Six months after the EUSS was piloted in November 2018, the Migration Observatory published their initial report analysing which EU Citizens were at risk of failing to secure the rights to which they are entitled after Brexit through the EU Settlement Scheme (EUSS). As time passed, it became increasingly clear that the EUSS process had many flaws, including the double-counting of applications, inaccurate estimates of the number of EU nationals living in the UK, and the Home Office’s inability to ensure vulnerable communities actually know about and apply to the Scheme. Now, with less than 12 months left before the closure of the Scheme on 30 June 2021, many cracks in the EUSS system still remain. Vulnerable applicants especially, whether at risk of missing the deadline due to their age, language abilities, technological abilities, health issues, home circumstances or something else, are still not applying in as great of a number as they should be.
The lack of outreach to certain vulnerable communities, and the challenge the EUSS in its current form poses to them, is a real problem for many individuals who have been living in the UK for years. One example of such a vulnerable community is the Roma people, of which it is it is estimated that there are at least 200,000 living in the UK, the vast majority in England.
The Roma community is made up of people from different sub-communities, from different countries and nationalities across Europe. They speak different languages and often interact mainly with people from their known, relatively closed network. Combined with a low literacy level within their community, this makes it hard to spread information about external issues like Brexit and the EU Settlement Scheme into their circles.
As such, the Roma Support Group reported that the vast majority of Roma people they interviewed knew about Brexit, but were unaware of specific information on how to apply for immigration status after Brexit. The ones that did know about the EUSS did not acquire that knowledge through the traditional channels of Home Office communication outlets such as adverts, radio, social media, etc. Rather, they get their information from trusted individuals within their community.
Of the Roma people that have already applied to the EUSS, which is only a minority, a significant amount required additional support and time to submit applications; in fact, only 3% of Roma people who have applied to the scheme to date were able to do so completely independently. These extremely low numbers are not surprising when considering that Roma people are less likely to be IT proficient, and more likely to need language support, than other EEA nationals in the UK.
To make matters worse, Roma people’s applications are often amongst the most complex ones. Roma people often encounter difficulties when trying to obtain ID cards, which is one of the requirements when applying under the EUSS. The Roma Support Group reports that Slovak Romas, for example, have difficulties in obtaining passports, especially for their children born in the UK. The waiting times for appointments at the Slovak Embassy is approximately 3 to 4 months, the Embassy operates only in London and due to financial and time restrictions, many Roma are not able to obtain their passports in the UK. Some Slovak Roma have already travelled to Slovakia to apply for passports for their children because that turned out to be easier than obtaining them in the UK.
Even if they do have ID cards, Roma people often have a harder time proving their residency due to their community lifestyle and culture. Examples of complicated applications include Roma rough sleepers and Roma women, who are less likely to be employed, making it harder for them to prove their residency. As a consequence, many of them end up receiving the wrong status. In fact, 15–25% of Roma women and elderly Roma the Roma Support Group engaged with had to apply for pre-settled status despite having lived in the UK for more than 5 years, to avoid the difficulties that they face in providing the documents needed to obtain settled status.
Coram, a legal charity founded in 1981 that works to promote children's rights both in the UK and abroad, states that the Home Office is also failing to recognise a particular gap in applications coming from children in the UK. With more than 900,000 eligible EEA citizen children thought to have been living in the UK in 2017, less than half had been granted status under settlement scheme by 31 March 2020. Of eligible children in the care system, the number of which is estimated at 9000, only about 500 had secured status by that same date.
Many of these children will be British citizens either by birth or through registration, but are not aware that they need to register in order to confirm their citizenship. The children who fail to do so are at risk of losing both their citizenship and their EUSS status after 30 June 2021, warns Coram.
Additionally, Coram highlights the issues that arise form granting vulnerable children pre-settled status, stating that vulnerable children should not be granted short-term forms of immigration status, as these do not offer adequate levels of protection. Short-term immigration status such as pre-settled status not only pose challenges for local authorities seeking to plan for children’s futures, but also very immediate challenges for young people who must undergo a probationary period before being able to settle in the UK. Additionally, children granted pre-settled status may not always understand that they will need to re-apply in order to remain in the UK lawfully. If they fail to do so in time, they are at risk of hundreds of thousands of people falling out of the EU settlement scheme and losing their residency rights.
