European citizens who have applied for settlement status are being detained and threatened with deportation, a development which contradicts the assurances of ministers and appears to contravene the Brexit withdrawal agreement.
The Home Office has served EU nationals with removal instructions even if they could prove they had applied for settlement status, which should protect their rights to stay in the UK.
Ministers have repeatedly promised that anyone who files before the June 30 deadline will have their existing rights protected while their case is heard.
The apparent non-compliance with this agreement has prompted accusations of “administrative incompetence” on the part of Interior Ministry officials or of a “deliberate” attempt to expel as many EU nationals as possible on the assumption that ‘they are easier to deport, for example, than asylum seekers.
A letter from the legal charity Bail for Immigration Detainees (Bid) to the head of immigration law enforcement, dated July 29, raises concerns that the Home Office is not accusing receipt of applications for residence status in cases where it wishes to deport EU citizens.
Bid says that unless a meaningful response is received from the Home Office by the end of this week, he will file a formal complaint with the European Commission.
Lawyers argue that this is an important battle to protect the rights of EU nationals after Brexit. They warn that failure to recognize claims could potentially affect thousands of people.
On Friday, an EU citizen wanted by the Interior Ministry to be deported to a detention center for immigrants was released on bail after a judge admitted he could not be released. be expelled because he had filed an EUSS application.
Even so, the Home Office still contested their release and offered no apologies or explanations for which it had previously argued that there was no evidence of the claim in a previous hearing and that he could therefore expel them.
Speaking shortly after his release, the EU national, who requested anonymity, told the Observer: “They try to play with my life and that of my family and that is not fair. I’m supposed to have rights.
Pierre Makhlouf, legal director of Bid, said: “It seems that the Interior Ministry has decided in advance the fate of some EU nationals, perhaps thinking that they are easy to deport. But in his drive to expel more people, he is bypassing legal requirements and procedures.
“Whether this was due to administrative or willful negligence may not be clear, but by ignoring the legal steps that EU nationals have taken to assert their rights, the UK is failing in its obligations by under the Withdrawal Agreement. “
The problem seems to be mainly with applications sent by post instead of being transmitted digitally. Araniya Kogulathas, lawyer and legal officer for Bid’s European Economic Area (EEA) project, said paper applications are being used by many vulnerable and marginalized people, including the elderly and those in detention or in prison who are struggling access a computer or did not have access to a valid identity document.
The numbers affected could be significant. For example, of the 1,500 inmates at Wandsworth Prison, south London, almost 500 are believed to be EU nationals.
Kogulathas said: “Although they have filed applications with the EUSS, EEA nationals are deprived of their liberty and have even received deportation instructions, which they are both forced to challenge despite a limited access to legal advice and representation.
She added, “These challenges are particularly difficult for those detained under prison immigration powers, some of whom are locked in their cells for about 23 hours a day or more due to the pandemic. “
Recognizing these difficulties, ministers promised an indefinite period during which those who had not applied would be allowed to do so, if they had reasonable grounds.
Among Bid’s known cases is one where the Home Office did not recognize an EUSS application submitted in mid-July, stating that there was “no obstacle to his removal and that return instructions were to be fixed soon ”. Another case involved an EU citizen who, despite submitting an EUSS application online, was still receiving removal instructions from the Home Office.
A spokesperson for the Home Office dismissed the allegations as “completely unfounded” and despite a number of cases presented in the article having been challenged by the Home Office in immigration courts – the last of which took place on Friday – affirmed “the Observer failed to provide any evidence that detention or removal instructions are served on those with EUSS settlement program status ”.
They added, “Our approach means that if law enforcement encounters people without an EUSS but who may be eligible, we will work with them to enable them to apply and refer them to available support. If someone has filed a claim with the EU’s settlement system before the June 30 deadline, but has not yet had a decision, their rights are protected until their claim is decided.