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.