With the Settled Status Scheme (the Scheme) deadline (30 June 2021) fast approaching EU/EEA citizens who have not applied for Settled or Pre-Settled Status must quickly do so. Especially given that, despite the Scheme being up and running since 2019, some EU/EEA citizens are being refused Settled Status despite living and working for years in the UK.
In April 2021, EU citizens’ rights campaigner Dahaba Ali, aged 27, was shocked to find her application for Settled Status had been rejected. She had been living in the UK since the age of 10 years. Originally from Somalia, Ms Ali and her mother were granted refugee status in the Netherlands before moving to the UK. A campaigner for The3Million, Ms Ali works as a producer at the BBC.
Following her application for herself and her mother in October 2020, Ms Ali received a letter from the Home Office stating:
“Your application has been carefully considered but unfortunately from the information available you do not meet the requirements of the scheme. I am sorry to inform you that your application has therefore been refused.”
It adds that although evidence showed Ms Ali lived in the UK “periodically” between February 2016 and December 2019, this did not meet the five years’ residency requirement.
Ms Ali’s mother’s Settled Status application was granted.
What appears to have happened is that Home Office emails to Ms Ali asking her for more information on her application had gone straight to her spam folder. Furthermore, no texts from the department were received.
A Home Office spokesperson told The Guardian that Ms Ali’s application to the EU Settlement Scheme was refused because she failed to provide evidence of her residence in the UK.
“She is able to reapply to the scheme by 30 June 2021 and we encourage her to get in touch with the helpline where our dedicated staff can support her to provide the requested evidence.
“We made several repeated attempts to contact her over a number of weeks – by email, phone and text – but the evidence requested was not provided. We accept a range of evidence and will work with people on a case-by-case basis to consider other evidence if necessary.”
Ms Ali, who is currently working with an Immigration Solicitor to overturn her Settled Status refusal, shot back:
“I immediately knew it was a mistake and I got help and took to Twitter. But if the process went wrong for me, then what about the people who are so vulnerable they don’t even know their own rights?”
“An obvious example is my own mother who can’t read or write. If her application had been denied, how would she have known? What would have happened to her? I just can’t help but think that if the Home Office had wanted to get hold of me, they would have sent a letter and tried a lot harder than they did with me.
“I think it’s going to be a huge issue after June when employers and landlords start demanding proof of your status. I just didn’t think it would be my case that would highlight it.”
The most common reason Settled Status is refused is the applicant fails to prove that they have been a resident in the UK for five years. In such cases, Pre-Settled Status is granted instead. Pre-Settled Status is more precarious than Settled Status, for example, you must not leave the UK for long stretches to ensure you are eligible for Settled Status in the future. If you have been granted the former when you believe you are eligible for the latter, you should contact an experienced Immigration Lawyer immediately.
Under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations, which came into effect after 11pm on 31 January 2020 (EU Exit Day), applicants for the EU Settlement Scheme now have a right of appeal if the decision relating to the appeal was made after EU Exit Day.
If you received a refusal before EU Exit Day, an Immigration Solicitor can advise you on the best steps to take. Options include resubmitting your application or applying for Administrative Review or Judicial Review.
Strict time limits apply to lodging an appeal in the First-Tier Tribunal; if you are in the UK, you have 14 days to do so, whilst those lodging from outside the country have 28 days to appeal their Settled Status decision.
Finding out your Settled Status application has been refused and you have instead been granted Pre-Settled Status is a highly stressful situation, especially as the application deadline nears. Regardless of when you received the decision, contact an experienced Immigration Lawyer straight away. They will advise and represent you and ensure that your application under the Scheme is correctly granted.
Based in Birmingham and London, UK Migration Lawyers is one of Britain’s best immigration law firms. If you want more information on the EU Settlement Scheme, please phone our office on 0121 777 7715.
Some of the best Immigration Solicitors in the UK, along with Open Rights Group (ORG) and the3million, which represents EU citizens living in the UK have taken a challenge to the ‘immigration exemption’ in the Data Protection Act 2018 to the Court of Appeal.
In October 2019, the High Court ruled that the ‘immigration exemption’ was lawful. In February 2021, the Court of Appeal hearing took place, and we are currently awaiting the decision.
Aside from Immigration Lawyers and Home Office officials, few people have heard of the ‘immigration exemption’. So why is it subject to a court challenge?
Article 15 of the GDPR outlines the right of data subjects to access their personal information. It states:
“The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data”.
When someone requests access to their personal data that is held by a public or private body or
a charity, it is known as a Subject Access Request (SAR).
The ‘immigration exemption’ which is contained in schedule 2 of the Data Protection Act 2018, allows the Home Office and other organisations involved in ‘immigration control’ to refuse SARs if providing access to personal data might “prejudice the maintenance of effective immigration control”.
The ORG and the3million brought a Judicial Review claiming that the ‘immigration exemption’ was too broad. They argued that the exemption is unlawful because it amounts to unnecessary and disproportionate interference with fundamental data protection rights.
The High Court rejected the Claimants’ arguments. Mr Justice Supperstone concluded the immigration exemption was a matter of important public interest and pursued a legitimate aim. The issue before the Court was what was legally required where, as with the ‘immigration exemption’, the legislation did not itself interfere with people’s data rights, but instead made abstract provision for an exemption which data controllers could rely on if the circumstances of a particular matter meant it was justifiable to do so. The Court held that the immigration exemption satisfied the requirements for a measure to be “in accordance with law”, given the fact it was non-ambiguous.
Following the High Court decision, the ORG and the3million said
“We are disappointed by the judgement in the High Court today and we have applied for permission to appeal.
“We still believe that the immigration exemption in the Data Protection Act 2018 as it stands breaches fundamental rights. It is a blunt instrument, poorly defined and ripe for abuse. Access to data is key for an accountable system, that corrects errors in an immigration system that occur at an alarming rate. The importance of this can’t be underestimated. Millions of EU citizens must navigate the Home Office application process to stay in the UK. This exemption removes that ability to correct errors, which could prove decisive in immigration decisions whether to allow a person to remain in the United Kingdom.
“As a result of this litigation we know the exemption is being used and is being used often. Open Rights Group and the3million will continue the fight against the immigration exemption, seeking an immigration system and data protection framework that respects the rights of everyone.”
The ‘immigration exemption’ has been a contentious provision ever since it was inserted into the Data Protection Act 2018, especially given that it was not present in the 1998 version of the Act. It was noted in the judgment that of around 18,000 SAR’ received in the first year following the coming into force of the Data Protection Act 2018, the ‘immigration exemption’ was depended on to avoid disclosure in 59% of cases. Therefore, a decision to rule it unlawful could result in many immigration decisions needing to be reviewed and possible grounds for thousands of pounds in compensation claims.
We will update you as soon as the Court of Appeal decision becomes available.
Based in Birmingham and London, UK Migration Lawyers is one of the best Immigration Solicitors in Britain. If you have any concerns or questions regarding the ‘immigration exemption’ in relation to data protection, please phone our office on 0121 777 7715.