No child or young person who previously held pre-settled status should fall off their route to settled status in the event that they do not make the settled status application at the right time. To prevent this, Coram asks that the Home Office should at the very least commit to prompting holders of pre-settled status before their status expires and telling them what they need to do to remain lawfully in the UK. Ideally, it would go beyond that and introduce a provision to grant settled status to all looked after children and care leavers who apply to the EU settlement scheme, because grants of pre-settled status are simply not in these children’s best interests.
This is something immigration experts on all sides of the political spectrum have warned for ever since the EU Settlement Scheme was introduced. No matter how much funding the government provides to help vulnerable people apply to the Scheme, it will not reach everyone it needs to, and vulnerable people who fail to apply in time will bear the consequences.
That is why practitioners and third-party organisations campaigned to make the EUSS a declaratory scheme instead of an active application process, in order to ensure that vulnerable groups such as Roma people and children would not be penalised unnecessarily and get the status they are eligible for. These efforts were in vain, as the Home Office reiterated only a few weeks ago that all EU citizens wishing to secure status in the UK will have to apply under the EUSS in its current format in order to remain lawfully resident and not become subject to the hostile environment rules.
EU support groups have since scaled back their recommendations. Coram, for one, have advised that in order to avoid EU children becoming unlawful residents in the UK, the £1012 citizenship fee currently charged to children, which prevents many children from accessing their rights, should be scrapped, vulnerable children to be identified more accurately across the country, and the EUSS deadline should be extended. Disappointingly, the Home Office, on their behalf, has clarified that the government does not plan on extending the deadline, even in light of the COVID-19 pandemic and all the consequences that flow from it. It has not proposed any other clear changes to accommodate children at risk, except clarified that social workers have an explicit duty to apply help children in their care apply under the Scheme.
To avoid a political and moral disaster when it turns out that members of these vulnerable groups have not applied to the Scheme in time, the Home Office will have to give and do more – more outreach, more time, more flexibility, and more humanity.
Since the EU Settlement Scheme has fully opened on 30 March 2019, there have already been more than 3.5 million applications from EU, other EEA and Swiss citizens, and their family members. Applying to the scheme is mandatory for all EU citizens and other EEA/Swiss nationals who wish to continue living in the UK lawfully after the transition period. EU citizens have until the 30 June 2021 to apply under the Scheme. If they do not apply on time, they will be unlawful residents in the UK.
Just like every other aspect of life, and every other government service, the EU Settlement Scheme has been heavily affected by the coronavirus-induced lockdown. The (temporary) closures of phone advice lines, local scanning centres, and the inability to send in documents have had a severe impact on the reach and success of the EUSS.
When the UK lockdown measures came into force on 23 March 2020, all face-to-face support services for EUSS applicants were shut down. Visa centres and passport scanning locations closed. The postal route for making applications, which those without biometric passports or access to the mobile scanning application have to use in order to apply, temporarily stopped operating.
Additionally, many national embassies and consulates remain closed except for emergencies. This means that EU nationals who need to request or renew their ID documents in order to apply to the Scheme cannot do so. Even when those consulates reopen, there will be a backlog of applications, putting those who do not have a valid form of ID at an increased risk of missing the EUSS application deadline of 30 June 2021.
EEA nationals currently stranded abroad due to lockdown measures around the globe are also increasingly at risk of falling through the cracks. If an EEA national wants to obtain settled status under the EUSS, they will have to prove five years of continuous residence in the UK. Continuous residency means that they do not have more than six months of absences in any 12-month period. The general rule is that the Home Office allows for one longer absence from the UK for an ‘important reason,’ such as illness, but no pandemic-specific guidance has been given. As travel remains disrupted and discouraged across the globe, EEA nationals looking to apply for settled status in the next five years risk breaking their continuous residency and jeopardizing their future immigration status if the Home Office do not operate a flexible approach to absences. Although, the European Union perspective is that absences as a consequence of the pandemic should be disregarded entirely.
