ArticleUpper Tribunal rules Home Office EUSS delay policy unlawful

In a landmark ruling, the Upper Tribunal has declared the Home Office policy of delaying the consideration of EU Settlement Scheme (EUSS) applications due to pending prosecutions as unlawful. This decision, stemming from the case R (Lukasz Krzysztofik) v Secretary of State for the Home Department, underscores the significance of a timely resolution for applicants and highlights critical flaws in the Home Office’s approach with EUSS delay policy.

Background: The “Pending Prosecutions” Policy

The EUSS policy required that applications be paused if the applicant had a pending prosecution that could lead to a conviction and a refusal on suitability grounds. This policy, introduced in version 5.0 of the suitability requirements and upheld in version 8.0, mandated that applications be held for six months. After this period, applications could only be progressed if there were no previous convictions, only one pending prosecution, and the maximum potential sentence was less than 12 months. This automatic pause was intended to maintain the integrity of the immigration system by ensuring that individuals with potentially disqualifying criminal conduct were thoroughly vetted before being granted status.

Background of the case

LK, a Polish national who had been residing in the UK since 2006, applied for settled status under the EUSS on 17 September 2020. At the time of his application, he was awaiting the outcome of four criminal charges related to pre-Brexit conduct. Shortly after his application, the Home Office paused his EUSS application on 20 September 2020, pending the resolution of his criminal proceedings. By January 2021, three of the charges were dropped, and LK pleaded guilty to the fourth charge, assault occasioning actual bodily harm, for which he was later sentenced to 46 weeks in custody in February 2022.

Judicial Review and Tribunal Findings

LK challenged the delay in his EUSS application and the broader Home Office policy of pausing applications with pending prosecutions. The judicial review argued that the policy did not account for individual circumstances and fettered discretion, failing to consider the length of an applicant’s residence and its relevance to deportation decisions.

The Upper Tribunal, led by Judge O’Callaghan, found the policy unlawful. The tribunal emphasised that the policy failed to incorporate the Union principle of proportionality and did not instruct decision-makers to consider the relevant legal thresholds for deportation based on an individual’s residence length. The tribunal also highlighted the policy’s failure to address whether an applicant could be refused leave to remain or settlement if convicted.

The tribunal ruled that the delay in LK’s application and the policy itself breached the Withdrawal Agreement, necessitating a policy revision.

Impact and Future Implications

The Home Secretary has been ordered to publish a replacement policy within three months, with the current guidance quashed but temporarily stayed to allow for this transition. All paused applications will be reviewed as soon as possible, ensuring that applicants like LK receive timely decisions.

This ruling serves as a critical reminder of the importance of procedural fairness and individual consideration in immigration decisions. It highlights the need for policies that balance public interest with the rights and circumstances of applicants, ensuring that the immigration system operates justly and efficiently.

As the Home Office works to implement a new policy, this decision sets a precedent for more nuanced and proportionate handling of EUSS applications, ensuring that applicants are not left in prolonged uncertainty due to pending prosecutions.

For those affected, this ruling provides a path forward, affirming their rights and the necessity of timely and fair consideration of their applications. It also reinforces the judiciary’s role in holding the Home Office accountable, ensuring that immigration policies comply with legal standards and respect individual rights.

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