Administrative Review for EU Settlement Scheme Refusal

According to the latest EU Settlement Scheme (EUSS) statistics published on 21^st September 2021, around 5.5m applications have been concluded, and of these, approximately 110,000 were refused. Of these refusals, 99% were said to be declined based on eligibility grounds (i.e., the applicants did not meet all of the eligibility criteria), and 1% were deemed unsuitable (e.g., due to a criminal record). While the number refused is extremely small compared to the number processed, a very large number of individuals and families have been affected. In some cases, EUSS refusals have been in error, in which case the appropriate course of action is to request an Administrative Review from the Home Office. In this article, we will look at the purpose of an Administrative Review, when to request one, and the possible outcomes.

What is an Administrative Review (AR)?

An AR is simply a request that a public body in the UK (in this case, the Home Office) looks again at how a decision was reached because it is believed a mistake was made by the case officer. In order to be able to request an AR, you must have received an ‘eligible’ decision from the Home Office. This is because not all refusals can be followed up with an AR. In the context of applications under the EUSS, an eligible decision may include:

• Refusal of an application
• Grant limited leave to enter or remain and not indefinite leave to enter or remain
• Cancellation of leave

An administrative review may be requested, for example, if it is believed the case officer miscalculated the amount of time spent in the UK and granted pre-settled rather than settled status. Likewise, they may have refused an application because they mistakenly assessed that the applicant was not living in the UK before the end of 2020.

In addition, because applications received after 30^th June 2021 now require a valid reason for being late (this was the cut-off date for applications), this may also be grounds for requesting an AR (i.e., if the case officer assessed that were was no valid reason for a late application when there was).

What will the Home Office do with a request for an AR?

All requests for an AR are handed to a ‘reviewer’ within the Home Office whose role it is to decide whether the original decision was in error or not. In accordance with Appendix AR EU, they are required to consider whether:

• The decision-maker failed to apply, or incorrectly applied, the relevant Immigration Rules;
• The decision-maker failed to apply, or incorrectly applied, the published guidance in relation to the application; or
• Information or evidence that was not before the decision-maker has been provided to the reviewer, which shows that the applicant meets the relevant qualification criteria.

The reviewer will use the information provided by the person who requests the AR to determine if a mistake was made. Where the decision made was incorrect, it will be withdrawn and a new decision made. As such, this does not necessarily mean that approval will be granted as there may be other grounds for refusal, but it is more likely that a successful outcome will be reached.

When submitting an AR, it is also possible to submit additional information to support the request, but only if requested to do so (the guidance states, “Do not send new information or documents for review unless you’ve been asked to”. Appendix AR EU states, “AR(EU)2.3. The reviewer will consider any information and evidence submitted with the application for administrative review, including information and evidence that was not before the original decision-maker”. In addition, the reviewer may request further information before making a decision on the AR. Section AR(EU)2.4 of Appendix AR states, “The reviewer may contact the applicant or their representative to request further information or evidence, to be provided within a reasonable timeframe specified in the request”.

Crucially, if you submit a request for an AR for an eligible decision, you will not be at risk of removal from the UK. Appendix AR EU confirms that “Where an administrative review under this Appendix is pending the Home Office will not seek to remove the applicant from the United Kingdom”. This includes if a further request for an AR has been submitted to the Home Office.

How can I request an AR?

You will be told if you can apply for an AR and how to do this in your EUSS application decision letter. If you are in the UK when you receive the decision letter, you will have 14 days to request an AR. This is completed online on the Home Office website, and there is a fee of £80 payable. If you are outside of the UK, you will only be able to request an AR if:

• you applied outside the UK
• your application was refused on or after 6th April 2015
• you do not have a right of appeal against the refusal
• you did not make an application as a short-term student or a visitor (except if you applied as an S2 Healthcare Visitor)

AR requests outside the UK must be submitted within 28 days of receiving a decision letter.

How long will it take to receive a decision on my AR?

According to the latest guidance, it is taking around six months for AR requests to be processed and a decision made. The Home Office advise, “If you haven’t had a decision on your application within three months, the Home Office will contact you with an update. Your rights are not affected by the delay in processing applications. You cannot request a second review (unless the result included new reasons why you were refused)”.

How we can help with your Administrative Review

As one of the most respected and experienced immigration law firms in the UK, Reiss Edwards can handle all aspects of your AR or appeal. We will first assess your options if you have received an adverse decision following your EUSS application and determine the best course of action for you and your family members, based on your long-term plans. We can handle the AR request on your behalf, provide any additional information needed, and liaise with the Home Office on your behalf.