In the 2021 case of Singh (EEA; EFMs) [2021], UKUT 319 (IAC) heard in the Upper Tribunal (Immigration and Asylum Chamber), Mr Singh, a national of India, appealed a decision by the Home Office to refuse his application for a residence card. Mr Singh previously held a residence card due to his durable relationship with his partner with an EU national; however, this broke down as a result of domestic violence. His application to the Home Office was for a residence card on the basis of his retained right of residence under regulation 10(5) of the EEA Regulations 2016. This was refused by the Home Office because the couple were not married or in a civil partnership, a specific requirement under this regulation. In this article, we will look at the detail of this case, the basis for the appeal, and what this means for others in the same situation.
The basis of Mr Singh’s case rested on EU Directive 2004/38/EC, which provides that a non-EU national in a relationship with an EU national has the retained right of residence where there have been “particularly difficult circumstances”, including domestic violence, even if unmarried. He also argued that any differential treatment on the basis of his marital status should be deemed discriminatory and, therefore, unlawful as it breaches the principle of equal treatment.
The next question is how Mr Singh was able to make this argument, given that the UK is no longer in the EU. This was possible because his residence rights were established before the UK left the EU on 1st January 2020. In addition, paragraph 5 of Schedule 3 of the EEA Transitional Regulations includes a provision for appeal rights and appeals which are pending as of the end of 2020 (the end of the transition period).
The respondent (the Home Office) case was that article 3(2) under Directive 2004/38/EC, which states that “the partner with whom the Union citizen has a durable relationship, duly attested” should receive residence, should not apply because the “duty to facilitate residence under article 3 (2) had ceased well before the date of decision as that duty exists only so long as the durable relationship exists”. In making this argument, the Home Office cited the decision made in the case of Tarikul Islam [2020] UKAITUR EA043902019.
The tribunal agreed with the Home Office that the duty to facilitate residence only applies when the partner has a continuing durable relationship with the EU national sponsor. The judgement on this matter also says, “Recital 6 starts “In order to maintain the unity of the family”, yet what occurred here is that the family had on any realistic view ceased to exist. The durable relationship has ceased well before the application was made”.
They also agreed that article 13 (provision of retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership) does not apply to former durable partners. The judgement states, “The reality is that the appellant ceased to be a family member by operation of the Regulations when his relationship ceased”.
The tribunal also dismissed the argument made by Mr Singh in relation to discrimination.
The Upper Tribunal dismissed Mr Singh’s appeal.
According to the judgement, Mr Singh applied to the EU Settlement Scheme for leave to remain. Under the EUSS rules, it is possible to apply for settled status (or pre-settled status) where a person was in a family relationship with someone from the EU, Switzerland, Norway, Iceland or Liechtenstein who was living in the UK by 31st December 2020, and this broke down permanently because of domestic violence or abuse. Crucially, this also applies to unmarried partners. The key in making an application of this type is providing sufficient proof that domestic violence occurred. This may take the form of a criminal conviction, police caution, final order in a civil court, charging decision, domestic violence protection order, prohibited steps orders and contact order, a letter from social services, or welfare officer referral, or a letter from an organisation supporting victims of domestic violence.
It is not entirely clear from the judgement why Mr Singh did not simply apply to the EUSS and avoid the appeal process entirely. In such cases, it is always important to understand your available options and which is the most suitable to take, given the balance of the likely outcome, complexity, cost, and time. If you are in a similar position or if you have already applied to the EU Settlement Scheme either as an EU/EEA national or a non-EU/EEA family member, and you have been refused, speak to an immigration Solicitor who will be able to quickly review your case and explain the best route to achieve your long-term objectives.
For assistance with your immigration law matter, phone us on 0121 777 7715 to make an appointment with one of our SRA Regulated Immigration Solicitors based in Birmingham and London.
Please note that this article does not constitute legal advice.
While the EU Settlement Scheme closed for most new applications on 30th June 2021, the scheme remains open for those with a valid reason for making a late application, family members, and those switching from pre-settled to settled status. The latest government data for December 2021 shows that 6,385,500 EUSS applications have been received by the Home Office, of which 3% have been refused. While this may seem a small percentage, it amounts to nearly 200,000 people. Furthermore, around 400,000 people are still awaiting a decision on their application. In this article, we will look at why some EUSS applicants are being deprived of settled status due to crimes they did not commit.
The Independent recently wrote an article on the plight of some EUSS applicants who had received a decision to pause their application on criminal grounds, including in relation to non-existent pending prosecutions. The immigration rules relating to pending prosecutions for EUSS applications are covered in the Home Office’s EU Settlement Scheme: suitability requirements document. This defines a pending prosecution as one whereby a person:
The guidance also explains that applications where the applicant has a pending prosecution which could lead to a conviction, and a refusal on suitability grounds may need to be paused until the outcome of a prosecution is known. It also states, however, that applications paused for at least six months must be progressed when:
A freedom of information (FOI) request has revealed that this is not an isolated problem, with over 25,000 EUSS applicants having their case put on hold on the basis of a pending prosecution. The problem being is that some applicants are experiencing a pause of their EUSS application for lengthy periods for non-existent pending or quashed prosecutions.
EUSS applicants in this position already living in the UK are being told by the Home Office they have the right to remain in the UK, but not having a firm decision means they often struggle to prove their right to work, rent, and claim benefits.
As reported in the Independent, a Polish national, Mr Balewski, had his EUSS application deferred for two years due to allegations of fraud dating back to 1999 in Poland. He was subject to extradition proceedings related to this fraud, but these were quashed in a UK court in 2016. His Home Office letter stated, “If you believe that it has already concluded, but police records have yet to be updated, you must confirm with the police when their records will be updated”.
The letter from the Home Office meant that Mr Balewski was put into a position of considerable uncertainty and meant he had to make numerous enquiries of the police to gain an updated copy of the records available on the Police National Computer (PNC). Explaining just how difficult the experience was, he stated, “At the back of my mind there was always this horror of me being sent back to Poland, basically a foreign country, that I haven’t lived in for over 20 years, thinking, what now?…I was contemplating suicide. Every day when I went to work, went to sleep, it was always there, this uncertainty – it eats you alive”. Not only did he undergo considerable stress, he nearly lost his job as a sports groundsman, a position he had held for 14 years, and he struggled to find a place to live because he could not prove his right of residence in the UK.
The existing rules regarding EUSS applicant suitability and the possibility that applications may be paused pending a prosecution make reasonable sense. The problem is that where a person has no pending conviction, but the Home Office believe they do, the onus is placed onto the applicant to resolve the issue. In most cases, a simple check of the PNC would show the true situation. As Kasia Makowska from the Public Interest Law Centre explains, “By putting the onus on the applicant to liaise with the police, the Home Office is placing a heavy burden on an already vulnerable group, and ultimately penalising them if the police fail to update their records. We are concerned that thousands of people may have been impacted”.
If you are in a similar situation and you need assistance, it is recommended that you speak to an immigration Solicitor who can resolve the matter for you and push the Home Office to resume the processing of your EUSS application.
For assistance with your immigration law matter, phone us on 0121 777 7715 to make an appointment with one of our SRA Regulated Immigration Solicitors based in Birmingham and London.
Please note that this article does not constitute legal advice.
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