IMA welcomes Home Office's updated guidance on pending prosecutions for EUSS applications

Article summary

The Independent Monitoring Authority for the Citizens' Rights Agreements (IMA) has endorsed recent changes to Home Office guidance concerning pending prosecutions in EU Settlement Scheme (EUSS) applications. Following the Upper Tribunal's ruling in R (Krzysztofik) v SSHD [2024] Lexis Citation 690, which deemed the previous policy of pausing applications where there was a pending prosecution for alleged conduct committed before the end of the Brexit transition period, and without taking the relevant public policy threshold into consideration, unlawful, the Home Office has revised its approach. The updated guidance now permits caseworkers to progress EUSS applications irrespective of pending prosecutions, assessing eligibility and suitability criteria separately from prosecution allegations. If leave is granted and the applicant is subsequently convicted with a custodial sentence, the case will be referred to the Foreign National Offender Returns Command for potential deportation proceedings, which would invalidate any EUSS leave under the Immigration Act 1971.