Here for Good is also working on strategic litigation to
challenge the Government’s unlawful policies.
We recently worked on a successful legal challenge of the Government’s harsh guidance on COVID-19 related absences, which positively impacted many thousands of European citizens and their family members.
We'd like to thank all of our crowdfunding supporters who made this action possible.
"I have the privilege of acting for Here for Good in their judicial review of the EUSS Covid-19 guidance, which was restrictive and discriminatory. The government withdrew the guidance following Here for Good’s legal challenge. It takes a bold and dynamic charity to step up to be the claimant in a systemic judicial review, and it is a massive credit to Here for Good’s board and staff that the challenge happened and was so impactful.”
– Ollie Persey, Barrister at Garden Court Chambers
EUSS COVID-19 GUIDANCE
In March 2021, Here for Good launched a legal challenge against the Government over its EUSS Covid-19 Guidance.
Strict Home Office guidance stated that EU citizens applying to the EU Settlement Scheme (EUSS) must have been ‘self-isolating’ for COVID-19 to count as an ‘important’ reason for an extended absence from the UK of between 6-12 months. If an EU citizen’s extended absence is not for an ‘important’ reason, they may receive a more precarious immigration status or be disqualified from applying to the EUSS entirely.
Our legal team included Here for Good's lawyers, the team at Bindmans LLP, Counsel Charlotte Kilroy QC, Hollie Higgins (both Blackstone Chambers) and Oliver Persey (Garden Court Chambers). Following our legal action, the guidance was withdrawn by the Home Office on 6 May 2021. The Home Office informed Here for Good and the Court that new guidance will be published by 31 May, but on May 28, we were informed the guidance was delayed, and would now be published by 11 June, just 19 days before the EUSS deadline. Our legal team remains in correspondence with the Home Office to ensure the new guidance is published as soon as possible.
You can find the latest updates on the case below:
The issue of absences is very important, as continuous residence in the UK is a key criterion for eligibility to the EU Settlement Scheme (“EUSS”). In the original guidance, published on 15 December 2020, the Home Office set out that absences related to the coronavirus pandemic would be accepted only in limited circumstances and where they amounted to a single period of no more than 12 months.
Concerned about the impact this guidance would have on EEA nationals and their family members being able to secure their residence rights in the UK post-Brexit, and in light of the Covid-19 pandemic, Here for Good sought to challenge the guidance. Here for Good was particularly
concerned that the guidance unlawfully penalised people who were elderly or clinically vulnerable (or those whose relatives were vulnerable in this way), those who had sought conscientiously to comply with public health guidance by avoiding non-essential travel, and those caught up in local restrictions or travel disruption.
On 12 March 2021, an application for judicial review was lodged to challenge the guidance, seeking its withdrawal. On 6 May 2021, the guidance was withdrawn, and on 10 June 2021, the new guidance was published. The new guidance is an interim measure until Appendix EU can be amended accordingly.
THE NEW GUIDANCE
Under Appendix EU of the Immigration Rules, ‘continuous residence’ means a period of unbroken residence in the UK. Ordinarily, continuous residence will be broken if you are absent from the UK for more than six months in any 12-month period, except where you have a single period of absence which does not exceed 12 months and it is for an important reason (such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting), or Crown Service, compulsory military service or time spent working in the UK marine area.
The new guidance acknowledges that there are circumstances, due to the Covid-19 pandemic, where people may have been absent for longer than is permitted under Appendix EU. In these circumstances, a person’s continuity of residence will not be treated as having been broken by the excess absences. The new guidance identifies the following scenarios:
1. Where a person intended to be absent for less than 6 months, but exceeded this for up-to 12 months due to Covid-19 pandemic
Under the new guidance, where a person intended to be absent for no more than 6 months, but exceeded this because of the Covid-19 pandemic, they will not be treated as exceeding the absences permitted under Appendix EU.
Examples of what Covid-19 related reasons could be are provided for in the guidance, but it is made clear that the list is non-exhaustive. The examples provided are very broad and include situations where individuals chose to leave or to remain outside of the UK because of the pandemic. Applicants to the EUSS will need to provide evidence in support of their applications and Home Office caseworkers will consider applications on a case-by-case basis.
