Once the UK leaves the EU on 31 January, the Withdrawal Agreement, negotiated by Boris Johnson based on Theresa May’s earlier version, will come into force. The Agreement specifically states that the transition period, which is 11 months long and during which a permanent deal is supposed to be negotiated, can only be extended once, putting an end to the cycle of delays and fresh extensions which have dominated the Brexit process since the referendum in 2016. It also states that once the UK leaves, Article 50 can no longer be revoked, meaning that the only way to become a part of the EU will be to re-apply and start the process from scratch. This is set to happen on the 31 January, only two weeks from now – Brexit is real, unavoidable and rapidly approaching.
As that knowledge seeps through to the broader public, the European Parliament passed a resolution last week expressing the Members of the European Parliament’s (MEP) collective wariness for the future of EU citizens in Britain, as well as British citizens in EU member states.
The European Parliament has all EU citizens’ best interests at heart, as the resolution says, both “before and after the UK leaves the EU.” The complications begin when looking at who that phrase affects in the first place: EU citizens living in the EU27 and EU citizens living in the UK are the obvious ones, but what about the 1.2 million Brits living in other EU countries? What about the people of Northern Ireland, who are all entitled to Irish and by extent, EU citizenship, under the Good Friday agreement? This is where the water gets muddled. The British government has also not clarified whether the EU Settlement Scheme (EUSS), their all-hailed solution for EU citizens in the UK to retain their rights, applies to citizens of Northern Ireland who have not sought UK citizenship under the terms of the Good Friday Agreement.
The resolution expressed apprehension regarding the high proportion of applicants who have only been accorded pre-settled status under the Scheme; these people are at risk of losing their status before they qualify for settled status, or may not re-apply to get that settled status when the time comes. The resolution therefore urges the UK to reconsider their approach and opt for a declaratory scheme instead, an approach which our Managing Director previously endorsed.
It then goes on to state its “grave concern” at conflicting announcement made in relation to EU citizens in the UK who fail to meet the deadline for EUSS applications, and the treatment of late applications under the Scheme. Last year, UK Home Office minister Brandon Lewis suggested that people who had not applied to formalise their status by the cut-off date of 30 June 2021 could “theoretically” be deported.
Other concerns highlighted include the lack of physical documentation proving EU citizens right under the EUSS, and the potential discrimination that can flow from it. It recommends providing EU citizens with some type of physical evidence of their legal right to be in the UK by the end of the transition period to avoid this. Unfortunately, as our Managing Director explains in The Independent, this discrimination is already occurring. The resolution also mentions the UK’s plans for an Independent Monitoring Authority (IMA) which under the withdrawal deal is meant to monitor arrangements, questioning how fully independent of a watchdog this authority will really be. These concerns resonate with immigration lawyers and other professionals in the sector; no real details of how the IMA will operate have been released, and until the Ministry of Justice provides more details as to the construction and powers of the IMA, it is something that will need to be closely scrutinised as the situation develops and more details are released.
The EU’s approach to the post-Brexit transition seems to be one of cooperation and collaboration, but it is not without its limits. The Parliament therefore stated that the level of free movement granted to EU citizens after Brexit will be a factor in deciding the “degree of future cooperation in other areas.” As Ursula von Leyen, president of the European Commission, said in her speech at the London School of Economics (LSE) last week, the last few years have been difficult and divisive. What people need, and what they want, is certainty about their lives and their future, and certainty about the future of their loved ones. It is of paramount importance that in the next round of transitional negotiations, the British government lives up to those expectations.
Just shy of 2.6 million applications for status under the EU Settlement Scheme have been received since its launch in January 2019. That is what the latest set of statistics published by the Home Office, state.
October 2019 saw the highest number of applications per month since the EU Settlement Scheme was introduced: over half a million applications were submitted, with a looming possibility of Brexit day pushing people to action. The slightly overwhelming flow of applications has led to a backlog in processing times: more than 20% of applications were still being considered a month after having been received.
As more people apply, the strengths and weaknesses of the Scheme are becoming increasingly apparent.
Preliminarily, statistical estimates are unlikely to be accurate because it is simply not known how many EU nationals live in the UK. Free movement law has allowed EEA nationals to enter and leave the country without it being recorded for decades. As such, any estimates as to how many people should apply are only just that – estimates, which are hard to back up with hard evidence.