This week, Home Office support services and application routes are slowly but surely starting to reopen. In addition to a range of online, telephone and email support for those who have questions or need help applying, the postal route for making applications has now reopened, meaning that those without biometric passports or access to the scanning app can make their applications and send their ID documents to the Home Office. The ID scanning locations, however, remain closed.
Community groups across the UK have tried to make up for the reduced services, and continue to work with vulnerable EU nationals during the lockdown, but there is no denying that webinars and online assistance are less effective than the real thing. As a consequence, new applications to the EUSS halved in April, bringing them to their lowest since the launch of the Scheme. Yet, the Home Office has confirmed that they do not plan on extending the EUSS deadline, making EU citizens increasingly worried they might lose their ability to secure their right to long-term residence in the UK because of the pandemic.
When Brandon Lewis MP stated that EU citizens who miss the EU Settlement Scheme deadline could face deportation, it was a wake-up call for all EU citizens in the UK. The 3 Million, the largest campaign organisation for EU citizens in the UK, and one of many organisations advocating for a declaratory instead of a constitutive scheme, called upon the government to ensure that law-abiding EU citizens living in the UK do not fall subject to the hostile environment as unlawful migrants merely due to a formality such as a missed deadline.
At the time, the Home Office sussed the situation by reiterating that they “are looking for reasons to grant status, not refuse, and EU citizens have until at least December 2020 to apply.” A spokesperson said: “We’ve always been clear that where they have reasonable grounds for missing the deadline, they’ll be given a further opportunity to apply.” Mr. Lewis personally clarified that EU citizens will have enough time to apply, and highlighted that the Home Office will accept late applications.
“It is not true that as a general rule, eligible persons who remain in the UK without registration are here ‘unlawfully’. For most purposes, there ought not to be legal consequences,” said Professor Bernard Ryan of the University of Leicester. Guy Verhofstadt, the EU Brexit spokesman, also reported being told by the Government that there would be no automatic deportation for EU citizens who fail to apply to the Scheme.
Now, the Secretary of State for the Home Department Priti Patel confirmed in writing what grassroot organisations always feared, and Mr. Lewis hinted at in October: that those who fail to apply to the EU Settlement Scheme by the deadline of 30 June 2021 will be unlawfully resident in the UK. If information regarding EU citizens’ rights after Brexit was previously conflicting, the Home Secretary now clarified once and for all that late applicants will be subject to the hostile environment rules during their period of unlawful residence.
Ms. Patel made the remarks in response to a letter from the Home Affairs Committee outlining various concerns regarding EU citizens’ rights in the UK after Brexit. The Home Secretary wrote that “those who have not applied to the EUSS by the deadline will not have lawful status in the UK. This means, for example, they will not be able to evidence a right to work or rent if they seek new employment or a new private rental property during the period in which they have no lawful status.”
In the same breath, Ms. Patel stated that late applications to the EUSS “for good reason” will be accepted as valid. Some examples of good reasons given are children whose parent or guardian do not apply on their behalf, those in abusive or controlling relationships who are prevented from applying or accessing the documents they need to do so, and those who lack the physical or mental capacity to apply. If these examples are an indication of what may constitute “good reason,” the bar seems to be set high and at the Home Office’s discretion.
In other words, people who fail to apply to the EUSS by the deadline will lose the right to rent and work, as well as lose access to most social services and benefits including free NHS treatment. They will be subject to the hostile environment rules until they acquire status under the Scheme, assuming they do successfully apply late, which in itself is a strong assumption to make considering late applicants must meet the “good reason” policy. Even if they do get status, late applicants will face consequences of their interim unlawful residence until years after the facts, not in the least because they will not be able to naturalise as British citizens for a further 10 years.
