applicant has not been removed under that order during the two-year period beginning on the date on which the order was made, IE must consider whether there has been a material change of circumstances since the deportation order was made.

A case should not to be referred to IE where a recorded decision has been made not to pursue deportation, to revoke a deportation or exclusion order, or a previous decision to deport the applicant has been overturned on appeal and the Home Office is not appealing the decision.

Where the applicant has a pending prosecution which could lead to a conviction and a refusal on suitability grounds and does not otherwise meet the criteria for referral to IE in respect of any other offence, caseworkers are directed to consider whether it is reasonable and proportionateto pause the application until the outcome of the prosecution is known (page 25). The guidance clarifies that it will not be appropriate to pause the application in all such cases, by citing an example of when the offence in question would not be material to whether or not the application ought to be refused or if the proceedings are likely to take a significant period of time. However, it appears that, in ILPA members’ experience, these cases are being paused as a matter of routine.

Under paragraph EU15, an EUSS application will be refused on grounds of suitability where, at the date of decision, the applicant is subject to a deportation or exclusion order, or a decision to make a deportation or exclusion order. Existing EU law on deportation applies to criminal convictions until the end of the transition period. i.e. 31 December 2020. Convictions after that date are set to be subject to the UK’s domestic law on deportation in the UK Borders Act 2007, i.e. where the individual’s presence is not conducive to the public good. For a discussion of the problems in the current implementation of the deportation arrangements, see pp 27-29 of the ILPA Report on EU Residence Rights After Brexit (January 2020).

Paragraph EU16, unlike paragraph EU15, is a discretionary provision. This means that decisions under paragraph EU16 are subject to a proportionality assessment. Under paragraph EU16(a) an application may be refused if the decision maker is satisfied that, whether or not to the applicant’s knowledge, the application has been submitted based on false or misleading information, representations or documents that are material to the decision whether or not to grant the applicant status.

Any false or misleading information, representation or documentation is material to the decision whether or not to grant the applicant settled status or pre-settled status if it affects the applicant’s ability to meet the requirements of Part 1 of Appendix EU, which is essentially the applicant’s eligibility or suitability. This means that a caseworker is directed to refuse an application if, for example, the applicant fails to disclose past criminal offending. It is therefore unclear why applicants are required to be self-declaring any criminal convictions, if their applications will be subsequently checked against the relevant police databases anyway. This issue has been raised many times by ILPA and others, although without a satisfactory answer.

When considering whether to refuse an application on the basis of rule EU16, caseworkers are directed to also consider whether that refusal would be proportionate, in light of all the known circumstances of the case.

In relation to paragraph EU16(a), caseworkers are given guidance as to which factors they should be considering when assessing proportionality, such as the seriousness of the dishonesty or deception, whether the applicant knew about the dishonesty or deception, the impact on the applicant and their family member(s) and the applicant’s response to the notification in writing given to them regarding the alleged dishonesty or deception. Caseworkers are directed not to refuse an application under paragraph EU16(a) where there has been a genuine error by the applicant or a third party.

Under paragraph EU16(b), an application may also be refused where the applicant is subject to a removal decision under the EEA Regulations 2016 on the grounds of their non-exercise or misuse of rights under Directive 2004/38/EC. If the applicant is already being considered for removal in accordance with the EEA Regulations 2016 on grounds of their non-exercise or misuse of rights, that consideration must be concluded before any decision is made on their application under the EU Settlement Scheme. If it is not a live removal it cannot be subject to a decision to refuse on the basis of suitability. 

The guidance importantly notes that a person will not meet the threshold of removal on the basis of non-exercise of treaty rights solely because they are a student or self-sufficient person with no Comprehensive Sickness Insurance.

Past removal decisions that are no longer live raise questions around eligibility and more specifically around the break in continuity of residence for applicants that have consequently returned to the UK and are applying under the EU Settlement Scheme. This would be particularly relevant to applicants that were removed under the Home Office rough sleeper removal policy which was found to have been unlawful in R (Gureckis) v Secretary of State for the Home Department [2017] EWHC 3298 (Admin).

Ralitsa Peykova

Deighton Pierce Glynn

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Uploaded Date

11 March 2020

Doc. Date

11 March 2020

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