This blog was written by Dr Leandro Mancano of the University of Edinburgh’s Law School. As with all guest blogs, what follows are the views of the author, not those of SPICe or the Scottish Parliament.
To prepare for the UK’s withdrawal from the EU, the UK Government set up a registration system for EU, EEA and Swiss nationals: the EU settlement scheme. The scheme was launched in pilot form in 2018 and became fully operational in 2019.
Concerns have been expressed about the functioning of the scheme and also whether it will effectively protect people’s rights – these include, amongst other things, the UK Government’s decision to not offer a physical document as proof of settled status.
Arguably, alarm has been at least partly fueled by statements from members of the previous UK Government around possible deportation for failure to comply with administrative procedures. This has recently been aggravated by reported cases of detention of EU citizens at the UK’s border. Relying on recent statistics, the view of the UK Government is that the scheme has been a success. Before the end of the transition period, however, the EU’s ambassador to the UK had raised the issue of ensuring that settled status is available to EU citizens who are outside the mainstream (e.g. prisoners and minorities).
Although there has been a lot of discussion about the workings of the settled status scheme, less has been said about the way in which applications can be refused if someone has a criminal record (for one of the exceptions, see the charity Unlock’s briefings “EU nationals, settled status and criminal records” and “Settled status: what you need to know if you are an EU citizen and have a criminal record”). This blog considers some of the issues in this area.
Settled Status and Pre-settled Status
EU, EEA and Swiss citizens can apply for either pre-settled or settled status. Applications have to be made by 30 June 2021.
Applications can be submitted via a smartphone app and completed by answering a series of questions and taking specific actions (e.g. scanning one’s passport, providing a digital photo to prove identity and proving UK residence).
To acquire settled status, applicants must have started living in the UK by 31 December 2020 and have lived in the UK for a continuous five year period (known as ‘continuous residence’). Periods of less than six months outside the UK don’t affect continuous residence and other exceptions exist.
Those who haven’t yet lived in the UK for five years can apply for pre-settled status.
Applications can be refused on “suitability grounds” which the Home Office guidance states:
“must be conducted on a case by case basis and be based on the applicant’s personal conduct and circumstances in the UK and overseas, including whether they have any relevant prior criminal convictions.”
Both settled status and pre-settled status give people the right to remain in the UK. However, settled status creates what is called “Indefinite Leave to Remain” (in principle forever) whereas pre-settled status provides less rights and only gives rise to “Limited Leave to Remain” for a period of five years. An application to change pre-settled status to settled status can be made once an applicant has five years’ continuous residence.
Criminal records – false or misleading information
Rule16(a) EU Appendix of the UK’s Immigration Rules states that an application may be refused where the applicant – knowingly or not – has submitted false or misleading information.
The Home Office guidance indicates that dishonesty or deception must be shown for an application to be refused on this ground. It also states that any false/misleading information must be material to the decision whether or not to grant settled or pre-settled status and that any refusals must be proportionate. The failure to disclose a conviction is considered relevant in this context.
This might mean that a failure to disclose a previous minor conviction would not necessarily lead to a refusal. However, it is not clear whether this would hold for more serious offences, or convictions which the applicant mistakenly believed were ‘spent’.
Criminal records – suitability grounds
While refusals should not be made where the information is incorrect or incomplete but the applicant has made a genuine error, the application must still be considered for refusal on eligibility grounds. For example, an application will be refused if the EU citizen is subject to a deportation order.
For criminal conduct which occurred after the UK left the EU (23:00 GMT on 31 December 2020), a refusal can be based on the much broader UK ground that that is conducive to the public good. In contrast, refusals for pre Brexit conduct have to be based on the more stringent EU test (the existence of a serious and present threat to a fundamental interest of society – see Rule15 EU Appendix of the UK’s Immigration Rules). For conduct which occurred both before and after 31 December 2020, the Home Office guidance leaves discretion as to the application of either of the tests.
Continuity of residence and applications by prisoners
Criminal conduct (and failure to disclose it) can also affect eligibility under the ‘continous residence’ criterion.
There is a presumption under EU and UK law that a prison sentence, deportation or exclusion order breaks the required continuous residence, although factors such as the seriousness of the offence and the strength of the applicant’s links with the UK must be considered.
If a prisoner was released before the end of the transition period (and does not already have five years continuous residence), the residence clock would, therefore, start from scratch but they would at least be able to apply for pre-settled status.
It remains to be seen, however, what will happen to EU citizens who are currently still in prison. At the moment, it is not clear how accessible applications for leave to remain for EU citizens in detention are, and the decisions will be made by the Home Office in light of the wide discretion at its disposal.
The above sheds light on how problematic applications for settled and pre-settled status can be when it comes to criminal behaviour and brings to the fore the urgent need for much more clarity from the UK government in this regard.
Further details are highlighted in the policy briefings by Unlock mentioned above.