R (K) v Secretary of State for the Home Department

An application for status under the EUSS requires the Secretary of State to assess an applicant’s suitability. The assessment is conducted on a case-by-case basis and is based on an applicant’s personal conduct or circumstances in the United Kingdom and overseas, including whether they have any relevant prior criminal convictions, and whether they have been open and honest in their application.

The Secretary of State’s policy at the relevant time provided for an EUSS application to be paused where there was a pending prosecution that could lead to a conviction and a refusal on suitability grounds, even if it did not meet the criteria for referral to immigration enforcement in respect of any other offence, until the result of the prosecution was known. A refusal on suitability grounds would occur where an applicant was subject to a deportation order or a decision to make a deportation order.

The Upper Tribunal found that the Union principle of proportionality clearly applied to the determination of EUSS applications by virtue of Article 4(3) of the Withdrawal Agreement as applied to Article 18. The Secretary of State’s pause policy applied to alleged conduct that, if proven, is not sufficiently likely to result in a conviction and deportation. It also did not permit the review of an applicant’s length of residence in the UK so as to identify the applicable threshold which would apply if convicted ie. serious or imperative grounds of public security. The Upper Tribunal therefore found that this “pause policy” was unlawful as it directed the stay of applications in cases where a stay was not justified by the nature of the criminality given the relevant threshold and the requirement that the stay be proportionate. Accordingly, “pause policy” was inconsistent with the requirements of Article 18 and Article 21(1) of the Withdrawal Agreement and led to unwarranted and disproportionate delays in the processing of applications.

The Upper Tribunal found that the operation of the pause policy did not offend the interim protection provided by Article 18(3) of the WA by introducing uncertainty. This was because the certificate of application issued immediately upon an application to EUSS was authoritative and could be used to prove enjoyment of residence rights until the application had been finally determined, notwithstanding that it was the final residence status which provided security of mind and confidence in future planning.

Tom de la Mare KC and Naina Patel acted for the Independent Monitoring Authority (the “IMA”), exercising its right to intervene pursuant to the European Union (Withdrawal Agreement) Act 2020, Schedule 2, paragraph 30, instructed by Lisa Salkeld for the IMA.