Last week, the Home Affairs Committee hosted a livestream with Ms. Patel to discuss the Home Office response to the COVID-19 outbreak. The online discussion was meant to offer reassurance at a time of crisis. Concerning EU citizens’ rights, Ms. Patel confirmed that there will not be an extension to the deadline to apply for the EU Settlement Scheme. Except of that reiteration, she did not address many of the concerns which EU citizens in the UK have brought to her attention since the COVID-19 outbreak. Most importantly, she failed to address the effect of breaks in continuous residence due to the coronavirus outbreak, except to say that the government will be “flexible.”
A pattern emerges here, whereby there is a lot of talk about Home Office flexibility and cooperation at the government’s discretion, but very little clarity about what that translates to in practice. The Home Secretary’s letter reiterates the government’s known position on a number of issues without offering clear answers to the questions asked. It provides vague statements instead of hard facts and lacks a legal framework to resolve the pitfalls the Committee flagged up.
These ambiguities and failures on behalf of the Home Office will impact the most vulnerable and marginalised citizens most devastatingly, as they are least likely to apply to the EUSS at all, let alone before the deadline. As per the 3 million, even if the EU Settlement scheme performs as well as the UK's most successful campaign ever - to switch everyone to Digital TV (97% of people signed up by the time analogue TV was disactivated) - over 100,000 EU citizens would still lose their legal status and face the full consequences of the government's hostile environment. Following the Home Secretary’s comments, those 100,000 people will be at the discretionary mercy of the Home Office.
In the EU Settlement Scheme (EUSS) statistics produced by the Home Office on a monthly and quarterly basis, refusals are contained within the statistics for what is known as “other outcomes”. This means that refusals constitute EUSS decisions that do not result in either a grant of indefinite leave to remain (settled status), or limited leave to remain (pre-settled status). It is important to understand the other outcomes that can occur under the EUSS as this will dictate what action, an applicant should take. The types of outcomes that can occur are the following:
- Invalid Application
- Withdrawn or Void outcome
- Refusal to grant EUSS status
- Grant of pre-settled status not settled status (note this is not recorded as another outcome in the Home Office EUSS statistics. It is not recorded as a decision at all as the HO only reports grants of status)
The most recent set of Home Office statistics, which cover the lifetime of the EUSS to the end of March 2020, state (to the nearest 100) there have been 10,000 invalid applications, 23,900 void or withdrawn outcomes, and 600 refusals. These “other outcomes” have been expanded on below with an explanation of why a person would receive this outcome and what, if anything, they can do about it if they disagree with the outcome.
For someone who wishes to be granted status under the EU settlement scheme, the first hurdle to jump is to have your application considered as valid. Appendix EU of the Immigration Rules tells what you must to do to make a valid application:
EU9. A valid application has been made under this Appendix where: (a) It has been made using the required application process; (b) The required proof of identity and nationality has been provided, where the application is made within the UK; (c) The required proof of entitlement to apply from outside the UK has been provided, where the application is made outside the UK; and (d) The required biometrics have been provided.
The required application process means either using the online application form unless you are applying in a category that requires a mandatory paper application form (applications involving derivative rights, ‘Surinder Singh’ and ‘Lounes’ cases or, where the applicant has no valid ID document), or you have convinced the Home Office that you should be allowed to a use a paper application form because you are not able to use, or do not have access to the IT needed to complete the online form. You will not be able to apply to the EUSS via any other route.
The required proof of identity and nationality means having a valid passport or ID card if you are an EEA/Swiss citizen. If you are a non-EEA/Swiss family member applicant, it means using a valid passport, a valid biometric resident card issued under the EEA Regulations or, a valid biometric resident permit in an immigration category. There is a caveat to providing a valid document in this list which, is the Home Office can allow alternative evidence of identity and nationality due to circumstances beyond the applicants control or, because of compelling practical or compassionate reasons. The required biometrics means a photograph of the applicant for all applications and in the case of non-EEA/Swiss applicants, fingerprints unless they hold a valid biometric residence card issued under the EEA Regulations or under Appendix EU (for applicants holding pre-settled status and making a settled status application).
