Introduction

In a judgment handed down on 26 June 2024 in R(Krzysztofik) v Secretary of State for the Home Department (JR-2021-LON-001727) (in which I appeared for the Applicant with Jamie Burton KC, instructed by Public Interest Law Centre (PILC), with the Independent Monitoring Authority (IMA) intervening), the Upper Tribunal held that the Home Office’s policy found in EU Settlement Scheme: suitability requirements (v 8.0) (‘the policy’) of pausing an EUSS application for leave to remain where an applicant has a pending prosecution is unlawful.

In the Order consequential on judgment, the Home Office have agreed to publish a replacement policy within three months (absent special circumstances). However, regardless of the progress it makes in doing so, the existing policy is quashed three months from the date of the Order in any event. Further, of interest to all EUSS applicants with paused applications on account of pending prosecutions, on publishing the replacement policy, the Home Office have agreed to review all paused applications as soon as practicable.

The basis for the Upper Tribunal’s decision

As found by the Upper Tribunal, the policy is unlawful because is directs Home Office caseworkers to pause EUSS applications on a basis inconsistent with the applicable law (here, as found in the UK’s EU Withdrawal Agreement (‘WA’); rights under the latter being available in domestic law via s 7A of the European Union (Withdrawal) 2018). This ground for the policy being unlawful is founded in the Opinion of Lord Sales and Lord Burnett CJ in R (A) v Secretary of State for the Home Department [2021] UKSC 37; [2021] 1 WLR 3931, at §46.

The EUSS scheme in the Immigration Rules and the problem with the applicable policy

As is well known, the EUSS scheme found in Appendix EU to the Immigration Rules provides for a new residence status (leave to remain) and accompanying documentation on application for EU citizens (and their family members) who were present prior to the end of the Brexit implementation period (11 pm on 31 December 2020). In a relaxation of WA requirements, the EUSS scheme provides for a grant of leave by reference to physical presence and does not insist upon an applicant exercising at any particular point a right of residence prescribed under EU law (e.g., as a Worker, Student, etc.) The policy in issue is one of a set that directs Home Office caseworkers as to the administration of the EUSS scheme and the processing of EUSS applications under it.

The problem with the policy is that it omits any instruction to consider the applicable EU law threshold test for refusal (public policy or public security, serious grounds of public policy or public security, or imperative grounds of public security) applicable to an EUSS application in hand before deciding to stay the prosecution. It omits to do so in circumstances where consideration of the threshold test may require a decision-maker to proceed and determine the EUSS application. Further, the policy omits any requirement to consider the application of the EU principle of proportionality. The policy tells Home Office decision makers how to consider EUSS applications but does not identify relevant legal rules they are obliged to consider, leading to decision makers being provided with a misleading picture of the true legal position.

The Applicant’s case

The EUSS applicant was a Polish citizen with four charges against him (all relating to conduct prior to the end of the Brexit transition period). He applied under the EUSS in September 2020. The Home office paused his application. As it transpired, in respect of three charges no action was taken. The fourth charge was for assault occasioning actual bodily harm, for which, on conviction, he received a forty-six-week custodial penalty.

However, the Applicant had been residing in the UK since 2006, a matter that at least gave rise to the need to consider which EU threshold test applied (as refusal-criteria are based on period of residence and on the nature of EU-qualifying activity, such as being a Worker, during that period). As the Home Office policy made no provision for its caseworkers to consider such matters, they were unable to ascertain the applicable standard and, thereafter, to assess whether the applicable standard for refusal was met.

The harm done was that such charges, on conviction, would lead to penalties being imposed of such modesty that that they would never meet the applicable threshold test for refusal of the EUSS application and, therefore, that application ought not be paused but rather determined.

By way of illustration on the facts of the case, the test of imperative grounds of public security (applicable to an EU citizen lawfully resident for the previous 10 years) will only be satisfied where a person has been convicted of the most serious criminal offending and poses a compelling, ongoing risk to public security, see VP (Italy) v The Secretary of State for the Home Department [2010] EWCA Civ 806 and Case C-145/09 Land Baden-Wurttenberg v Tsakoridis EU:C:2010:708 [2011] 2 CMLR 11.

In the instant case, the Applicant stated that, at the time of the decision to pause consideration of his application, he enjoyed imperative grounds protection and if convicted on one count of actual bodily harm any penalty imposed was not capable of meeting the relevant threshold for refusal and thereafter expulsion. Therefore, at the date that the pause of the EUSS application commenced, the Secretary of State would have known that the imperative grounds threshold could not be met. As it happened, by the time the Upper Tribunal gave judgment, not only had the Secretary of State refused the EUSS application but the Applicant had gone on to win his subsequent First-tier Tribunal appeal against that refusal on the basis that the applicable threshold for refusal was not met and that he was entitled to EUSS leave to remain.

Policies compared

In the case before the Upper Tribunal, it was accepted by the Secretary of State that an EUSS application had to be determined within a reasonable period of time. However, that was not a blank cheque to pause an application pending prosecution. The particular policy of pausing such applications at the outset where there was a pending prosecution did not take into account the need to assess the application in order to determine the applicable threshold test. Instead, it stated (EU Settlement Scheme: suitability requirements (v 8.0):

“Where the applicant has a pending prosecution which could lead to a conviction and a refusal on suitability grounds and does not otherwise meet the criteria for referral to IE [Immigration Enforcement] in respect of any other offence, you must pause the application until the outcome of the prosecution is known.”

In contrast, a previous version of the policy, EU Settlement Scheme: suitability requirements (v 4.0) appeared to conform to the applicable law:

“Where the applicant has a pending prosecution which could lead to a conviction and a refusal on suitability grounds and does not otherwise meet the criteria for referral to IE [Immigration Enforcement], in respect of any other offences, you must consider whether it is reasonable and proportionate for the application to be paused by UKVI pending the outcome of the prosecution.”

Judgment

In giving judgment, the Upper Tribunal held that, among other things:

“95. The design of the policy means that it is not possible to review an applicant’s length of residence in the United Kingdom and so identify the applicable threshold which would apply if convicted, prior to an application being placed on hold. Consequently, the stay is enforced where the decision-maker does not engage in fact-finding and does not have relevant facts to consider whether a stay is proportionate, takes no communicated or reasoned decision, and does not proactively invite representations from the applicant.”

“99. The pause policy in its present form is inconsistent with the requirements of Articles 18 and 21(1) of the Withdrawal Agreement. It leads to unwarranted and disproportionate delays to the processing of Article 18 Withdrawal Agreement applications.”

“103. The respondent retains considerable latitude in setting domestic standards, subject to properly respecting the three-tier hierarchy framework imposed by Union law. However, a pause or prosecution stay policy must be proportionate and reasonable.”

Consequences

As noted above, the Home Office have agreed to publish a replacement policy within three months (absent special circumstances). However, regardless of the progress it makes in doing so, the existing policy is quashed three months from the date of the Order in any event. Further, on publishing the replacement policy, the Home Office have agreed to review all paused EUSS applications as soon as practicable.