Post Brexit Changes
The law following the UK’s exit from the EU is complex. This Handbook therefore sets out two of the most important legal developments namely, the Withdrawal Agreement and the EU Settlement Scheme.
The Withdrawal Agreement
The Withdrawal Agreement agreed between the EU and the UK establishes the terms of the UK’s withdrawal from the UK and is a comprehensive document addressing matters such as citizen’s rights, money and dispute resolution. Its protection is especially strong for those who were exercising free movement rights under EU law before the specified date (11pm on 31 December 2020).
Importantly for those facing deportation, the Withdrawal Agreement is clear that where someone’s “conduct” (or actions) giving rise to the deportation decision took place prior to the specified date, then EU law principles (which are far more generous than UK deportation provisions) apply. So, for someone who had permanent residence in the UK under EU law and committed an offence before the specified date, the Home Office must establish that there are “serious grounds of public policy and public security” before they can be deported, making it more difficult to remove them and potentially making their detention unnecessary and disproportionate because of this. For more information, please see the Home Office’s current policy titled, “Public Policy, public security or public health decisions.”[1]
EU Settlement Scheme
EEA nationals and their family members (before the specified date) are required to apply for leave to remain in the UK under the EU Settlement Scheme (‘EUSS’). The requirements are contained in Appendix EU of the Immigration Rules and applications are free of charge. If successful, the individual may be granted pre-settled status (residence for five years) or settled status (indefinite leave to remain).
In order to benefit from the EU Settlement Scheme, the EEA national must meet certain “suitability” and “eligibility criteria,” including being a resident in the UK prior to 31st December 2020. The government allowed individuals to make EUSS applications until 30th June 2021 however, late applications can still be made provided the individual demonstrates that there are reasonable grounds for the delay in applying. The Home Office’s present guidance[2] states that reasonable grounds may include situations where an individual lacks the physical or mental capacity to apply, where they have a serious medical condition which prevented them from applying and other compelling practical or compassionate reasons. Reasonable grounds might also include an individual being detained and/or in prison however, whether this is accepted will depend on the Home Office’s assessment. It is therefore possible for people in detention who have not yet made an application under the EU settlement scheme to still be granted some form of leave if they apply now and cite reasonable grounds for doing so late.
When an individual makes an application under the EU Settlement Scheme, this will constitute a barrier to removal according to the Home Office’s own published policy.[3] Therefore, the Home Office should not attempt to remove individuals with an outstanding EUSS application. There are delays with EUSS decision-making[4] so if an EUSS application is made by a person detained, it may be that the Home Office is unlikely to remove them within a reasonable period of time, therefore increasing the chances of them being granted bail.
“Public Policy, public security or public health decisions.” (Version 7.0) (30 September 2022) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1109258/EEA_public_policy_and_public_security_decisions.pdf
Home Office: “Apply to the EU Settlement Scheme (settled and pre-settled status)"
Home Office ‘Conducive Deportation (Version 2.0) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1162517/Conducive_Deportation.pdf (published on 8 June 2023)[p.22]
The 3 Million: EU Settlement Scheme Statistics - here.
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