Failure to complete these steps means that your EUSS application will not be validated. In other words, there is no consideration as to whether you are entitled to be granted EUSS status (consideration of your eligibility or suitability for status), because you never reach this stage of the process. The way to know that you have completed the validation process is that you receive a certificate of application from the Home Office; this is a PDF or physical letter (in cases where a paper form is submitted), that confirms a valid application has been made. Unless you have received this letter, you have not made a valid application and therefore will not receive a decision on whether you are eligible for a grant of EUSS status. It is therefore extremely important that you receive the certificate of application and if you do not, you should investigate with the Settlement Resolution Centre, what part of the validation process remains outstanding. An application that is not validated will eventually be declared invalid and removed from the Home Office system. If this situation arises then generally the only thing to do will be to reapply to the EUSS rectifying the reason why the application was declared invalid.
Withdrawn or Void applications
An applicant can choose to withdraw their application themselves by notifying the Home Office through the Settlement Resolution Centre. For a valid application, the request to withdraw can be made anytime between the submission date and before a decision is made. A request to withdraw is made either using the online Settlement Resolution Centre contact form or by writing to the Home Office in Liverpool. It should be noted that the Home Office is not obliged to withdraw an application if there is reason to believe that it would be refused were it to be fully processed.
A void outcome is where a British citizen, or a person who is exempted from immigration control, attempts obtain immigration status under the EUSS. As these two categories of persons cannot hold immigration status, their attempt to obtain status through the application process is considered void. For British citizens this is an uncontroversial outcome, however, it is not always a straightforward assessment as to whether someone is immigration exempt (there is separate Home Office guidance on who is considered exempt). Exemption from immigration control is based on a person’s circumstances and will generally be temporary. This means that once a person is not exempt from immigration control, they will require immigration status if they wish to remain residing in the UK lawfully. The Home Office has answered when questioned on this point that, for a person who is eligible for status under the EUSS, but for the fact they are presently exempt from immigration control, they will be able to apply to the EUSS in the future – and crucially beyond the 30 June 2021 deadline – at the point when their circumstances change and they are no longer exempt.
The EUSS statistics define a refusal outcome where a valid application results in no grant of immigration status. Appendix EU provides two reasons to refuse an application, firstly on a suitability basis (that a person’s character or conduct makes them unsuitable to be granted status), or, secondly on an eligibility basis (that they have failed to demonstrate that they are eligible for a grant of status). Within the latter category, you can break down the failure to demonstrate eligibility in two:
- failure to show UK residence eligibly and / or;
- failure for a non-EEA/Swiss applicant to show eligibility through a qualifying family relationship (either in the present or in the past)
(a) Eligibility refusals and the burden of proof
It is important to remember that in a constitutive application system, it is incumbent on the applicant not just to be eligible based on their circumstances but, to be able prove with evidence that they are eligible for a grant of status. This means, in most cases something that is claimed by an applicant which goes to the heart of their eligibility under the EUSS, must be proved by the evidence they provide. For example, evidence that the applicant is a UK resident before the end of the transition period (such as a utility bill or bank statement) or, proof that a non-EEA/Swiss family member is related to an EEA/Swiss citizen or qualifying British citizen (a marriage certificate for example). For those applying under the dependent relative and durable partner family relationships, the applicant must apply with a document that has been issued under the EEA (European Economic Area) Regulations otherwise the application will automatically be refused on eligibility grounds.
The burden of proof in civil cases is “the balance of probabilities” which means that the evidence shows that something claimed is more probable than not to be true (in other words more than 50/50 to be true). The Home Office has stated that in respect of the eligibility refusals that begun from February 2020 onwards, multiple attempts (sometimes more than 20), were made to contact applicants and request the evidence from them that would show that they eligible for a grant of status. In other words, it was the applicants’ failures to provide evidence in spite of these requests that meant that the burden of proof had not been met with the refusal decision following. Without understanding more about the grounds that the refusal decisions were made, it is impossible to know whether the outcomes were correct or not. These cases do though show the importance of ensuring contact information given to the Home Office in the application is correct and from the Home Office side, ensuring that every effort is made to contact applicants when issues arise.
