EU Settlement Scheme & Pending Prosecutions

By Lucy Katko - Immigration Barrister

22 Mar 2021

On 04 March 2021, the Secretary of State’s policy document EU Settlement Scheme: Suitability Requirements was updated (Version 5.0). This guidance document is used by UKVI decision makers to assess whether applicants meet the suitability requirements for either Settled or Pre-Settled Status under Appendix EU of the Immigration Rules. Details of the full suitability requirements can be found here.

The changes to the policy document clarify how decision makers are to approach applications where applicants have ‘pending prosecutions’. An applicant with a pending prosecution will: 

1. Either have been arrested or summoned in respect of one or more criminal offences and one or more of these offences has not been disposed of either by the police or the courts; 
2. Or be the subject of a live investigation by the police for a suspected criminal offence. 

The old approach to pending criminal prosecutions

Prior to the new policy document, the position was wooly (EU Settlement Scheme: Suitability Requirements, Version 4.0, published 31 December 2020). Decision makers were asked to decide for themselves whether it was “reasonable and proportionate” to pause the application until the outcome of the criminal prosecution is known. It was noted that delaying a decision would not always be appropriate, for example if the alleged offence would be immaterial to the decision, or when criminal proceedings were likely to take “a significant amount of time”, but no firm limits were put on the decision makers’ power to pause an application. As a result, many applicants found themselves waiting well over the standard processing times, and some were delayed in excess of a year. 

The new approach to pending criminal prosecutions

The new policy document offers a modest improvement. It begins by clarifying that where an application “would not fall for referral to Immigration Enforcement (IE), even if the pending prosecution present should lead to a conviction, a decision must be made on the application in light of all other available evidence” (my emphasis). 

In order to fall for referral to IE, any of the following may apply (Version 5.0, Page 14):

1. In the last five years, the applicant has received a conviction which resulted in their imprisonment;
2. At any time, the applicant received a conviction which resulted in their imprisonment for 12 months or more for a single offence; 
3. In the last three years, the applicant has received three or more convictions (including convictions that resulted in non-custodial sentences) unless they have lived in the UK for five years or more. At least one of these convictions must have taken place in the last 12 months and at least one of these convictions must be in the UK;
4. Where there is or may be deportation or exclusion action against the applicant;
5. The applicant has entered, attempted to enter or assisted another person to enter or attempt to enter into a sham marriage;
6. The applicant has fraudulently obtained, attempted to obtain or assisted another person to obtain or attempt to obtain a right to reside in the UK under the EEA Regulations 2016;
7. The applicant has been deprived of British citizenship;
8. The applicant committed an offence after 31 December 2021, which caused serious harm, but did not lead to their imprisonment;

It is now clear that where a pending prosecution would not cause an applicant to fall into one of these categories if convicted, it cannot be relied on to pause an EU Settlement Scheme application.

The new policy document also clarifies that where pending prosecutions for offences or conduct falls short of these categories, but might lead to a refusal on suitability grounds if convicted, decision makers “must pause the application until the outcome of the prosecution is known” (my emphasis). However, the new policy goes on to put some limits on the length of that pause:

“Applications paused for at least six months must be progressed when all of the following conditions are met:

• there is only one pending prosecution

• the maximum potential sentence upon conviction is less than 12 months, according to the maximum category 1 sentence in line with the Sentencing Council guidelines for the alleged offence

• there are no previous convictions” 

Although the policy is not explicit, this seems to imply that in the absence of other legitimate reasons for refusal, applicants who meet these conditions should have their applications granted while they await an outcome on their criminal case. 

In the event that a conviction then follows, any grant of status under Appendix EU may not however protect the applicant from deportation action:

“Where the application is progressed before the outcome of the pending prosecution is known, this does not prevent consideration being given to deportation in the event the person is convicted.” 

Potential impact of the new approach to pending prosecutions

This new policy should limit delays for some applicants with pending prosecutions. However, those accused of multiple offences or of more serious crimes, and those who have even minor previous convictions, will still find themselves facing very substantial waits for decisions. 

Although there are no published statistics on delays to applications where there are pending prosecutions, the latest available quarterly statistics for the EU Settlement Scheme (published in February 2021) show that as of 31 December 2020, 402,030 applications under the Scheme were awaiting a decision. The statistics on how long those applicants have been waiting is not available, but a Freedom of Information Request Response by UKVI shows that as of March 2020, 69,280 applications had been outstanding for between three and six months, 32,815 for between six months and a year, and 710 had been outstanding for over a year. This may provide some indication of the number of applicants currently facing delays. It is likely that many applicants with pending prosecutions are among those waiting this long.

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