Removal of EU nationals and their family members
Removal of EU nationals and family members from the UK is very much a real thing after Brexit. From 1 July 2021 onwards, (subject to pending applications or outstanding appeals) a person who does not have any other status granted by the immigration rules must have EUSS leave or fall within one of the other cohorts with rights under the agreements.
EEA citizens and their family members arriving on or after 1 January 2021 must successfully apply for leave or obtain visitor leave at the border, and meet the relevant immigration conditions, under the points-based system of the parts of the immigration rules giving effect to their rights as part of a cohort protected by the relevant citizens’ rights agreements (save for frontier workers). Those entering via Ireland without any other form of leave or status are deemed leave unless they are encountered during an intelligence-led control and are granted visitor leave. Those entering from one of the Crown Dependencies must have existing leave granted by that Crown Dependency, which is recognised in the UK including the relevant conditions of that leave, unless they are encountered in the course of an intelligence-led control and are granted visitor leave.
General principles
Since 1 July 2021, (save for those with pending applications to the EU Settlement Scheme (EUSS), outstanding appeals against an EUSS refusal, or those who are joining family members prior to the relevant EUSS deadline), European Economic Area (EEA) citizens who require leave may be liable to removal if they do not have leave or are in breach of a condition of leave.
Some EEA citizens who are lawfully here may not always be able easily and quickly to satisfy UK immigration control that this is the case. The Home Office guidance provides advice for a variety of possible scenarios.
Outstanding EUSS consideration / appeals
Those making a valid, late application for EUSS and who have been issued with a Certificate of Application (CoA), are afforded temporary protection pending consideration of their application and any appeal. Investigation of fraud and other criminality should however continue and details must be noted on Atlas for consideration by the caseworker.
Where there is delay in issuing a CoA it is acceptable for the individual to produce / show the acknowledgement email/letter they received which explained how they could use the checking service to prove they had made an in-time application, pending receipt of their CoA.
The temporary protection afforded to late applicants will extend to the ability to continue to use an EEA ID card for entry to the UK from 1 October 2021, prior to their application being concluded.
No evidence of EUSS leave: service of 28-day notice for EUSS
The initial phase of the EU Settlement Scheme (EUSS) ended on 30 June 2021. Those who have not applied to the EUSS by that date, and have no other basis of stay, are liable to administrative removal. However, applications will still be accepted where the individual can demonstrate they had reasonable grounds for missing the deadline.
The 28-day notice has been introduced to help ensure that full consideration is given to the rights of all whose cases are considered or whom we encounter. It aims to address those specific operational encounters with EU, EEA or Swiss nationals and their family members that are managed by frontline officers where existing processes and opportunities to submit grounds against removal or deportation may not apply or be supported by existing written notices.
Unless a person is being otherwise managed under existing processes, from 1 July 2021, and until further instructions are issued, Home Office immigration enforcement must continue to identify if an individual may be eligible for EUSS leave and issue them with information telling them that if they wish to remain they must now seek to secure their right of residence by making a late application to the EUSS, normally within 28 calendar days of the notice being served, and that failure to do so may result in their loss of access to services in the UK and a requirement to leave the UK. See: 28-day notice for EUSS.
EUSS leave granted by one of the Crown Dependencies is recognised as EUSS leave granted by the UK. These individuals do not need to apply to the UK’s EUSS for additional status.
When considering whether an individual is liable to removal, the same evidential and procedural standards apply as to all foreign nationals subject to immigration control under the Immigration Act 1971 and who require leave.
Where the available evidence means that Home Office immigration enforcement may reasonably conclude that the individual does not have a pending EUSS application, an outstanding appeal against an EUSS refusal, is not a joining family member prior to the relevant EUSS deadline, and requires leave but has no leave, or that they are in breach of a condition of their stay, and they do not appear to be eligible for EUSS leave, they can be served with a notice of liability to removal and consideration given as to whether it is appropriate in the circumstances to place that individual under immigration bail or in detention.
