What if someone applying to the European Union Settlement Scheme (EUSS) has a pending prosecution against them at the time of application? To answer this question, Home Office decision makers have previously used the EU Settlement Scheme: Suitability Requirements guidance (last updated 11 June 2024). However, the Upper Tribunal has now found that one section of the guidance (specifically ‘Pending prosecutions’) is unlawful.
The guidance defines a ‘pending prosecution’ is when a person has either:
- has be en arrested or summoned in respect of one or more criminal offences and one or more of these offences has not been disposed of either by the police or the courts, or
- is the subject of a live investigation by the police for a suspected criminal offence
The guidance continues,
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…in respect of any other offence, you must pause the application until the outcome of the prosecution is known.
This means the Home Office delays making a decision on EUSS applications – for however long – where the Applicant meets the criteria described above. However, the recent case of R (Lukasz Krzysztofik) v Secretary of State for the Home Department, JR-2021-LON-001727 successfully challenged this policy.
The Applicant, a Polish national, applied to the EUSS on 17.09.2020. A few days later, the Home Office paused his application because the Applicant had four pending criminal charges against him. Three of the charges were subsequently dropped, but the fourth led to a sentence on 03.02.2022 for the duration of 46 weeks. On 27.05.2022, almost two years after the application had first been submitted, the Applicant finally got a decision: a refusal. However, he subsequently appealed successfully.
As his EUSS application had been pending for some time, the Applicant challenged the delay via judicial review. His lawyers submitted that the policy did not consider individual circumstances, but instead forced all applicants to wait if they had pending prosecutions. This fettered (limited) the Home Office’s ability to exercise discretion in particular cases. Furthermore, the Applicant had been living in the UK since 2006, and his lawyers submitted that the amount of time a person has been living in the UK should have been considered (as it would affect any potential deportation proceedings). Because of it had not been considered, or properly considered, they submitted that the policy itself was unlawful.
The Home Secretary dismissed these points by explaining that the policy was in the “public interest” since caseworkers can avoid making a decision (and potentially granting leave to remain) to individuals with criminal proceedings against them.
However, the Upper Tribunal disagreed. In Judge O’Callaghan’s judgement dated 03.07.2024, the policy was too strict; it applied to “alleged conduct” and significantly impacted Applicants’ ability to work, secure accommodation, or access social security and NHS. Furthermore, it breached the Withdrawal Agreement (which the UK entered into when leaving the European Union). Judge O’Callaghan explained this was because the policy was “incompatible with the Withdrawal Agreement’s requirements of individual, fact-based and proportionate decision-making in a reasonable time.”
As a result, the Home Office must publish a replacement policy within the next three months and review all paused EUSS applications, regardless of whether they have a pending prosecution.
By Tiffany Carpenter
17.07.2024