2. Where a person has been absent for up to 12 months for an ‘important reason’
As with scenario one above, individuals who have been absent from the UK for up to 12 months will be able to rely on Covid-19 as an ‘important reason’. It will be necessary for the individual to show that the absence was related to Covid-19. The list of potential examples is the same as option one, and again includes situations where the individual chose to leave or remain overseas due to Covid-19.
3. Where a person has been absent for an ‘important reason’ but exceeded 12 months as they were prevented from or advised against returning to the UK earlier due to Covid-19
Ordinarily, absences in excess of 12 months will break a person’s continuity of residence in the UK. However, the new guidance confirms that absences in excess of 12 months can also be considered as an ‘important reason’ under Appendix EU where they are Covid-19 related.
It is important to note that the list of examples of when this concession can be relied upon are narrower than those available to individuals who have been absent for less than 12 months; it is limited to when the person was prevented from, or advised against, returning to the UK earlier. Furthermore, even though the absence is permitted, any period over 12 months will not be counted towards their qualifying period of residence for settled status. Their residence will effectively be paused once their absence reaches the 12-month mark, and restart when they return to the UK.
For example, P has pre-settled status and 1 September 2022 marks his five-year anniversary of residence in the UK. P was absent from the UK from 1 January 2020 until 1 June 2021, for reasons fitting into this category. P’s residence will not be broken by his absence, even though it is longer than 12 months. However, P’s residence from 1 January 2021 until 1 June 2021 would not count towards the 5-year period of residence required to qualify for settled status. Practically, P could not apply for settled status by 1 September 2022 as anticipated. P would have to apply for a further grant of pre-settled status and make up the 6-month excess period of absence before qualifying for
As with the other scenarios above, examples of reasons are provided but the list is non-exhaustive and caseworkers will consider applications on a case-by-case basis.
4. Where a person has already been absent for up to 12 months for an ‘important reason’, but needs to be absent again, and one of the absences is for a Covid-19 related reason
This is allowed, and either period of absence can exceed 12 months in accordance with the scenario above. That said, only 6 months of the second period of absence will be considered as residence for the purposes of settled status applications. As in the scenario above, any excess period of absence will pause residence until the person returns to the UK. Such a person could also apply for a further
grant of pre-settled status as above.
The guidance is intended to benefit a number of different categories of individuals, not just those who have already applied to the scheme. It also applies to:
Those whose pre-settled status has lapsed due to an absence of over 2 years due to the Covid-19 pandemic; and
Those who have not yet applied under EUSS but were resident in the UK by the end of the transition period (11pm 31 December 2020).
With all scenarios above, the applicant will be expected to submit evidence in support of their application to demonstrate the reason for their absences. The new guidance provides examples of evidence that could be provided, which includes (but is not limited to) confirmation of flight
cancellations, a doctor’s letter, a letter from employment/university etc.
Please note that for most applicants, the EUSS deadline was on 30 June 2021. That said the Home Office will accept late applications where there are ‘reasonable grounds’ for the delay.
For more information, see here.
It is also important to note that individual will continue being able to upgrade their pre-settled status into settled status once they are eligible. Further that, the new guidance can be relied upon for such applications if they had coronavirus-related absences from the UK.
POLICY CHALLENGE: PENDING PROSECUTIONS
Here for Good is working on challenging the pending prosecutions guidance found in the EU Settlement Scheme: Suitability Requirements guidance document updated on 6 April 2021. We have received funding from ILPA’s strategic legal fund to carry out this work.
The guidance has been drafted in a way that allows the Home Office to pause any application for pre-settled or settled status where the person has a pending prosecution or is under police investigation. In practice, this means that where a person is charged with an offence that could lead to a sentence of a term of imprisonment, that application can be put on hold indefinitely until the trial has been held and the verdict is known. We are now seeing trial dates being scheduled for 2022, where the alleged offence took place in 2018, due to delays in the criminal justice system which have been compounded by Covid-19.
Furthermore, we are seeing numerous applications being paused for months on end. This situation is having a serious impact on people in very different positions. As well as affecting the individual’s mental health, it is impacting their ability to access benefits, and in some circumstances their right to work and to attend university. It is important to note that an application for pre/settled status should only be refused where the person is subject to a deportation order which is a very high threshold and so these delays are often entirely disproportionate.
If your application has been paused as a result of a pending prosecution or police investigation then please do get in touch with us as we may be able to assist.