The EU Settled Status Scheme, under Appendix EU to the Immigration Rules, opened to all applicants on 30 March 2019.
Many EEA nationals and their family members have applied under the scheme, with a large proportion of Settled Status applications being granted. Many have also been granted pre-Settled Status where they have not been in the UK long enough to have obtained Settled Status. However, many have been granted pre-Settled Status, or have had their applications refused on eligibility grounds, in error.
The impact of incorrect decisions is potentially very serious as it could mean that EEA citizens and their family members' right to reside and access to services are affected. But how can decisions under the Settled Status Scheme be challenged?
What options are available for challenging a Settled Status decision?
The Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 ("the Regulations"), which came into effect after 11pm EU exit day (31 January 2020), now afford applicants under the EU Settlement Scheme a right of appeal, but only on decisions made under the EU Settlement Scheme after the Regulations came into effect. Previously, the only options for challenging erroneous decisions were administrative review and judicial review.
In addition to the above options, it is always open to an applicant to submit a fresh application. However, some applicants have found themselves facing the same issues with the application process as with their previous applications, resulting in more refusals. In these circumstances, it may be better to challenge a refusal.
Applicants are also entitled to an administrative review of the decision in certain circumstances, as set out below. It should be noted, however, that, administrative review is not available to challenge a refusal on suitability grounds. Applicants can apply for the decision to be administratively reviewed even whilst they have sought to appeal the decision under the Regulations.
As with all decisions made by public bodies, applicants are entitled to challenge decisions by way of judicial review. However, as this blog explains, judicial review is not a full review of a decision, but is an assessment, by a judge, of whether the decision was procedurally and legally correct.
Right of appeal against an EU Settled Status decision
The accompanying explanatory note to The Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 (SI 2020 No. 61), states that:
This instrument provides that, where a person makes a valid application for leave under the EUSS, or for an EUSS family or travel permit, on or after exit day, they will have a right of appeal against a decision to:
- refuse the application;
- in the case of an application under the EUSS, grant limited leave to enter or remain (pre-settled status under the scheme) where they believe they should have been granted indefinite leave to enter or remain (settled status under the scheme).
There is also a right of appeal against decisions to revoke indefinite leave to enter or remain under the EU Settlement Scheme, and against decisions to make a deportation order.
However, the right of appeal only applies to decisions made on or after exit day, as I have set out above. Applicants wishing to challenge decisions made before this date will have to challenge the decision either by administrative review or judicial review, as explained below.
Lodging an appeal against a Settled Status refusal decision
Appeals will usually be to the First-tier Tribunal (Immigration and Asylum Chamber). The only exception is where it is certified under Schedule 1 of the Regulations as having been taken in the interests of national security, in which case the appeal would be to the Special Immigration Appeals Commission ("SIAC").
Appeals can be lodged within the UK or outside the UK. The only exception is where an application has been certified, as above, in which case it can only be brought from out of country, unless the appellant has made a human rights claim while in the UK and there is no certification.
In the First-Tier Tribunal, appellants lodging appeals in the UK will have 14 days to do so, whilst those lodging from outside the UK have 28 days to lodge the appeal. Special time limits apply for appeals to SIAC.
Challenge by way of Administrative Review
Applicants who are not afforded a right of appeal may still ask for their decision to be administratively reviewed. Those who do have a right of appeal may simultaneously apply for administrative review and an appeal of the decision.
Administrative review is an internal mechanism for the Home Office to review decisions. The decisions are reviewed by a different decision maker, however it is still considered by a Home Office employee. They review the decision, and check it for errors. If the reviewing decision maker determines that the decision contains errors, then the decision can be changed or overturned.
The grounds for seeking administrative review include:
- the original decision-maker failed to apply, or incorrectly applied, Appendix EU;
- the original decision-maker failed to apply, or incorrectly applied, the published guidance in relation to the application; and
- there is information or evidence that was not before the original decision-maker which shows that the applicant qualifies for a grant, or a different grant, of leave under Appendix EU.
The final ground specified is interesting. Applicants can provide further evidence to the Home Office following the refusal of their application or a grant of pre-Settled Status, and the Home Office will consider it. This does not appear in the administrative review principles under Appendix AR where the reviewer will not consider any evidence that was not before the decision maker, except in certain circumstances. Only under Appendix AR (EU) is it permitted for further documents to be put before the administrative reviewer.
Who can apply for administrative review of a Settled Status decision?
Applicants will receive notice on their decision letters if they are eligible to apply for administrative review. There are two types of decisions which are eligible for administrative review:
- Decisions to refuse the application under paragraph EU6 of Appendix EU because the applicant does not meet eligibility requirements for indefinite leave to remain (Settled Status) or leave to remain (pre-Settled Status); and
- Decisions to grant an applicant limited leave to remain (pre-Settled Status) instead of being granted indefinite leave to remain (Settled Status).
Interestingly, where applicants are granted pre-Settled Status instead of Settled Status, they are not provided with a refusal letter setting out the reasons for the alternative grant of leave. There is concern that, as a result, many applicants may simply accept pre-Settled Status when they are actually legally entitled to Settled Status. If you are granted pre-Settled Status, you should consider whether you are entitled to Settled Status.
Applying for administrative review of a Settled Status decision
Applicants have 28 days to apply for an administrative review of the decision and applications for administrative review can be made online, either in the UK or from abroad.
Applications cost £80 per application, though there are fee exemptions in certain circumstances. If the application is successful, this fee will be refunded in full. However, the fee will not be refunded if the application was successful due to the provision of new evidence by the applicant that was not before the initial decision maker.
Although administrative reviews are an internal Home Office mechanism, they can offer a review of the decision which would provide a result more quickly than an appeal would. There is also the added benefit of being able to provide further evidence to be considered with the application, which is not permitted under Appendix AR (as mentioned above).
If an administrative review is successful, applicants may still proceed to appeal the original decision if they do so within 14 days from when they were sent the administrative review decision, or 28 days if they are outside the UK.
Chance of success and potential outcomes
A recent freedom of information request response confirmed that 451 requests for administrative review of Settlement Scheme decisions had been received, and of the 325 that have been decided, 89.5% were successful. This is a high turnover rate, which may be due to the fact that administrative reviews of EU Settlement Scheme decisions permits further evidence to be provided.
Judicial review of a Settled Status decision
Judicial review is different to administrative review and appeals. It is an independent review by a judge which can only take place if neither an appeal or administrative review is available; it is a remedy of last resort. Therefore, you would need to have exhausted your right to administrative review before considering judicial review.
Judicial review, however, is a complex and time-consuming process. How quickly your case will be dealt with is completely dependent on the capacity of the court considering your case. It could be months before a decision is made on your case, or even before you receive a response from the Home Office as to their assessment of your case against them. This is not particularly attractive for decisions under the Settled Status Scheme given the relative uncertainty caused by Brexit.
As judicial review is also not a review of the conclusion of a decision, but of the decision-making process, it means that notwithstanding a judge determining that a decision was made unlawfully, the Home Office could reach the same conclusion following the reconsideration. This is why well-drafted grounds and an appropriate bundle are essential preparation for judicial review, though you are not permitted to include further evidence which was not before the decision maker.
You should, therefore, consider carefully whether judicial review is the appropriate avenue for you and whether, actually, a fresh application would be more appropriate in your circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
