The King on the application of Here for Good (Claimant) and Secretary of State for the Home Department

On 12 February 2024, Here for Good issued judicial review proceedings against the Secretary of State for the Home Department on the basis that the EU Settlement Scheme (EUSS) contravenes the Withdrawal Agreement. We argue that applicants to the EUSS should have a right of appeal against any rejections of late applications as invalid. The judicial review was lodged in the High Court of Justice (Administrative Court, King’s Bench Division) and on 22 March 2024, Mr Justice Swift of said court granted permission. The case is listed to be heard on 18 June 2024 at the Royal Court of Justice. 

Our challenge relates to the operation of the EU Settlement Scheme (EUSS), the mechanism by which the UK implements its obligations relating to immigration under the Withdrawal Agreement. The Withdrawal Agreement guarantees EU, EEA and Swiss citizens (EU+) and their family members the right to continue to live, study, work and travel freely between the UK and the EU. To benefit from the protections under the Withdrawal Agreement, EU+ citizens must have commenced a continuous qualifying period of residence in the UK before the end of the transition period (11pm on 31 December 2020).

Under Article 18 of the Withdrawal Agreement, the deadline for applying for residence status was 30 June 2021. Where this deadline is not met, the Withdrawal Agreement sets out that the application procedure is still available to the applicant, but in this case, they must have had “reasonable grounds” for applying late.

Through our casework, Here for Good continues to support EU+ citizens and their family members to submit late applications to the EUSS. We have seen hundreds of cases involving extremely compelling circumstances that led to applicants submitting their applications late to the scheme. 

On 9 August 2023 the Home Office implemented changes to the Immigration Rules that require the ‘reasonable grounds’ consideration to be undertaken at the validity stage of an application. This means that where the Home Office does not accept that a person has reasonable grounds for applying late, the application will be rejected as invalid, and that decision does not, in the Home Office’s opinion, come with a right of appeal. This change has had wide ranging consequences for many EU+ citizens and their family members, who otherwise meet the criteria for status under the EUSS.  Between August and November 2023, we saw large numbers of applications rejected as invalid, with very little or no reasoning as to why the application had been rejected. The only way to challenge these decisions is by way of Judicial Review because the rejection decision does not, according to the Home Office, come with a right of appeal. 

Many pre-action protocol letters were sent on behalf of those referred to Here for Good to challenge their invalidity decisions. In every single case, the applications were reinstated by the Home Office, which meant that after sending the pre-action protocol letter, the Home Office accepted that the applicant did in fact have reasonable grounds for applying late. This meant that it was not possible to issue Judicial Review proceedings in any of these individual cases. The Home Office has released data confirming that in December 2023, 16,760 late applications were received, and 6,590 of those applications were found to be invalid. 

Here for Good’s Judicial Review Challenge 

Here for Good took the decision to issue judicial review proceedings as an NGO on this systemic issue. 

As a small organisation, we are only able to assist a limited number of late applicants to submit pre-action protocol letters challenging the Home Office’s invalidity decisions. This means that for thousands of individuals who are not supported by charities or law firms, an invalidity decision can result in eligible applicants and their families being wholly excluded from applying to the EUSS because the Home Office does not consider that they have reasonable grounds for applying late, and are consequently potentially subject to removal from the United Kingdom. 

Having obtained counsel’s advice, we are of the view that the changes to the Immigration Rules breach the Withdrawal Agreement, because there is a failure to recognise and notify applicants of their right to appeal against a decision not to consider their application (which we consider is a breach of Article 18(1)(r) and Article 21 of the Withdrawal Agreement, and Article 47 of the EU Charter).

We hope that by challenging this issue as an NGO, we will be able to create broader change for those applicants that Here for Good is not able to represent through our casework.

In our challenge, we contend that many applicants who we have supported did in fact have reasonable grounds for applying late to the EUSS, and that invalidity decisions were wrongly issued. We provided at least fifteen individual case studies as evidence for our NGO challenge showing that the Home Office agreed to reinstate applications and issue certificates of application for applicants after pre-action protocol letters were sent.  

Late applicants have often experienced homelessness, language barriers, or have had a lack of awareness about the EUSS scheme in general. Some applicants paid large sums to unqualified advisers to assist them in regularising their statuses, resulting in ultimately unsuccessful applications due to poor or incorrect advice. The Home Office guidance which sets out what it considers to be ‘reasonable grounds’ initially published  on 9 August 2023 is extremely restrictive, and does not allow for such scenarios. Very particular fact patterns are set out in the guidance which the Home Office deems to constitute reasonable grounds for late applications, although there are some discretionary caveats to allow for case-by-case analysis. Despite this, many invalidity decisions often cursorily refer to the fact that a reason provided by an applicant does not constitute reasonable grounds, with no further explanation as to why this decision has been made.  

We consider that those with reasonable grounds should continue to be able to apply late to the EUSS. If the parameters of what constitutes a reasonable ground for applying late continue to narrow arbitrarily, Here for Good’s biggest concern is that in the future, large sections of EU+ citizens and their family members who continue to be protected by the Withdrawal Agreement will be excluded from the possibility of regularising their status in the UK. We consider that the Withdrawal Agreement offers a right of appeal to those whose applications are rejected as invalid. 

On 22 March 2024, Mr Justice Swift granted permission to apply for judicial review, including a costs capping order of £10,000. This means that if Here for Good loses the claim, we will be required to pay the other side’s costs of up to £10,000. If you are able to contribute anything towards our CrowdJustice fundraiser to ensure we can take this challenge forward, we would be very grateful indeed. We are currently awaiting the full hearing, which will take place on 18 June 2024.