The “Pending Prosecutions” part of the EU Settlement Scheme: suitability requirements version 8.0 coverage, which offered for purposes to be paused the place there was a pending prosecution, has been held to be illegal by the Higher Tribunal. The case is R (Lukasz Krzysztofik) v Secretary of State for the Residence Division, JR-2021-LON-001727, with the Unbiased Monitoring Authority for the Residents’ Rights Agreements as intervenor.
Background: the coverage
A profitable software to the EUSS wants to fulfill the suitability necessities. The Residence Workplace has printed steerage on these, which features a part known as “Pending prosecutions”. This offers for purposes the place “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 [immigration enforcement] in respect of any other offence, you must pause the application until the outcome of the prosecution is known”.
The coverage additionally offered that purposes should be held for six months however might be progressed after that the place there have been no earlier convictions, just one pending prosecution and the utmost potential sentence if lower than 12 months. This wording was inserted into the coverage in model 5, earlier than this it mentioned that call makers “must consider whether it is reasonable and proportionate for the application to be paused”.
Background: the applicant
The applicant is a Polish nationwide who has lived within the UK since 2006. He utilized to the EUSS on 17 September 2020. At the moment he was ready for the end result of 4 fees, regarding pre-Brexit conduct. That timing is essential as set out in Abdullah & Ors (EEA, deportation appeals, process) [2024] UKUT 66 (IAC), which now we have written up previously.
Shortly after receiving the appliance, on 20 September 2020 the Residence Workplace paused the appliance pending decision of the prison proceedings.
Three of the costs have been resolved with out additional motion and the applicant pleaded responsible to the fourth one on 11 January 2021. That offence was assault occasioning precise bodily hurt and on 3 February 2022 he was sentenced to a custodial sentence of 46 weeks.
The judicial assessment
The applicant challenged the delay in making a call on his software for settled standing below the EUSS. His software was subsequently determined and refused on 27 Might 2022 and his enchantment in opposition to that refusal was profitable on 20 July 2023.
The judicial assessment additionally challenged the Residence Workplace coverage of pausing consideration of EUSS purposes the place the applicant had a pending prison prosecution. The grounds have been that the coverage didn’t permit for consideration of particular person circumstances and that it fettered discretion.
It was argued that the failure to take the size of an individual’s residence into consideration rendered the coverage illegal. Size of an individual’s residence is of big relevance as to the relevant legal threshold that might apply to any potential deportation choice. Due to this fact, to be able to decide whether or not the upcoming prosecution can be of any relevance to the appliance, size of residence ought to first be taken under consideration.
The Residence Secretary’s place was that “the pause policy enjoys a public interest function by protecting the integrity of the immigration system by ensuring that leave is not granted in circumstances where, by virtue of an individual’s criminality, it ought not to be”. The tribunal rejected this, saying “the policy in its present version extends to alleged conduct that, if proven, is not sufficiently likely to result in a conviction and deportation”.
Higher Tribunal Choose O’Callaghan reiterated the significance of getting a call on an software, stating that “Such status provides more than the ability to work, secure accommodation and, if permitted, secure access to social security benefits and to NHS services. It provides security of mind and confidence in future planning, which is absent when awaiting a decision on an application under the EUSS.”
He went on to permit the judicial assessment on the next foundation:
101. Absent from the coverage is the requirement for a decision-maker to think about the appliance of the Union precept of proportionality, which can require them to proceed and decide the appliance in a given case. Additional, it omits any instruction to think about the Union legislation threshold check relevant to the case in hand, earlier than deciding to remain consideration. A choice-maker ought to correctly be told that the brink check could require them to proceed and decide the appliance in a given check. I agree with Mr Burton’s succinct statement that the coverage is blind to at least one facet of the authorized query.
102. For the explanations addressed above, the current coverage fails to require a decision- maker to think about the next earlier than pausing an EUSS software. Firstly, to establish whether or not the applicant was exercising EU rights in the UK at 11p.m. on 31 December 2020, acquired everlasting residence and so the intense grounds threshold applies, and whether or not they have been lawfully resident for ten years in complete, with the crucial grounds threshold making use of. Having secured this data, a decision-maker can also be required to know whether or not, given the relevant threshold, the applicant might be refused go away to stay or settlement if convicted.
The choice to pause consideration of the applicant’s EUSS software was additionally held to be illegal because it was in breach of the Withdrawal Settlement.
Conclusion
The Residence Secretary has agreed to publish a alternative coverage inside three months and the order quashing the present steerage has been stayed till then. Following that, all purposes which were paused can be reviewed as quickly as potential. Permission to enchantment to the Court docket of Attraction was refused by the Higher Tribunal.