The Office of National Statistics (ONS) have attempted to do some work on this, but as the Scheme solidifies and application numbers increase, we can see that their published estimates are plainly wrong. Kuba Jablonowski, a Political Geography lecturer and researcher at Exeter University, dug into the numbers.
One major drawback of the ONS statistics is that some applications under the Scheme are counted towards the total number of applications despite coming from applicants who already have status under the Scheme. These are people who were granted or refused status, and then, for whatever reason, re-apply. The Home Office has confirmed that it counts repeat applications under the EU Settlement Scheme as new applications:
“It’s right that every application is counted because each application has a separate outcome. However, our initial analysis of internal figures suggest that repeat applications currently represent less than 0.5% of applications.”
0.5% out of 2.6 million applications may not sound that significant, but it means that thousands of cases are counted twice, distorting the statistics. Additionally, if the Home Office continues to use the same statistical methods, the discrepancy between the real number of applicants and the published numbers will only increase as many applicants who were initially granted pre-settled status will have to apply again to receive settled status, thus all becoming “double applicants.” Moreover, those who get a status in the crown dependencies, and also get a status under the Home Office scheme, are counted in the Home Office numbers. In reality, these should be ignored for the purposes of calculating the number of missing applicants.
Another red flag is the low number of applicants from the age group 65 or older. According to the statistics, only 2% of the total applications come from people aged over 65, although they make up a higher percentage of the EEA population in the UK. Reasons for this include the technology barrier, as well as the limited reach of government marketing and campaigning of the Scheme to secluded and isolated communities.
The discrepancy between expected/estimated applications and true applications is confirmed in the monthly statistics from October 2019. Following the ONS estimates, by October 2019, 132-148% of Portuguese nationals, 105-121% of Bulgarians, 93-102% of Italians, 90-101% of Spaniards and 92-99% of Romanians applied under the Scheme. Based on these numbers, more people from these countries have applied than the ONS even estimate are in the country – and there is another year of the transitional period to go, in which more applications are anticipated.
Clearly, there is little oversight on how well the Settlement Scheme is taking off. We do not know how many people have applied today – let alone how many people are supposed to apply by the cut-off date of 31 December 2020. Either the estimated number of EU nationals in the UK is inaccurate, or the double applications under the scheme have troubled the numbers – or both.
Christopher Desira is Seraphus’ director and founding solicitor. He has over 15 years of experience in immigration law. Since 2018, his team has been special advisors on Brexit to the European Commission Representation in the UK. In that position, his team gives free non-political information sessions on EU citizens’ rights in the UK in the context of Brexit.
So, you give workshops to advise on the EU Settlement Scheme. What happens at those workshops exactly, what is your goal there?
It’s a two-pronged aim, really. On the one hand, we want to communicate the scheme and the need to apply by the deadline, and then secondly, we try to give everyone the tools they need to make the applications themselves.
We try to explain the EU Settlement Scheme as in simple terms so that EU citizens and their family members can make applications under the scheme themselves without the assistance of a lawyer. The seminars are very practical-based – we tell them how to apply, what questions come up, how to answer those questions, what the pitfalls are and what evidence they need to provide.
What happens if people don’t apply by the deadline?
If someone does not apply before the deadline, on New Year’s Day 2021, under the current rules, they will be unlawful residents in the UK. That has immense implications: if you’re unlawfully resident, that means all of the hostile environment policies which are in place in the UK will apply to you.
The hostile environment mechanisms are built to make life in the UK as difficult as possible, forcing you to leave the country. Your employer will have the right to terminate your employment, your landlord could terminate your tenancy agreement, you can no longer use your driver’s licence, etc. If someone does not apply before the deadline, that is exactly what will happen to them: they will be unlawfully resident, and all of those mechanisms will start hitting them.
Brandon Lewis, a Home Office Minister, got into a lot of trouble about a month ago when he he told a German newspaper that EU citizens who fail to apply to the settlement scheme will be deported. But in reality, what he was saying was true, and this is part of the challenges that we face. The Home Office communication campaigns are good. They are becoming warmer and friendlier, sending out messages to EU citizens saying that the UK wants – and needs – them to stay. What the Home Office communication campaigns fail to do, however, is stress the importance of applying before the deadline. They don’t stress that if one doesn’t apply before the deadline, they will be unlawfully resident in the UK, and the Home Office have the right to ask them to leave. Those messages might start appearing nearer to the deadline, but it might be a little too late for some.