After the end of the grace period for EUSS applications (currently the grace period ends on 30 June 2021), there will start to be eligibility refusals where a holder of pre-settled status, cannot prove that they have been continually resident in the UK for the 5 years normally required to be granted settled status. There are some questions that remain about this situation however, the working assumption is that after the end of the grace period, an EUSS applicant who holds pre-settled status cannot be granted a second period of pre-settled status. This means that a pre-settled status holder has to be able to prove their eligibility for settled status otherwise, they will be refused status outright.
(b) Refusals based on suitability
Before February 2020, there had been seven refusals of EUSS status because the applicants failed the suitability assessment required under Appendix EU. The Home Office states the suitability criteria is generally met where the applicant has demonstrated in their application:
- they are not subject to a deportation order/decision or an exclusion order/decision
- they have not breached the relevant thresholds for serious or persistent criminality
- they have not submitted false or misleading information or documentation in their application
Since the Home Office began refusing applications on eligibility grounds, the statistics provide a percentage of which applications are refused on suitability and which are refused on eligibility. The balance in the March 2020 statistics report says, “of the total refusals, 98% were refused on eligibility grounds and 2% were refused on suitability grounds”. Although the 600 refusals are a figure rounded to the nearest 100, 2% refused on suitability grounds equates to approximately 12 suitability refusals with the remainder being made on eligibility grounds.
(c) Paper application refusals
The March EUSS statics included for a statement on EUSS applications made using a paper form:
“Applications made using a paper form are captured and processed using a separate caseworking system once they have been received. At present, paper-based applications are not included in the published statistics. This means that the total number of applications received, grants of status, and other outcomes (refusals, withdrawn or void, or invalid cases) are not fully captured in the report. The Home Office is currently developing electronic integration of the two systems with information on paper applications due to be included in the next detailed quarterly EUSS statistics release in May 2020”
As the mandatory paper application process is generally reserved for more complex EUSS categories (the categories are set out above), it would be a reasonable assumption that the quarterly EUSS statistics will contain more refusal decisions based on eligibility grounds.
(d) Challenging a refusal decision
There are a number of ways in which to challenge EUSS refusal decisions, which option is available and most advisable will depend on the date of application and whether the refusal is based on suitability or eligibility. Generally, for a suitability refusal the only way to challenge the outcome will be to appeal to the Immigration Tribunal. The reason for this is because a deportation or exclusion decision results in a mandatory refusal of EUSS status and so, this decision must be overturned first in order for the applicant to be granted EUSS status. Repeated attempts to make fresh applications to the EUSS whilst a deportation or exclusion is in place will simply result in repeated refusals on suitability grounds.
With a refusal on eligibility grounds, there are three possible avenues of redress:
i) Appeal to the Immigration Tribunal (for applications made after 31 January 2020)
ii) Apply for Administrative Review of the refusal decision
iii) Make a fresh EUSS application (as long as this is done before 30 June 2021)
Which approach is best to take will be down to the individual circumstances of the applicant (noting that an Immigration Appeal is only available for recent applications). The Home Office decision will set out in writing the reason(s) why the applicant has failed to meet the eligibility requirements and it may require a lawyer’s input as to the best way to address the decision. For example, if the refusal was based on a lack of evidence and new evidence has since become available, it may be best to lodge a fresh application with the new evidence. If however, there is no new evidence available, it may be that the best approach will be to appeal to the Immigration Tribunal so an Immigration Judge can decide whether the balance of probabilities has been satisfied, based on what evidence was submitted to the Home Office. For refusal decisions where the applicant needs to argue that Appendix EU is in breach of the EU/UK Withdrawal Agreement, the only really option is likely to be an appeal to the Immigration Tribunal which has power to look outside of the wording of Appendix EU to determine if a person’s rights under the Withdrawal Agreement have been infringed. By comparison, an Administrative Review (or a fresh application), only looks at whether the decision was correct based on the wording of the Immigration Rules and accompanying caseworker guidance.
