The EU Settled Status Scheme, under Appendix EU to the Immigration Rules, opened to all applicants on 30 March 2019.
Many EEA nationals and their family members have applied under the scheme, with a large proportion of Settled Status applications being granted. Many have also been granted pre-Settled Status where they have not been in the UK long enough to have obtained Settled Status. However, many have been granted pre-Settled Status, or have had their applications refused on eligibility grounds, in error.
The impact of incorrect decisions is potentially very serious as it could mean that EEA citizens and their family members’ right to reside and access to services are affected. But how can decisions under the Settled Status Scheme be challenged?
What options are available for challenging a Settled Status decision?
Unfortunately, there is not presently a right of appeal against Settled Status decisions. However, not all hope is lost, and there are other options for challenging erroneous decisions.
It is always open to an applicant to submit a fresh application. However, some applicants have found themselves facing the same issues with the application process as with their previous applications, resulting in more refusals. In these circumstances, you may wish to consider Administrative Review.
Applicants are also entitled to an Administrative Review of the decision in certain circumstances, as I have set out below. It should be noted, however, that, Administrative Review is not available to challenge a refusal on suitability grounds.
As with all decisions made by public bodies, applicants are entitled to challenge decisions by way of Judicial Review. However, as this blog explains, Judicial Review is not a full review of a decision, but is an assessment, by a judge, of whether the decision was procedurally and legally correct.
What is Administrative Review?
Administrative review is an internal mechanism for the Home Office to review decisions. The decisions are reviewed by a different decision maker, however it is still considered by a Home Office employee. They review the decision, and check it for errors. If the reviewing decision maker determines that the decision contains errors, then the decision can be changed or overturned.
The grounds for seeking Administrative Review include:
- the original decision-maker failed to apply, or incorrectly applied, Appendix EU;
- the original decision-maker failed to apply, or incorrectly applied, the published guidance in relation to the application; and
- there is information or evidence that was not before the original decision-maker which shows that the applicant qualifies for a grant, or a different grant, of leave under Appendix EU.
The final ground specified is interesting. Applicants can provide further evidence to the Home Office following the refusal of their application or a grant of pre-Settled Status, and the Home Office will consider it. This does not appear in the Administrative Review principles under Appendix AR where the reviewer will not consider any evidence that was not before the decision maker, except in certain circumstances. Only under Appendix AR (EU) is it permitted for further documents to be put before the administrative reviewer.
Who can apply for Administrative Review of a Settled Status decision?
Applicants will receive notice on their decision letters if they are eligible to apply for Administrative Review. There are two types of decisions which are eligible for Administrative Review:
- Decisions to refuse the application under paragraph EU6 of Appendix EU because the applicant does not meet eligibility requirements for indefinite leave to remain (Settled Status) or leave to remain (pre-Settled Status); and
- Decisions to grant an applicant limited leave to remain (pre-Settled Status) instead of being granted indefinite leave to remain (Settled Status).
Interestingly, where applicants are granted pre-Settled Status instead of Settled Status, they are not provided with a refusal letter setting out the reasons for the alternative grant of leave. There is concern that, as a result, many applicants may simply accept pre-Settled Status when they are actually legally entitled to Settled Status. If you are granted pre-Settled Status, you should consider whether you are entitled to Settled Status.
Applying for Administrative Review of a Settled Status decision
Applicants have 28 days to apply for an Administrative Review of the decision and applications for Administrative Review can be made online, either in the UK or from abroad.
Applications cost £80 per application, though there are fee exemptions in certain circumstances. If the application is successful, this fee will be refunded in full. However, the fee will not be refunded if the application was successful due to the provision of new evidence by the applicant that was not before the initial decision maker.
Although Administrative Reviews are an internal Home Office mechanism, they can offer a review of the decision which would provide a result more quickly than an appeal would. There is also the added benefit of being able to provide further evidence to be considered with the application, which is not permitted under Appendix AR (as mentioned above).
Chance of success and potential outcomes
A recent freedom of information request response confirmed that 451 requests for Administrative Review of Settlement Scheme decisions had been received, and of the 325 that have been decided, 89.5% were successful. This is a high turnover rate, which may be due to the fact that Administrative Reviews of EU Settlement Scheme decisions permit further evidence to be provided.
Judicial review of a Settled Status decision
Judicial review is different to Administrative Review and appeals. It is an independent review by a judge which can only take place if neither an appeal or Administrative Review is available; it is a remedy of last resort. Therefore, you would need to have exhausted your right to Administrative Review before considering judicial review.
Judicial review, however, is a complex and time-consuming process. How quickly your case will be dealt with is completely dependent on the capacity of the court considering your case. It could be months before a decision is made on your case, or even before you receive a response from the Home Office as to their assessment of your case against them. This is not particularly attractive for decisions under the Settled Status Scheme given the relative uncertainty caused by Brexit.
As judicial review is also not a review of the conclusion of a decision, but of the decision-making process, it means that notwithstanding a judge determining that a decision was made unlawfully, the Home Office could reach the same conclusion following the reconsideration. This is why well-drafted grounds and an appropriate bundle are essential preparation for judicial review, though you are not permitted to include further evidence which was not before the decision maker.
You should, therefore, consider carefully whether judicial review is the appropriate avenue for you and whether, actually, a fresh application would be more appropriate in your circumstances.