Who do you think bears responsibility for people failing to apply because they don’t have the knowledge and why?
There is a lot of people out there that are doing a lot of good work to try and make sure that we reach everyone we need to reach but the ultimate responsibility is with the Home Office.
Although they are doing a lot of good work on communications, it is likely not going to be enough. I worry that the communications may be used against late applicants later. So that for example, if someone applies late and their reason is that they did not know about the scheme, the Home Office can say: “We did all of this work to let you know, so that is not a good enough reason to apply late.”
In any case, whatever the Home Office does and whatever all these other organisations such as charities or the European Commission do, there will always be groups that don’t apply, no matter how much communications work has been done. The UK government has an obligation to those people as well. They need to make sure that 100% of people who need to apply under the scheme effectively do so. The Home Office can change current rules to ensure no one fall unlawfully resident on New Years Day 2021, and they may well do so, but if that doesn't happen those who apply late will be doing so while unlawfully residing here.
Which type of audience usually shows up to the workshops?
It depends who is organising the workshops and who they are advertised to; it varies immensely. We have done workshops set up by the advice sector who want to help their local community, for example. Those would be advertised to the whole European community there, so anyone can turn up. Sometimes it is more specific, for example if it is a Polish charity, it is catered towards polish citizens. Or if it is a consulate or embassy which organises the workshop, then it is only citizens from that specific country who turn up. And then there are also community champions. A community champion is someone within a community that is not a legal entity or part of a charity, who wants to help their community on their own initiative because they know their community needs help.
Each community necessitates different types of sessions and poses different challenges. The Home Office communications campaigns work for a lot of people, but there is going to be just as many people that will require their own community to help, and if there is no one within their community who is going to point that out, then they are going to miss out on the knowledge they need to apply under the scheme.
What are some of those challenges? What do you think is the biggest barrier for people to apply?
There is a long list. It could be language, or education. It could be physical or mental health issues, dependency issues, street homelessness, living in precarious residence accommodation, or a combination of a number of those. More broadly, it could be people living in religious or close-knit communities, like the Roma community for example. People with criminal convictions, however minor or serious, would also be less eager to apply because they would be worried about the impact of those offences on the outcome of their application.
It really is a long list.
Yes, and to make matters worse, usually someone who has some kind of vulnerability has more than one vulnerable characteristic. For example, someone who has dependency issues may also be street homeless. Needless to say, the more issues an individual has, the harder it is to reach them and the harder it will be to ensure those people apply without any legal assistance.
Another category of people I’m worried about is those who simply don’t apply on principle. I have met many people who have said they don’t want to apply to the settlement scheme. They think: “Why should I, I have been here for 40 years, what are they going to do? I’m 72 years old, are they really going to put me on a plane? Are they really going to send me home?” Well, unfortunately, the answer to that is yes, that is exactly what they will do, or at least they can if they want to under the current rules. However old you are, however young you are, if you don’t have a status and you’re unlawfully resident on New Year’s Day 2021.
Is the Home Office making an effort to address these issues?
To be fair to them, they have listened to advice on the fact that technology is going to be a barrier and they have tried to find ways to resolve that. For example, there is a service called assisted digital service, where people can get practical assistance with filling in the forms. They are listening where they can and want to.
Many local authorities are taking the initiative themselves with so-called “one stop shops” where people can turn up and use a computer if they cannot access one, and where staff will help them engage with the technical barriers as well. But it’s just not going to be enough; there will still be many people who will not or cannot apply unless they have someone holding their hands for the whole process, someone applying for them.
What do you think is the one thing which should be done differently in relation to the Settlement Scheme?
Part 2 of the withdrawal agreement discusses EU citizens’ rights. It outlines two ways of sorting out people’s residency rights. On the one hand, it discusses how to implement an application scheme to grant rights and how simple such a scheme should be. If a country does not want to implement that type of scheme, then it discusses an alternative system of declaring rights. The reason why there are two different mechanisms in the withdrawal agreement is because this is not just an issue in the UK– it’s a problem in the EU more broadly, as each member state will need to decide what they are going to do with British citizens living abroad.
