Appeal rights have now been introduced for those who submit applications under the EU Settlement Scheme. This is good news for those who are submitting their applications after the UK left the EU at 11pm on 31 January 2020.
We previously commented on the EU Settlement Scheme statistics, which show that by the end of December 2019 over 2.7 million applications had been submitted to the EU Settlement Scheme. Of those applications, about 300,000 remained outstanding in a backlog at the end of the year. These applicants, and those who submitted applications this January before Brexit, do not benefit from the new appeal rights. They are only entitled to challenge a decision through administrative review.
Hundreds of thousands of people are estimated to be yet to apply under the EU Settlement Scheme. These people will benefit from the change to appeal rights. The new appeal right covers a full range of decisions under the EU Settlement Scheme, rather than just a refusal to grant any status at all. It has been reported that to date a key issue for EEA nationals and their family members is that people have been granted limited leave (pre-settled status) rather than indefinite leave (settled status), despite having lived in the UK for many years. To date applicants have been able to challenge these decisions through administrative review and we understand that this option will remain. However, the right of appeal brings new judicial oversight. Appeal rights also extend to decisions to cancel settled status or pre-settled status and decisions to deport a person with leave under the scheme.
The grounds of appeal are limited to just two. People can challenge a decision either on the basis that it breaches rights under the Withdrawal Agreement or that the decision is not in accordance with the relevant immigration rules or legislation. However, appellants will have the opportunity to raise new matters in a “section 120 statement”. The Tribunal will consider these matters if they would amount to grounds under the general appeal regime that operates outside the EU Settlement Scheme. This gives a right of appeal to those arguing that removal would breach the UK’s obligations under the Refugee Convention or under rules relating to humanitarian protection or that removal would be breach their human rights. This provision is likely to assist people who have lived in the UK a long time and wish to raise Article 8, the right to family and private life, at their appeal.