Pre-settled status not settled status
What is not included in the Home Office statistics is the outcome where an applicant believes that they should be granted settled status but instead, receive pre-settled status. The only reason this outcome can occur is where the Home Office says that there is not enough evidence to demonstrate that a person has resided in the UK for 5 years or more (unless they are applying in the category of “ceased activity” or as a child under 21 years linked to a sponsoring parent). A reason why these cases are not recorded as a refusal in the statistics is because an application to the EUSS is for either available immigration status, not specifically for pre-settled status or settled status.
Therefore, a grant of pre-settled status rather than settled status does not constitute a refusal in the mind of the Home Office. Someone who receives the incorrect status would probably argue that the HO recording they have been granted pre-settled status, rather than acknowledging the refusal of settled status to reach the pre-settled status outcome, is a question of semantics. There is no way to know how many people have experienced this outcome, as the EUSS application process only relatively recently started to ask applicants if they have resided in the UK for more than 5 years at the point when they apply. For those who feel that they should have received settled status instead of pre-settled status, refer to the section on challenging a refusal decision relating to eligibility refusals as the same methods of redress equally apply to this outcome.
Whilst we remain in the transition period, and even once we move into the grace period, for most other outcomes under the EUSS (suitability refusals being the exception), most applicants who need to do so – remembering that void outcomes do not need or cannot have, EUSS status - will be able to “have another go” with the EUSS. By this we mean, even an applicant with an outright refusal on eligibility grounds can submit a fresh application if they have the evidence to overcome the refusal ground. That is not to say that any refusal can be overcome as there will be cases where eligibility evidence cannot be obtained; for those who receive a refusal it is important to seek legal advice from a firm such as ours to understand the basis of the refusal and the best way to approach any challenge. For those whose applications are invalidated, it is extremely important that they make a valid application before the deadline to apply to ensure their lawful residence in the UK. The concern is, of the 10,000 invalid applications, how many applicants do not realise that their application was invalidated and think that they have successfully applied and received EUSS status? And finally, for those who have lived here for 5 years or more and feel they wrong were granted pre-settled status rather than settled status, we would encourage you to apply again to show that you are entitled to settled status; it is a superior immigration status and does impact on other important rights.
As the UK prepares to end free movement, EU citizens already living in the UK have to apply to the EU Settlement Scheme (EUSS) if they want to maintain their residency rights. Whoever fails to apply by the deadline (currently set at 30 June 2021), loses their legal status in the UK, and becomes an unlawful or irregular migrant. The government has therefore invested significant efforts into creating a Scheme that is inclusive and easy to use for all applicants.
However, as we have argued before, no system is perfect, and there are significant challenges for certain groups of people who need to apply under the EUSS. The Migrant Observatory published a report confirming many lawyers and advocates worries for EU citizens’ rights. We take a look at their findings.
A key question to understand the Settlement Scheme is how many eligible people have already applied, and how many are left to apply. But the exact number of people currently living in the UK and eligible to apply to the EUSS is unknown, and estimates of the number of EU citizens living in the UK have significant limitations. Unlike in other European countries, there is no registration system or population register in the UK, and as such, the government does not know which UK residents are EU citizens. EU citizens will thus need to come forward of their own accord under the EUSS, as there is no way to track them. Additionally, the number of successful applications under the Scheme does not reflect the number of current UK residents, as some people may get their status and then leave the UK, and some applications are counted twice. It does not help that the Office of National Statistics measures the number of EU citizens living in the UK differently from how the Home Office assesses the applications and grants under the EUSS.
Equally hard to interpret is the data on whether applicants are being granted the right status, i.e. are receiving settled status when they have been living in the UK for more than 5 years, and pre-settled status if they have been in the UK for less than 5 years. If this is not the case, and people who in theory are entitled to settled status receive pre-settled status because they do not have enough evidence of living in the UK for the whole required five-year period, their future rights might be in danger. If we don’t know whether people are receiving the right status now, we will not be able to determine whether people with pre-settled status later manage to upgrade their status to settled status. The process of upgrading from pre-settled status to settled status could bring many complications.
