The Upper Tribunal (Immigration and Asylum Chamber) has ruled in favour of an applicant whose settlement application under the EU Settlement Scheme (EUSS) was delayed due to ongoing criminal proceedings for alleged offences committed before the end of the Brexit transition period. The Tribunal found that the policy of the Secretary of State was unlawful.

 

Specifically, the policy mandated that if there was an ongoing prosecution which could result in a conviction and subsequent refusal based on suitability, the EU Settlement Scheme application decision making process had to be paused until the prosecution’s outcome was determined, even if the offence did not meet the criteria for referral to immigration enforcement.

 

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The case concerned is R (on the application of Krzysztofik) v Secretary of State for the Home Department (The Independent Monitoring Authority for the Citizens’ Rights Agreements intervening). Keep reading to learn more about the background of the case and its implications.

 

Background

 

The applicant, a Polish national, had applied for settlement under the EU Settlement Scheme (EUSS) after entering the United Kingdom. While his application was under review, he faced four charges for actions that occurred before the Brexit transition period ended. The Secretary of State put his EUSS application on hold due to these pending charges, following the ‘pause policy.’

 

This policy dictates that if an applicant is facing prosecution that might result in a conviction and a subsequent refusal based on suitability, the EUSS application must be delayed until the prosecution’s outcome is determined, regardless of whether the offence qualifies for immigration enforcement referral. The applicant challenged the legality of this policy, arguing that it unlawfully neglected to consider his specific circumstances.

 

Upper Tribunal Decision

 

The issue the Tribunal had to determine was whether the pause policy under which applications under the EUSS were paused pending determination of criminal prosecutions in respect of the applicant was unlawful.

 

As a matter of public interest, delaying the decision on an application is reasonable and proportionate if the alleged conduct is likely to result in a conviction and deportation based on the residence threshold.

 

However, the current policy extends to conduct that is not likely to lead to a conviction and deportation. The policy’s design prevents the review of an applicant’s residence length in the UK, making it impossible to determine the applicable threshold before pausing the application. As a result, the stay is enforced without fact-finding, relevant facts, or a reasoned decision, and without inviting the applicant’s representations.

 

Alleged criminality should only justify a stay if it could lead to a refusal of residence based on the threshold and proportionality. Pausing cases without this justification undermines public confidence, as those individuals are not likely to be removed. This approach delays applicants from securing their entitled status when there is no likelihood of refusal after criminal proceedings. Such a policy is incompatible with the Withdrawal Agreement’s requirements for individual, fact-based, and proportionate decision-making in a reasonable time.

 

Therefore, the Secretary of State had a duty to provide accurate legal advice to decision-makers but failed to do so, making the policy unlawful.

 

Our comments

 

We welcome the Upper Tribunal’s judgment, which highlights the flaws in the Secretary of State’s ‘pause policy’ under the EU Settlement Scheme (EUSS). This policy, which mandated pausing applications due to pending criminal prosecutions regardless of the severity of the alleged offences, was rightly deemed unlawful. Delaying decisions without considering the specifics of each case, including the likelihood of conviction and deportation, is not only impractical but also unjust.

 

Such a blanket approach disregards individual circumstances and unnecessarily prolongs uncertainty for applicants. This ruling reinforces the need for a more nuanced and proportionate system, ensuring that decisions are made based on facts and individual merit, thereby restoring public confidence and aligning with the Withdrawal Agreement’s requirements for timely and fair decision-making.

 

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