Araniya Kogulathas is a Barrister and Legal Manager at Bail for Immigration Detainees.

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Bail for Immigration Detainees (BiD’s) EEA Project was set up during the transition period to provide advice and representation to EEA Nationals detained in prisons and detention centres with a view to helping them secure immigration bail.

In light of the uncertainties surrounding the rights and entitlements of EEA Nationals generally, it was anticipated those of detainees would likely be overlooked by the Home Office. We sought to monitor the Home Office’s compliance with the Withdrawal Agreement, which included ensuring that such individuals would be given a reasonable opportunity to make applications under the EU Settlement Scheme and access support with their immigration cases. Regrettably but perhaps unsurprisingly, our apprehensions were validated. 

EEA nationals held in prisons were frequently unable to access application forms to make EUSS applications. During the pandemic they, like other prisoners and detainees were routinely locked in their cells upwards of 22 hours per day. Sometimes, they were prohibited from leaving their cells at all. They therefore had limited time (if at all), to shower or exercise, let alone spend their precious phone credit and time waiting to speak to an operator at the EUSS Resolution Centre just so they could persuade them to issue a paper application form. 

Paper application forms were only made available very shortly prior to the 30 June 2021 deadline. ‘David,’ an 18-year-old EEA national and looked-after-child who had lived in the UK since he was very young was not able to make an EUSS application until he was released days before the deadline. Social Services were unable to book a prison visit to complete the form with him. A community charity thankfully rushed to submit an application on the day of the deadline itself. It is utterly perplexing as to why the Home Office did not simply make paper application forms available on request to EEA Nationals held in immigration detention centres and prisons from the outset and to date, they have provided no reasonable explanation for this. 

EEA nationals, who had made the UK their home, had worked, had families and loved ones here but had the misfortune of being detained by the Home Office were not only unable to make applications under the EU Settlement Scheme but were served with removal directions after being given certified deportation decisions, forcing people to leave the UK even if they have appealed against the decision to deport them. Certification can only be challenged by way of Judicial Review, a complex process even for lawyers. The expectation that detainees with language barriers, often suffering from fragile mental health and other vulnerabilities could navigate this process from within a detained setting is fanciful at best. It is therefore unsurprising that deportations to EEA destinations, especially to Poland and Romania took place regularly during the pandemic. Such deportees included ‘Kristoff’ who was removed before being able to hold his newborn baby boy. He hadn’t been able to apply for settled status despite having lived and worked here. The Home Office treated him just like a number. 

The Home Office has rightly accepted that EUSS applications constitute a barrier to removal and is frequently unable to provide a timescale as to when they might be decided (this is consistent with the reported backlog of processing such applications).  In the absence of any reliable timescale, it follows that removal cannot be considered imminent, making the use of immigration detention entirely inappropriate. Yet, the Home Office not only continues to detain individuals with outstanding EUSS applications but it has in the past, refused to confirm that such applications have even been made. This has had the effect of individuals being refused immigration bail and served with removal directions on the basis that there is no evidence of a barrier to removal. It is perverse that the Home Office has relied on its own administrative failures to deny people their liberty and subject them to removal proceedings. 

Notwithstanding the reality that EEA nationals are incrementally being swept into the hostile environment, we intend to hold the Home Office to account to ensure that it complies with both the letter and spirit of the Withdrawal Agreement. Its failures thus far in respect of some of the most vulnerable EEA nationals must be recognised and rectified.

BiD has raised its concerns with the Home Office directly and made a complaint to the European Commission. Correspondence is still ongoing.