So, in summary, each EU member states has two options. The first is to implement an application process, which means that at some point in the future, anyone that does not apply and gets granted a status will be unlawfully resident, at which point in time their residency rights end. That is the model the UK has adopted.
Alternatively, countries can introduce a declaratory scheme. A declaratory scheme essentially establishes that the rights one has now will be carried through with them for their lifetime. Residents can then obtain physical evidence of their lawful lifetime residence right by asking for it. This is kind of how EU law works: as long as you are doing the right things, you acquire EU rights, and these rights continue with you as long as you continue to do the right things. Applying this to the UK, as long as one would have lived in the UK by a specific date, they would continue to be lawful residents in the UK. That means someone could never be unlawfully resident as long as they lived in the UK before a certain cut-off date. All they need to do is show up and say they lived in the UK since before 31 December 2020, confirm some information, and the government would give them a piece of paper, no questions ask.
The settlement scheme should be a declaratory scheme instead of what it is now. I think that is the only way we can protect everyone, including the most vulnerable to exclusion, through this process.
On 11 September 2019, the UK government announced an extension of the post-study visa rules. International students who complete their degree at a recognised institution will be able to stay in the UK for two years after graduation, increasing their chances of finding long-term employment upon completion of their studies.
The current immigration policy gives students just four months to find work after graduating. As the country is preparing itself for a fall in recruitment from the EU for education and employment alike when freedom of movement ends after Brexit, the announcement was greeted with enthusiasm by both the education sector, which only benefits from attracting more international students who pay higher tuition fees, and the business sector alike.
Grace Kuperman, a US national, graduated with a First-Class Politics BA from a Russel Group university. She is now writing her dissertation for her MSc in Security Studies at University College London.
“For certain sectors, such as British politics, I understand to an extent to why British employees are preferred, but I have studied here for almost four years now and I feel as though certain fields in the UK are missing out on valuable potential employees due to visa restrictions.”
The pressure of the current rules on international students in the UK should not be underestimated. One recent graduate, Tracy Jawad, moved back to Beirut, Lebanon in October 2019 when her student visa expired. She studied Politics at Queen Mary University of London.
“I think that a lot of people from the same background as me just jumped into masters to avoid having to leave the country. I decided not to do that because I wanted to get some work experience first, and because a masters degree is a substantial investment.
I was applying for graduate jobs from October 2018 onwards. It was an extremely difficult and unfair process; often job descriptions did not specify that they would only accept UK, EU, or even Commonwealth citizens. Only when I got rejected, after having gone through the whole application process, would I find out. Even then, I was the one who had to reach out and ask for feedback as to why I didn’t get the job, and companies would then respond my application was side-lined because an international student is less employable than a home or EU applicant.”
The Home Office publicises the reforms to the rules as an answer to the problem Tracy outlines: a new way of attracting young international talent. Home Secretary Priti Patel championed the extended post-study visa as a “new way for talented international students, whether in science and maths or technology and engineering, to study in the UK and then gain valuable work experience as they go on to build successful careers.” However, there are multiple caveats.
The Home Secretary’s enthusiastic announcement fails to mention that the two-year extension is not a “new route” into graduate success. It is simply a revocation of the current policy, which was controversially put in place by Theresa May in 2012 as part of the hostile environment policy against illegal immigrants in the UK, and which has been contested ever since.
Tracy: “If there is such a hostile environment against international students, then UK universities should not be allowed to use us as poster boys, or as alluring marketing ploys. All you ever hear about Queen Mary is how diverse it is, but ultimately, as one of those people bringing diversity to the university, I have not benefitted from Queen Mary’s international community; I’m back in Beirut now.”
The new policy will not apply retroactively; only students graduating in 2021 and thereafter will be able to access the scheme. This puts current students at a competitive disadvantage with future students.
MM, who wishes to remain anonymous, moved to London from Egypt to study Business Management at undergraduate level and is now reading a MSc in International Marketing at King’s College London, explains:
“I don’t think I got a fair shot at finding a job in the UK, definitely not. Due to the preference for EU and UK graduates, job offers clearly state that they do not sponsor an international working visa or permit. Because of this, I didn’t even apply for jobs within the UK, as I felt like there was no point. Instead I embarked on a masters degree to have more specific qualifications within my industry, and hopefully that will increase my employability.”
