Delays involving applications under the EU Settlement Scheme are currently common and widespread amongst many applicants. As indicated in our previous blog, these delays are causing a great deal of anxiety and stress to many applicants.
The impact of these delays on individuals and their families varies from case to case and depends on their individual circumstances. However, many applicants may face serious restrictions in terms of working, renting, accessing medical treatment and find themselves abroad and separated from family members whilst waiting for a decision.
The current Home Office application processing times guidance does not help to provide reassurance to applicants as the times stated in the guidance very often fail to mirror the processing times that we encounter in real life. The guidance says that it usually takes around five working days for straightforward applications but in our experience, it can take up to one month. We have also come across many applicants with straightforward applications who have been waiting much longer without any obvious reasons that could possibly justify the delay.
The Home Office guidance states that the application is likely to take ‘longer than a month’ to process if:
- Further information is required from the applicant.
- The applicant is a minor and the application is not linked to an adult.
- The applicant submitted a paper application.
- The applicant has a relevant criminal record.
- The applicant is a non-EEA or non-Swiss citizen and is applying based on a relationship they have not relied on in a previous application to the Home Office.
The guidance fails to specify what processing time applicants can expect when they fall outside the one-month processing times.
The first step in understanding the length of any delay is to calculate when the Home Office considers the application processing time to have started. If applicants applied using the EU Exit: ID Document Check app, the processing time starts when the online application form was submitted. For those who posted their identity document to the Home Office, it will be when the Home Office received the identity document. In addition, if the applicant is a non-EEA family member and needed to provide their biometrics as part of their application, the processing times start once the Home Office receive their biometrics.
Challenging a delay under the EUSS
We are aware that delays under the EU Settlement Scheme are affecting a large number of applicants and often the delay may be unreasonable and unjustified.
The Home Office’s customer service standard time for in-country settlement applications is six months. In most cases, it will therefore be premature to consider initiating judicial review proceedings before this timeframe has passed.
For a legal challenge to be successful, applicants will have to show that the delay is to the point that it is unlawful. Evidence as to the detriment caused to the applicant as a result of the delay can be helpful in demonstrating the unreasonableness.
Before considering a challenge to the delay, it is good practice to document attempts made by the applicant in trying to secure an update or decision from the Home Office.
With the aim of helping and empowering applicants who are currently experiencing delays under the EU Settlement Scheme, we are providing applicants with a list of suggested steps that they can take before seeking legal advice in regard to this matter.
1. Contact the EU Settlement Resolution Centre (SRC)
You can contact the SRC to obtain updates on the progress of your application. The SRC can be contacted by phone or by email.
The telephone numbers are 0300 123 7379 if you are inside the UK, or +44 (0)203 080 0010 if you are outside the UK. Both phone lines are open Monday to Friday (excluding bank holidays), 8.00am to 8.00pm, Saturday and Sunday, 9.30am to 4.30pm.
You can also contact the SRC online by using the online enquiry form. When completing the form, you will be asked ‘what is your question about’. In response, you should select ‘after you have submitted your application’ and then request an update on the progress of your application. We would recommend highlighting the length of time you have been waiting for a decision and any difficulties you are facing as a result.
It is important that you keep an accurate record of all your phone calls, including the date, name and team number of the person you spoke to and the information provided regarding the status of your application. You should also keep a record of all your email correspondence with the SRC. This evidence may become important if you ultimately decide to lodge a legal challenge against the delay.
2. Make a complaint against the Home Office
If you have been waiting for a decision for a long time and the SRC is not providing you with a satisfactory answer or a reasonable timeframe, you could also consider making a complaint against the Home Office’s failure to make a decision in your case.
The Home Office defines a complaint as an expression of dissatisfaction with the services provided by them. To make a complaint, you can email the Home Office at firstname.lastname@example.org or send them a letter at Home Office, Direct communications unit, 2 Marsham Street, London SW1P 4DF.
