Avoiding Delays in EU Settlement Scheme Applications
A large number of applications for settled status and pre-settled status under Appendix EU, using the EU Settlement Scheme (EUSS), face significant delays. These delays can persist well beyond the expected waiting times as given on the GOV.UK website:
“It usually takes around 5 working days for complete applications to be processed if no further information is required, but it can take up to a month.”
Although some EU Settlement Scheme applications may be decided within a month, that does not seem to be the norm. In fact, many applicants can wait over six months and some have faced delays of over a year before their case has been decided. When EU Settlement Scheme waiting times exceed expectations, it can be both stressful and alienating for applicants, particularly if they have spent years living and working in the United Kingdom, or have family and other obligations here. It can also give rise to serious problems where applicants are unable to convince wary employers or landlords of their long-term right to be in the United Kingdom.
There are various reasons for these delays, but one of the most common is that an applicant has a criminal history or pending prosecution.
In this post we address ways in which applicants can avoid delays like this. In Part 2, we address how to challenge delays when they are already underway.
Delays in EU Settlement Scheme Applications
When an application is submitted to UK Visas and Immigration under the EUSS, there is a four-stage decision-making process. Firstly, the applicant’s identity is verified, often through the EU Exit app. Next, the application passes through the ‘Suitability Stage’, and then on to the ‘Eligibility Stage’. At the fourth stage, the decision is made and issued.
Where a person has any criminal history, regardless of the seriousness of the offence, or whether or not their conviction is spent, their application can often be stalled at the Suitability Stage. Delays can be excessive, unnecessary and poorly explained such that it is necessary to challenge them in order to move on to the Eligibility and Decision Stages.
The Suitability Stage
Refusal of an application on the basis of suitability can be for any of the following reasons, as set out in Paragraphs EU15 and EU16 of Appendix EU:
- The applicant is subject to a deportation order at the time of application;
- The applicant is subject to an exclusion order at the time of application, under the The Immigration (European Economic Area) Regulations 2016 (the EEA Regulations), Regulation 23(5), i.e. on grounds of public policy, public security or public health;
- The applicant has submitted false or misleading information, representations or documents as part of their application, which is material to the decision;
- At the time of application, the applicant is subject to a removal decision because they have failed to use, or misused, their free movement rights, i.e. their rights as an EEA national to enter and reside in the United Kingdom as a worker, as a self-employed or self-sufficient person, as a student, or as the family member of this person;
- The applicant has previously been refused admission to the UK under the EEA Regulations 2016, Regulation 23(1), i.e. on grounds of public policy, public security or public health;
- The applicant previously held settled or pre-settled status under Appendix EU, which has been cancelled, and refusal is justified because of:
- Their conduct before 11pm on 31 December 2020, on grounds of public policy, public security or public health;
- Their conduct after 11pm on 31 December 2020, on grounds of the public good; or
- The applicant is a ‘relevant excluded person’, i.e. they are a refugee who has been excluded from the protection of the Refugee Convention 1951 under Article 1F, or Article 33(2). This may apply if there is reason to believe an applicant committed a war crime, a crime against humanity, or any serious and dangerous crime.
If any of reasons 3 to 7 above apply, then the decision to refuse must also be ‘proportionate’. This involves consideration of many factors, including the impact on any relevant family members of an applicant.
Where there is a conviction or pending prosecution, but there isn’t already a deportation, exclusion order, or removal or cancellation decision in place, some cases will be referred to Immigration Enforcement (IE) to consider whether a deportation order should now be made.
However, the policy document EU Settlement Scheme: suitability requirements, version 3.0, published 06 April 2020, (the Suitability Policy) is clear that the threshold for referral to IE on the basis of criminality is fairly high. Non-custodial or suspended sentences should not result in referral, nor should a conviction with a sentence of imprisonment of less than 12 months, if received more than five years ago. Referral is also inappropriate where, following a conviction, deportation has already been considered and either decided against or successfully appealed, and there have been no further offences.
Just because a case is not referred to the IE, does not mean that it cannot lead to refusal. Neither the Suitability Policy nor the law in Appendix EU takes a position on whether or not offences below the threshold for referral should lead to refusal. In fact, the Suitability Policy states that where a prosecution is pending at the time of application, the decision-maker must consider whether “it is reasonable and proportionate for the application to be paused by UK Visas and Immigration until the outcome of the prosecution is known”, even where that prosecution does not “otherwise meet the criteria for referral” to IE. This seems to imply that, where reasonable and proportionate, lesser offences may lead to refusal.
In any event, many practitioners have seen cases where very minor offences, spent offences or alleged offences which have not proceeded to charging, have caused long delays.
Avoiding delays in EU Settlement Scheme Applications
Applicants should be careful to disclose their criminal history and any pending prosecution. The Suitability Policy states at Page 8:
“Applicants (aged 18 or over) are required to provide information about previous criminal convictions in the UK and overseas and are only required to declare past criminal convictions that appear in their criminal record in accordance with the law of the State of conviction at the time of the application. There is no requirement to declare spent offences, cautions or alternatives to prosecution for example fixed penalty notices for speeding.”
It is also usual that decision-makers will check the Police National Computer (PNC) and the Warnings Index (WI) as well as any records held by UKVI about the applicant.
If you have a conviction or pending prosecution, whether in the UK or abroad, and regardless of how serious, it is important to declare it at the point of application. Otherwise applicants risk long delays and an allegation that they have misled the decision-maker.
Furthermore, despite the guidance quoted above, it may be helpful to disclose evidence of any minor or spent offences to show that they are in fact minor or spent. Practitioners have seen some applicants whose criminality is very minor or long spent, and yet their application has stalled at the Suitability Stage while confirmation is awaited from the relevant country.
As a side note, applicants should also ensure they keep a clear record of precisely what they submit as part of their application. Keeping screenshots of the application form, and a file of all uploaded or submitted documents, can be invaluable later down the line if a delay or refusal needs to be challenged.
Particularly where an applicant has an overseas conviction, delays can occur because the decision-maker may decide to carry out an overseas criminal record check. To do this, they must first refer the case to a senior caseworker for permission to seek the overseas check, and then await the outcome of that check. Collecting this information yourself can prevent lengthy delays.
The way you source this information is of course dependent on the country in question, but collecting your PNC equivalent, or a sentencing document (with a professional translation if necessary), can prove that the conviction was, for example, minor, spent or overturned on appeal. This can save months of stasis at the Suitability Stage.
Within the UK, issues can arise where an applicant’s PNC entry has not been updated to reflect, for example, that criminal investigations have come to an end with a decision not to charge, or charges have been dropped. So long as the PNC shows that there is an active investigation or a charge pending, it is usual to be left languishing at the Suitability Stage.
It can therefore be useful to ensure that, prior to submission, you have requested your PNC through ACRO. If this record wrongly shows pending prosecutions or investigations, it is possible to contact the police to request the PNC is updated. Where there isn’t time to carry out this process prior to submission of the EU Settlement Scheme application, it may still be useful to get the process underway.
Contact our Immigration Barristers
For expert advice and assistance avoiding delays to applications under Appendix EU, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.