“I’m happy my younger sister might have better chances at finding a career within the UK should she choose to study here, but for me, it is too little, too late.”
Tracy, who will be eligible for the two-year extension should she start her masters next academic year, says:
“When I heard of the post-study visa extension, I was mostly really happy for myself, that I did not immediately started my masters upon graduation. Thanks to my decision to move back and rethink my options, I will now have two years after my masters degree. That is such a relief, because finding a graduate job is not something that can be done in 4 months.”
“For the UK more broadly, more people are now going to want to study there because the new rules show a willingness to invest rather than just make money out of international students. Plus, although there will still be a cost to hiring an international graduate, it will be easier for students to find companies which are more likely to take on that financial burden.”
However, even given extra time, international graduates in certain sectors will still be disadvantaged. Grace attests to this: “Fields that are flooded with large multi-national corporations, like finance, can afford to hire international students. For me, who is interested in international organisations and politics, it is much harder. NGO’s are famously short on funding and prefer British applicants above all else.”
Tracy confirms: “STEM majors are more likely to get jobs in the UK than humanities majors. When I spoke to other Lebanese people who were applying to jobs at the same time as me, but with Engineering or Computer Science degrees, they were clearly more likely to at least get interviews. It requires funds to sponsor foreign students and unfortunately, humanities organisations do not have as much money as STEM companies. That is not how it should be.”
As the new rules apply to all non-British students, they will bring EU students to a level playing field with international students. This would not only boost the economy, but also avoid a brain drain to countries whose rules are more relaxed, and let their graduates stay for longer periods of time post-graduation. At least that’s the idea. In practice, EU students will face many challenges: tuition fees, already elevated for international students, will probably rise further for those from the EU, until they are equal to international levels. Meanwhile, EU funding and the future of Erasmus after Brexit are all up in the air.
It is unfair to make international students pay almost twice as much in tuition fees, without any guarantee of a job afterwards, or at the very least the time to look for one. From that perspective, the post-study visa extension is more like a bare minimum than “a transforming new way for talented international students to build successful careers in the UK,” as it has been described by Ms. Patel. Instead of slightly improving international students’ perks at the cost of dragging EU student benefits down, the government’s aim should be to increase all graduate opportunities. University graduates benefit the UK just as much as the other way around. That should be enough of a reason to end the marketisation of education once and for all, and although a two-year extension may seem like a step in the right direction on the face of it, it is not the end of the road for international or EU students.
The second quarterly UK Home Office statistics on the EU Settlement Scheme scheme has been published.
According to the Home Office it 'complements high-level monthly statistical releases on the progress, taking an in-depth look at the number of applications and their outcomes, covering the period between the launch of the beta scheme to the end of Q3 2019 (28/08/18-30/09/19).'
One thing that stands out is the low number of applicants from the age group 65 or older. According to the statistics only 2% of the total applications came from people aged 65 or older.
The Home Office say that the share of applications from this age group matches their estimates for age distribution of EU citizens in the UK. Indeed @ons predicts a share of 2% to 3% for elderly EU citizens.
But some embassies/consulates which register their citizens record a higher percentage of residents aged 65 or older, with reports in the region of 5-6%. This suggests that take up of the scheme by this age group is currently low.
Anecdotally, this reflects my experience meeting those aged 65 or over living across the UK through the course of the last 2 years. While many can and have applied, a majority of whom I have met would be unable to get through the system unaided.
I was in Kettering on 28/09/19 meeting a community of Italian residents aged 65 or older. The majority would not have been able to apply unaided despite efforts to verbally walk them through the process. Most did not have mobile numbers, nearly all did not have email address.
Instead of a presentation and Q&A we gave up our Saturday to submit applications on their behalf. We registered over 30 residents, all of whom were on course to obtain settled status but would have been unable to do so without this assistance.
Not withstanding the grant funding, the various communication campaigns and the free services we do have out there, I am still concerned that many 65 or older residents will struggle to apply before the deadline and access their status after the deadline.