If it is proposed to detain the individual pending removal, evidence suggesting liability to enforcement action must be established to a high degree and detention authorised by at a higher grade officer.
If, following consideration of the facts and circumstances, immigration officer are satisfied that the strength of evidence strongly suggests that the individual is not an EEA citizen and/or is misrepresenting or falsifying their relationship to an EEA citizen, it may be appropriate to continue to a Schedule 2 examination (in the case of encounters during visits and operations) and consideration of administrative removal action.
EEA citizens: liability to administrative removal or deportation
In the cases of EEA citizens and/or their family members who are protected by the agreements and who are arrested for criminal offences, consideration must first be given to when the criminality was committed. If the conduct was committed before the end of the transition period, their deportation will be considered under the EU public policy, public security, or public test. This also applies where there are reasonable suspicions the person has engaged in sham marriage behaviour before the end of the transition period. If the conduct was committed after the end of the transition period, deportation must be considered under the UK deportation threshold (on the ground deportation is conducive to the public good).
For EEA citizens who are not protected by the agreements, deportation will be considered under the UK deportation threshold, regardless of when the conduct was committed.
EEA nationals who entered the UK illegally
An EEA citizen may have entered the UK illegally and may be liable to administrative removal if:
- they entered in breach of a deportation order,
- they entered using false or fraudulent documentation
- they entered the UK via the Common Travel Area in certain circumstances. See: within this guidance; Evidence of entry from within the CTA
- they entered the UK either clandestinely or by deliberately circumventing UK border controls, within 12 months of a previous removal under regulation 23(6)(a) or 23(6)(c)
- they entered the UK where not entitled to do so by virtue of regulation 23(1)
Those who had their EUSS application refused
Those individuals refused leave to remain having applied to the EU Settlement Scheme (EUSS) may be liable to administrative removal unless:
- they can show they have another right to remain, right of residence or citizenship;
- they are exempt from immigration control;
- they are subject to temporary protection as evidenced by a Certificate of Application.
An individual refused EUSS following confirmation that they employed false representations and/or use of documentary deception, must provide evidence of any right to remain or be liable to administrative removal in accordance with the guidance ‘Administrative removal (non-EEA)’. Consideration should be further given to prosecution for the offences described.
28-day notice
If the individual claims to be an European Economic Area (EEA) citizen and Home Office immigration enforcement are satisfied this is the case, you must assess whether the individual has already been given a 28-day notice and whether this has expired. See: assessing evidence.
There may be individuals who may be eligible for status under the EU Settlement Scheme (EUSS) but did not apply by 30 June despite being entitled to do so. The general approach taken in respect of such individuals until further notice will be to serve a 28-day notice for EUSS unless they are or would be managed under existing caseworking processes.
Voluntarily produced evidence of lawful residence
If, during exploratory questioning, the person voluntarily produces satisfactory evidence of their lawful residence and there is no evidence of behaviour that meets the following criteria, their claim to lawful residence should be accepted, except where:
- information indicates that they have been refused EUSS or have been served with a 28-day notice for EUSS and failed to submit an application within the appropriate time
- the person’s conduct committed before the end of the transition period meets the EU public policy, public security, or public health test; for example, criminality or engaging in sham marriage behaviour as either a participant or facilitator
- the person’s conduct committed after the end of the transition period that meets the UK deportation threshold (on the ground deportation is conducive to the public good)
- there are reasonable grounds to suspect a fraudulent claim to be an EEA citizen, the individual is known or suspected to be involved in criminal activity, they are subject to an extant deportation order, exclusion decision or exclusion order, or have otherwise engaged in adverse behaviour that meets the threshold for enforcement action
- there are reasonable grounds to suspect the EEA national first entered the UK after the end of the transition period from 1 January 2021 and does not have valid leave or is in breach of a condition of their leave and does not have another right to remain, right of residence or citizenship and is not exempt from immigration control.
