Five things visitors to immigration detention need to know about the EU Settlement Scheme

We are all (almost certainly) aware of Brexit, and (probably) of the fact that EU nationals and their family members who have been living in the UK must now make applications to stay in the country and protect their rights. However, the headlines don’t often go into detail about what these applications entail for most people, let alone those in immigration detention.

Here, with the help of Marina Desira, solicitor from Bail for Immigration Detainees (BiD), we cover five things visitors to immigration detention should know about the EU Settlement Scheme. We remind visitors to immigration detention and all other readers that this is only general information, and that anybody who is not a registered immigration adviser must not give immigration advice.

1. European Economic Area (EEA) citizens and their family members need to apply to the EU Settlement Scheme (EUSS) to protect their rights in the UK.

Now the UK has left the EU, EEA nationals and their family members who were living in the UK before 31st of December 2020 can make an application to the EU Settlement Scheme in order to protect their rights to live, work and access services here. People who apply to the scheme can get either ‘pre-settled’ or ‘settled’ status, depending on how long they have lived in the UK. If someone has ‘settled status’ this gives them a permanent right to live, work and study in the UK. If someone has ‘pre-settled status’, they can stay in the UK for up to 5 years and can then apply for ‘settled’ status.

2. There is a deadline.

The deadline for the scheme is the 30th of June 2021. The government has said that they will accept late applications if there are ‘reasonable grounds’ for the delay. However, anyone who makes a late application will not be able to access their rights (such as access to benefits or employment) while their applications are pending. So, it is important that anyone who is eligible and who wants to apply to the scheme tries to do so in time for the deadline.

3. Being subject to a deportation order is a reason for being refused under the scheme, but people who are subject to deportation orders can appeal refusals.

We asked Marina Desira from BID about who should apply to the EUSS from immigration detention. She said, “All of those people who are at any stage before becoming ‘appeal rights exhausted’ would be eligible to apply for EUSS. They are unlikely to receive a decision on the application until the deportation matter has been resolved, but they should not be excluded from applying.”

4. Some people could be detained after applying to the scheme

In some scenarios, people who apply to the EUSS who have criminal convictions will have their cases referred to immigration enforcement, the part of the Home Office which issues deportation orders. If immigration enforcement decides that the convictions of somebody who applies to the scheme meet their threshold for deportation, they can issue them with a deportation notice. These people could be placed in immigration detention. Marina explained that someone who was in this position “would be able to challenge the deportation order and the refusal of EUSS”.

5. People can apply from within immigration detention

The main application process is online, but Marina said that people in detention are likely to need a paper application form, which they must request from the Home Office’s EUSS Resolution Centre. Marina said, “Unfortunately, there are no organisations specifically assisting those who are detained with making EUSS applications… the best thing is to encourage those detained in IRCs (immigration removal centres) to speak to the duty solicitor, who should be assisting with EUSS. If the individual is in prison, they should contact the Home Office EU Settlement Scheme Resolution Centre on 0300 123 7379 to obtain a form to complete. It will be important to explain that the individual is detained in prison and cannot complete the process online.”

If you are visiting someone who needs further help and support with applying to the EU settlement scheme, they can use this interactive map to find different advice services assisting people to apply to the scheme, some of which may be able to help remotely. BID can also provide support for people struggling to access legal support from detention. Finally, AVID’s network of member organisations across the UK can provide practical and emotional support, as well as signposting to other services.

Thank you to Marina Desira of BID for all her helpful answers, and Eileen Bye of Harrow Law Centre for bringing this issue to our attention.

By Thea Slotover, AVID social media volunteer and paralegal at Newcastle Law Centre