Administrative Review and the EU Settlement Scheme: What does the 89.5% success rate show?

By PLP Research Fellow Alice Welsh & Research Director Dr Joe Tomlinson

An incorrect decision under the EU Settlement Scheme (EUSS) could impact the terms by which EU citizens and their family members are able to reside and access services in the UK after Brexit. Statistics we have retrieved on administrative reviews of decisions under the EUSS show that 89.5% of initial decisions reviewed were overturned.­ In this post, we explore what this figure tells us about the implementation of the Scheme.

While receiving an incorrect decision could be rectified by re-applying under the EUSS, for those running into consistent problems with their application an effective redress mechanism is needed. A tribunal appeal right for EUSS decisions is still yet to be legislated for and judicial review is expensive, inaccessible, and limited to narrow legality claims, so administrative review is the primary mode of redress available for EUSS applicants.

Administrative review is a mechanism whereby a different official from the decision maker, but within the same department, will review the papers from the initial decision for casework errors. The initial decision can then be changed if there is an error. Under the EUSS, administrative reviews may be requested if a decision grants pre-settled status but an applicant believes they qualify for settled status. A review may also be requested where an application is refused on eligibility grounds. Notably, administrative review is not available against a decision where an application is refused on suitability grounds. This is where the Home Office can refuse an application if there is evidence of serious or persistent offending or where it is proportional to refuse for non-exercise or misuse of rights in the Citizens Directive (Directive 2004/38) or providing false or misleading information in the application. So far, the Home Office has only reported 4 of these refusals.  

In contrast to the administrative review system generally run by the Home Office, the administrative review system under the EUSS allows an individual to submit further evidence, which will then be considered alongside their original application. An application for administrative review comes with an £80 fee. A refund is provided if the review is successful but not if the decision is overturned on the basis of new evidence submitted.

While the use of administrative review can be beneficial as it reduces costs for the state and generally produces quicker decisions for applicants, compared to tribunal appeals and judicial reviews, available evidence on administrative review systems more generally (both in the Home Office and central government) suggests they ultimately have the effect that individuals are significantly less likely to succeed in overturning an adverse immigration decision.

Statistics on administrative reviews for the EUSS have been teased out of the Home Office through several repeat Freedom of Information Act requests. This a necessary technique for getting information on the Scheme due to the underwhelming data publication approach being taken thus far (our fuller analysis of this issue is available here).  The most recent data released shows that, as of 12th September 2019, the Home Office had received 451 administrative review requests for EUSS decisions. More recent figures for administrative reviews have been requested but have been refused by the Home Office. This figure does appear to be relatively low in relation to the 885,000 EUSS decisions which may be eligible for challenge (this relates to the grants of pre-settled status and ‘other outcomes’ including when an applicant is deemed ineligible to apply), compared to other immigration decisions (where, for example, the Home Office received 2393 administrative review requests in a 3 month period between 1 October to 31 December 2016). However, this does not necessarily mean that other EUSS applications (i.e. those where are a review is not sought) are receiving the correct outcome. Many may choose to re-apply rather than challenge a decision to avoid an £80 fee, particularly if they wish to submit further evidence. As the Home Office has not released statistics on the number of re-applications, instead opting to count them multiple times in the overall 2 million EUSS applications made so far, it is not possible to see how many have taken this route.  Others may not challenge an incorrect decision to grant pre-settled status if: they are unable to access further evidence; they don’t know how the challenge mechanisms work; are fatigued by the process and reluctantly accept the outcome; or do not realise they have been granted a status with fewer rights.

The ability to track the performance of administrative reviews of EUSS decisions over time is further limited due to the Home Office not publishing data on the process and, for FOI requests, pulling data from a ‘live operational database’ at a single point in time between a request being lodged and their response within 20 working days. There is therefore no consistent time period for each data set.

Nevertheless, the statistics published do reveal a significantly higher success rate for administrative reviews of EUSS decisions than other immigration decisions. As of 12th September, of the total 325 administrative reviews that had been decided, 291 (89.5%) resulted in a decision of pre-settled status being overturned and settled status granted. This success rate is drastically higher than other Home Office administrative reviews, which were recorded in 2015/16 as 8%, falling to 3.4% in 2016/17. A higher success rate could suggest multiple patterns. It could show that administrative reviews are working much more efficiently as a mechanism of redress for EUSS applicants. It could also indicate that the automated data checks and initial decision makers are getting things wrong more frequently. While it is certainly the case that administrative reviews have been more effective for the EU Settlement Scheme than in other Home Office schemes, this could be attributed to the scope for introducing new evidence for the reviewer to consider. It could therefore be the case that the Home Office is taking accurate initial decisions based on the information it has at the point of the initial decision but new evidence leads to that decision being overturned on review. However, this would still raise concerns that the initial application process does not inform applicants sufficiently on the ability to submit supplementary evidence and the kinds of evidence required for the Scheme.

In reality, the high success rate on administrative review is likely driven by a complex combination of factors. However, it is clear that the success of EUSS administrative reviews cannot be solely attributable to the ability to provide new evidence as 192 refund requests have been processed by 18th September 2019.Refunds are only available for decisions which are overturned without the reliance on additional evidence therefore suggesting caseworker error and when an administrative review is invalid. Without up to date statistics from the Home Office on the number of invalid administrative reviews, it is not possible to determine how many refunds are provided for caseworker errors. However, the most recent statistics from May 2019, suggests that only 8% of administrative review applications were invalid. Excluding these potential invalid applications, it can be estimated that around 48% of EUSS administrative review decisions have received a refund, suggesting they were overturned without using new evidence.

This is a large portion of the reviews undertaken, though the current figure does not account for those reviews which are eligible for a refund but have yet to be processed or where a fee is incorrectly not refunded.

The necessarily tentative nature of the analysis we have presented here partly reflects the Home Offices inadequate handling of EUSS data collection and publication. However, it also reflects another risk of the use of administrative review systems: that they weaken the public accountability of government systems by concealing problems of initial decision-making.