Here on Free Movement we have been repeating until we are blue in the face that the deadline for EU Settlement Scheme applications is 30 June 2021. Regular readers may by now feel rather bludgeoned over the head with this fact, but it remains a vitally important message given that even a tiny rate of non-applications amounts to many thousands of people becoming unlawfully resident overnight.
Everyone working in this field knows this is a crisis waiting in the wings. https://t.co/z2tl5PHYDL— @BryonyRestDG (@BryonyRestDG) March 12, 2021
Among the groups of people radically unlikely to have picked up on the official messaging about immigration status deadlines is EU citizen children in care. The Home Office has already published guidance on the responsibilities of social workers in getting applications lodged on behalf of such children, but a survey in late 2020 found that only around half the 3,300 eligible kids in care had applied so far. And so the Family Division of the High Court has now weighed in on the issue, in an important judgment issued yesterday: W and Re Z (EU Settled Status for Looked After Children)  EWHC 783 (Fam).
Legal mechanics of settled status for kids in care
“It is”, writes Mr Justice MacDonald, “essential that all local authorities understand and discharge the obligations towards eligible children in this regard in accordance with the law and guidance detailed in this judgment, so as to ensure that the entitlement of those children to remain in this jurisdiction, forming as it does a cardinal element of their stability, security and safety, is not jeopardised”.
The case concerned four Polish children, two in the care of Warwickshire County Council and two looked after by Northamptonshire County Council. Both councils applied to the High Court for permission to get the children Polish passports and then sign them up to the Settlement Scheme. The children’s parents, for various reasons, were unwilling or unable to give consent for this. The main question for MacDonald J was whether councils can crack on without consent in these circumstances by invoking their powers under section 33 of the Children Act 1989, or whether a High Court order in the exercise of its “inherent jurisdiction” is required each time this arises.
His answer: no court order required. Paragraph 60 of the judgment says:
i) Where the parent or parents of an EU, EEA or Swiss national child who has been made the subject of a care order under Part IV of the Children Act 1989 (a) oppose an application being made on behalf of the child for immigration status under the EUSS, or (b) cannot be located in order to ascertain whether they agree, in making the application to the EUSS on behalf of the child the local authority will ordinarily be entitled to proceed under the power conferred upon it by s.33(3) of the Children Act 1989 and will not first require the approval of the court.
ii) Where the parent or parents of an EU, EEA or Swiss national child who has been made the subject of a care order under Part IV of the Children Act 1989 (a) oppose an application being made on behalf of the child for passports or national identity documents to support an application for EU settled status, or (b) cannot be located in order to ascertain whether they agree, in making the application for the passport or identity document the local authority will ordinarily be entitled to proceed under the power conferred upon it by s.33 of the Children Act 1989 and will not first require the approval of the court.
That is because sorting out ID and applying for settled status is not among the small range of scenarios where the decision being made on behalf of the child is “so profound or enduring” that it is inappropriate to rely on section 33. Apart from anything else, a successful application “does no more than confirm the status quo with respect to the child’s immigration status in the UK”.
The position is different when it comes to getting British citizenship for a child without parental consent. A change of citizenship, as distinct from mere immigration status, is profound and enduring: see Local authorities may need permission to get British citizenship for children in care.
MacDonald J added an important rider (emphasis in original):
I wish to make abundantly clear that this does not remove the duty on the local authority in each case where an order is in force to satisfy itself that an application for immigration status under the EUSS will safeguard and promote the welfare of the subject child for the purposes of s.33(4) of the 1989 Act or, where a placement order is in force, that such an application is in the child’s best interests for the purposes of s.1(2) of the 2002 Act.
Where a particular EU country requires a court order before it will process passport applications for children without parental consent, the High Court can still make such an order under the inherent jurisdiction (see paragraph 76).
The key points from the judgment are summarised at paragraph 79 of the judgment, reproduced in full below.
Late applications are possible, but undesirable
It might be thought that it is a little late in the day for councils to be still scrambling around to sort this out, particularly if they are still at the stage of applying for ID documents. But, to soften the dire warning we gave at the outset, there is some flexibility on the deadline. Late applications are possible and the Home Office updated its guidance today to flesh out the circumstances in which it will accept them. The document now specifies, as an example of “reasonable grounds” for failing to meet the 30 June deadline, a scenario where “an application to the scheme was not made on their behalf years earlier when they were a child by a parent, guardian or Local Authority”.
Nevertheless, our advice on this point is not to delay beyond the deadline if at all possible, even if the child has no passport. Get an application in with some other documents indicating the child’s identity and nationality instead (see now, on this exact point, paragraphs 36 and 75 of the High Court judgment). There is a dedicated helpline within the EU Settlement Resolution Centre that social workers can use to check with caseworkers whether a given set of alternative ID evidence will do.