EU Settlement: Delays, Appeal Rights and Withdrawal Requests

With the introduction of the EU Settlement Scheme, one of the expected hallmarks of the App / online based application was speed and efficiency in decision-making. However, the problem of delay in decision-making has crept into the system significantly frustrating both the practical day to day life of applicants, and posing significant legal dilemmas.

According to the Home Office, it normally takes around five working days for complete EUSS applications to be processed if no further information is required, but it can take up to a month. An EUSS application is likely to take longer than a month to process if:

There is a need to request more information;
Where a minor is applying, and the application is not linked to an adult;
Where a paper-based application is submitted;
Where there is a relevant criminal record; or
Where a non-EEA national applicant is applying based on a relationship that he or she has not relied upon in a previous application to the Home Office.

In such circumstances, Home Office processing times will vary on a case by case basis, based on all the circumstances of each individual case.

However, what this process clearly did not envisage is where an application will take more than twelve months without a decision being made. This seems to be the case with an increasing number of these applications.

The consequences for affected applicants include an anxious wait for a decision; lack of ability to obtain employment or access other services due to lack of documentation; inability to travel overseas even for EEA nationals who are concerned that they may be refused admission to the UK due to previous convictions – a phenomenon that is happening with increasing frequency, etc. A particular cohort of applicants subject to extended delays are applicants who had entered the UK with a validly issued EEA family permit such as spouses, children or other relatives. It is difficult to comprehend the reason for or justify the delay in those circumstances since the family relationship and entitlement had only just been verified with the issuance of an EU family permit.

Appeal rights:

An aspect of the process where the delay in issuing a decision does have implications is with regards to appeal right. Currently, valid applications under Appendix EU made on or after 11 pm on 31 January 2020 will attract a right of appeal against a decision to refuse the application on eligibility or suitability grounds or to grant pre-settled status where they believe they qualify for settled status. Therefore, applications submitted prior to 11 pm on 31 January 2020 will not attract a right of appeal. It is common knowledge that Administrative Review is not an adequate remedy in comparison to appeal before the First Tier Tribunal.

In circumstances where an applicant submitted an application prior to 31 January 2020, and such an application has been significantly delayed, an advisable option, particularly in cases involving criminality (suitability grounds) may be to withdraw the pre-31 January 2020 application, and resubmit same, in order to have recourse to appeal in the event of a refusal.

Withdrawal:

What has now become evident is that the process of withdrawing an EUSS application is complicated, and can take at least three to eight weeks to conclude. The first step will be to contact the EU Resolution Centre, who will then talk you through the process of submitting a request to withdraw the application online. You will be advised that the process might take up to three weeks for a caseworker to respond to your request. You will thereafter receive an email advising you that your request to withdraw your application had been received, and will be passed on to a caseworker. You will be advised that you must wait to hear from the caseworker, and follow their instructions when prompted, and you must allow for fifteen full working days after the caseworker has confirmed the withdrawal of the application before submitting a new one. What is significant is that you cannot submit a fresh application using the same ID documentation unless your request to withdraw the application is first approved by a caseworker, and then you wait another three weeks to do so. Evidently, such a cumbersome process of withdrawing an application may defeat the purpose for which a withdrawal is sought in the first instance. One would expect that the Home Office will in due course review its withdrawal process, as this does not align with the overriding interest of a scheme that is designed to be quick and easy to use.

Be that as it may, applicants whose circumstances are reasonably complex, or who find themselves subject to significant delay by the Home Office can contact our immigration team at Drummond Miller, as we have extensive experience with this type of application, and we are more than willing to assist.