Employment and Immigration Law Update - Settled status - administrative review

18 December 2019

As we have discussed in previous updates, the EU Settlement Scheme (EUSS) opened in March this year. Nearly all 3.4 million EU nationals living in the UK will be required to apply to the scheme to establish their right to continue to live in the UK after the UK has left the EU next year. There have now been over two million applications made.

Once an application has been submitted, the Home Office determines whether an EU national has been living in the UK for five years or more, in which case settled status is awarded, or if less than five years, pre-settled status is granted, with the option to apply again for settled status once five years have been completed. Where an individual disagrees with the outcome of their application, they are entitled to submit an application for Administrative Review. This means that a different caseworker within UK Visas and Immigration will review the original decision.

Freedom of Information Request by the Public Law Project (PLP) has revealed that 89.5% of admin reviews regarding EUSS decisions have been successful and the original decision overturned.

451 administrative reviews were requested up to 12 September 2019. Of the total 325 administrative reviews that had been decided by that date, 291 resulted in a decision of pre-settled status being overturned and settled status granted. To put this into perspective, only 3.4% of admin reviews in other immigration categories are usually successful, so this is a particularly high rate of decisions being successfully challenged.

Some decisions have been overturned because of mistakes made by caseworkers, although the Home Office says the majority are made because an applicant has provided new information to demonstrate that although they were granted pre-settled status, they have in fact been in the UK for five years or more and therefore qualify for settled status.

There are advantages to having settled, rather than pre-settled status. We urge EU citizens not to accept pre-settled status if they feel they are entitled to settled status and to challenge incorrect decisions where possible.

The PLP, who obtained the report, says the data could show a successful process in operation, demonstrating that checks and balances are working, but as PLP research director Joe Tomlinson comments, it “could also indicate that the automated data checks and initial decision-makers are getting things wrong more frequently.” Tomlinson added that it is also a concern because “a tribunal appeal right for EUSS decisions is still yet to be legislated for and judicial review is expensive, inaccessible, and limited to narrow legality claims, so administrative review is the primary mode of redress” available for applicants to the scheme.

The Home Office said the overall number of administrative reviews “is very low compared to the 2.4 million applications and 1.9 million granted status by the end of October 2019”.

However the PLP said that whatever the reason, the Home Office needs to get every decision right and may have to improve its communications to ensure EU citizens apply with correct information.

If you require any assistance with an application under the EUSS please contact a member of the Immigration Team.

This article is from the December 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For more details regarding any of the matters covered in this update, please contact Clare Hedges or Janice Leggett in our Immigration Team. Law covered as at December 2019.