You will need to provide your contact details and include information in the complaint about the part of the department you felt provided you a dissatisfactory service (EUSS Case working team). The Home Office aims to respond to applicants within 20 working days. If you remain unsatisfied, you can also ask your Member of Parliament to refer your case to the Parliamentary and Health Service Ombudsman.
For further information about making a complaint, please visit: https://www.gov.uk/government/organisations/home-office/about/complaints-procedure
Please keep a record on any correspondence with the Home Office as this evidence may become important if you decide to lodge a legal challenge against the delay.
3. Contact your Member of Parliament (MP)
Applicants who are residents in the UK can also contact their Member of Parliament (MP) and ask them to contact the Home Office regarding the delay in processing their application. MPs represent all the people in their local area, whether they vote for them or not. You can find out who your MP is in the Directory of MPs.
We would recommend writing to your MP, making sure you provide them with your application reference number so that they can follow this up with the Home Office. You can write a letter to your MP at House of Commons, London SW1A 0AA or email them using their contact details which you can find in the Directory of MPs link above.
In our experience, MPs offer great assistance to applicants by making enquiries on their behalf with the Home Office and sometimes their correspondence can help focus the Home Office’s mind on your application, which can help to process the application quicker.
Please keep all your correspondence with your MP and any letters received from the Home Office safe as this evidence may become important if you wish to lodge a legal challenge against the delay.
4. Consider initiating legal action
If after trying all the above steps, your decision is still pending, no further information/documents are required from you and you have been waiting for an unreasonable amount of time to get a decision, you may wish to consider initiating judicial review proceedings.
Judicial review is a way of challenging the decisions, and acts (and sometimes the failure to act) of a public body, because it has not acted lawfully. It is a court procedure, brought in a branch of the High Court known as the Administrative Court, or in relation to certain types of cases, in the Upper Tribunal. In judicial review proceedings, the judge will not be concerned with the conclusions of that process (whether you should be granted settled or pre-settled status), as long as the right procedures have been followed to reach that decision.
It is important to be aware that this type of legal remedy is expensive, risky and complex. In terms of financial costs, if you are eligible for legal aid funding, you may have costs protection. If, however, you are not eligible, you will have to privately fund your claim and could become liable to pay your opponent’s costs (the Home Office). Just to give you an idea, a fully contested judicial review can result in costs in excess of £10,000.
Before commencing the judicial review procedure, certain steps must be taken, except in some urgent situations. These steps include writing a letter to the public body (in this case, the Home Office) setting out why you think they have acted unlawfully and what you want them to do to rectify the situation (to reach a decision without further delays). You should state also your intention to apply for judicial review if they do not confirm they will take the action you have specified within a certain time, which is usually 14 calendar days. This is known as a pre-action protocol letter.
There is a specific format setting out all the issues the pre-action letter should address in a document known as the pre-action protocol for judicial review. In addition, the Home Office has also published a pre-action protocol template, which applicants can use. You can find the template here.
The pre-action protocol letter is a very important document because many public body defendants will withdraw or reach a disputed decision in response to a well-drafted pre-action protocol letter. The pre-action protocol can therefore trigger the resolution of the dispute without the need for judicial review proceedings to be started. For this reason, a lawyer who specialises in judicial review proceedings should usually draft the pre-action protocol, if possible.
However, if you wish, you could also draft the pre-action letter yourself using the Home Office’s template provided above. You should enclose documents with your letter such as any correspondence with the SRC or emails interchanged between your MP and the Home Office. You can send the letter before claim electronically or by post. Please refer to the form for further information.
The fact that you may decide to submit a pre-action protocol letter does not mean that you are obliged to initiate judicial review proceedings. The letter is just an attempt to try to resolve matters amicably with the Home Office in order to avoid initiating court proceedings.
If there is no satisfactory response to your letter before the claim, the next step would be to make an application for permission to apply for judicial review. At this stage, you should contact a solicitor who will properly assess your case, your available funding options and your chances of success.
If you need help challenging a delay under the EUSS, please do not hesitate to contact our Immigration team as a solicitor may be able to help you to challenge the delay.