The position is becoming clearer for EU citizens in the UK, at least in terms of future EU Citizens’ rights and immigration rights in the UK.
The UK-EU Withdrawal Agreement sets out rights for those who fall within its scope by the end of the transition period (31 December 2020). Appendix EU of the Immigration Rules sets out the scheme for granting leave to enter or remain in the UK for those qualifying for Settled Status or Pre-Settled Status. Finally, the European Union (Withdrawal Agreement) Bill makes provision to implement and supplement the Withdrawal Agreement in UK law.
What does all this mean however for those EU nationals who have a criminal conviction in the UK (or overseas) or indeed for EU nationals who find themselves falling foul of the law post-Brexit?
EU Settled Status Scheme (EUSS)
The EUSS provides a form of indefinite leave (in case of settled status) or limited leave (pre-settled).
The first thing to note is that the EUSS is an application and, like all applications, it can be rejected or refused. Both settled and pre-settled staus can also be lost due to personal conduct (or absence from the UK).
The EUSS has three core criteria: (i) Identity (confirmed through ID documents); (ii) Eligibility (length of residence); and (iii) Suitability.
Criminal records, or “criminality” in Home Office language, feature heavily in the suitability requirements (the other is deception) and seemingly form the main basis for refusal (the latest Home Office figures show only 6 people have been refused EUSS, all on the basis of serious criminality)
The EUSS suitability checks involves asking applicants to self-report any criminal convictions that appear in their criminal record in the UK or overseas. Applications are then checked against the Police National Computer (PNC) and the Warnings Index (WI).
It is not clear why applicants have to self-report when their forms are checked anyway, beyond deception forming a separate basis for refusal. Children under 18 for instance are not required to disclose any criminal convictions – no matter how serious – in the online application app, but anyone over the age of 10 is subject to the database checks.
The Online guidance says: ‘If you are 18 or over, the Home Office will check you have not committed serious or repeated crimes, and that you do not pose a security threat.’ See here.
Applicants are told they don’t need to declare spent convictions, cautions or alternatives to prosecution, such as speeding fines. People will still be eligible for settled or pre-settled status even if convicted of a minor crime, whilst other convictions are to be decided on ‘a case-by-case basis’.
An application will be refused where, at the date of the decision:
- The applicant is subject to a deportation order or to a decision to make a deportation order; or
- The applicant is subject to an exclusion order or exclusion decision.
Importantly, the guidance also makes clear that where a person was previously considered for deportation but deportation was not pursued (or withdrawn or also where a tribunal has ruled the deport unlawful), they will not now be considered for deportation – EU Settlement Scheme public beta phase: suitability requirements (Version 1.0, 21 January 2019).
How will applications be decided/refused in practice?
An initial assessment of suitability is conducted by UK Visas and Immigration (UKVI) from information provided by the applicant and obtained via the PNC and WI checks. A decision is then made as whether a referral should be made to Immigration Enforcement (IE) for consideration of the individual’s conduct under the public policy and public security test as set out in the EEA Regulations 2016 (the UK legislation implementing the Citizens Directive).
Applicants will be referred by UKVI to Immigration Enforcement where, for instance, in the last five years they have been convicted of an offence which resulted in imprisonment or; if they have at any time been imprisoned for 12 months or more as a result of a single offence (not an aggregate sentence/consecutive sentence) or; if in the last three years they have had three or more convictions (including non-custodial sentences) unless they have lived in the UK for five years or more or; if they are in prison and being considered for deportation or; if they have been involved in various immigration offences such as sham marriages or, have been deprived of British citizenship due to their conduct
A case referred to IE will result in the EUSS application being put on hold whilst deportation action is considered and, where deportation is thought appropriate, the EUSS application being refused.
A pending prosecution or investigation which might meet the refusal on suitability grounds criteria will mean the application not being decided until the outcome of any prosecution is known.
The European Union (Withdrawal Agreement) Bill
As the Government has a working majority in the House of Commons, the European Union (Withdrawal Agreement) Bill will almost certainly pass into law as an Act in January 2020 and that the UK will leave the European Union on 31 January 2020.
The Bill makes provision for the EU Citizens’ rights and Immigration rights and also makes provision for restricting rights of entry and residence and for deportation.
Under the Bill, EU law will continue in force in the UK during the transition period and beyond that time period where provided for under the Withdrawal Agreement (with some modifications.
Under Article 20 the conduct of EU Citizens, their family members, and other persons, who exercise Citizens’ rights under the Withdrawal Agreement, prior to the end of the transition period must be looked at in light of EU not UK standards. So, the criteria remain grounds of public policy, security and health, and safeguards contained in Chapter VI of Directive 2004/38 (Articles 27-33) continue as well. such as the increased protection afforded to people who have acquired Permanent and 10 years of residence.
After the end of the transition period conduct will be regulated solely by UK law and the protection of EU law standards will not apply even where that person falls within the personal scope of the Withdrawal Agreement. For example, a Dutch citizen employed in the UK since 2014 but who is convicted of criminal offences occurring in 2022, will be subject to UK deportation criteria alone and not get the benefit of EU law.
Although only 6 applications have so far been refused, nearly 300,000 applications are waiting to be processed and it is unclear how many of those relate to people who have disclosed criminal convictions or have had such convictions flagged up on the database systems.
What is also uncertain is what attitude the government is likely to adopt towards EU nationals in prison applying for EUSS and what, if any, resources are going to be set aside to make them aware of the scheme and how to apply before the cut off periods.