Firstly, individuals do not always understand their immigration status. As such, applicants who receive pre-settled status may not understand that that status is temporary, and that they need to apply separately to obtain settled status further down the line. Secondly, unlike the initial EUSS application, there will not be a single deadline for people to upgrade to settled status. Instead, there will be many different deadlines depending on when the person made their initial application. This complicates the public communication around the need to apply. Thirdly, and maybe most importantly, the evidence required for settled status is more extensive than for pre-settled status. As such, the report highlights that applicants who are not covered by the automated checks and lack the necessary paperwork to prove their residence can currently receive pre-settled status with just one piece of evidence, such as a single invoice issued in the past six months; however, once the main EUSS deadlines have passed, applicants will need a full five years of evidence retrospectively to qualify for settled status.
The report also highlights the lack of data on applicants’ experience of the scheme. To encourage EU citizens to apply, the government has developed an application process that is designed to be easy to use, launched an advertising campaign and grants to community organisations to support vulnerable EU citizens. However, this is not enough, as we still do not have detailed information on waiting times, reasons for pending applications, administrative review procedures, or reasons for not granting status.
In order to understand the EUSS statistics better, as well as understand its shortcomings, and improve it in the future, The Migration Observatory states that data collection needs to change. The focus should shift from successful applications to the people who have not yet applied, and on how to reach them so that they can acquire the right status. Finally, in light of the COVID-19 pandemic, future challenges to the EUSS are unavoidable, as the outbreak disrupts EUSS assistance services, hinders data collection, and causes increased absences from the UK which may well impede EU citizens from reaching the EUSS residence requirements. There are many gaps in the evidence base about the EU Settlement Scheme, and unfortunately, the consequences of those failings will not become clear until many months or years from now. This is the unfortunate consequence of choosing a constitutive system over a declaratory one.
The EU Settlement Scheme statistics for Feb 2020 is out:
It includes 300 refusals. We’re told by the Home Office that the increase is mainly due to refusals for eligibility, not in criminality.
The two core reasons, the HO say, for the jump in refusals include:
1. Failing to provide eligibility evidence, either at the application stage or in reply to requests from the Settlement Resolution Centre
2. The non-EEA/Swiss family member failing to evidence their relationship to the EEA/Swiss national. This is could include failing to provide a marriage certificate through to not possessing the relevant document as a dependent relative.
In either scenario the HO say that they:
- have made every attempt to obtain the necessary evidence before refusing the application,
- decisions to refuse were not taken lightly, and
- ensured decisions were made at the appropriate decision making level
The number of refusals remain a significantly low number in comparison to the number of applications. And that many refusals were because of a drop in communications between both parties.
But it does raise the question if everyone who was contacted chose not to reply to request for further information or found it too complex to do so, and without access to the necessary support, they simply gave up. The HO were not able to give us this kind of granular data.
The HO assures applicants that they will pursue any necessary missing information or documentation. Or, if refused, encourages reapplications before the deadline.
A recent inspection report by the Independent Chief Inspector of Borders and Immigration advises that there should be ‘clearer messaging' about the consequences of not responding within the time-frame indicated’. We hope that this message will become clearer in time.
These statistics will cause concern and there remain a lot of questions, but we should not panic. Yet.
The HO should contact all applicants for further information to resolve issues before it reaches the decision stage. We hope they take into account the Covid-19 advice gap.
Post-Brexit, all EU, EEA and Swiss citizens (‘EU citizens’) and their non-EEA family members living in the UK are required to apply to the EU Settlement Scheme (‘EUSS’) in order to continue living legally in the UK after 30 June 2021. People who are currently living abroad, but who have previously lived in the UK for five years, may also apply be eligible for settled status.
The status of EU citizens in the UK who fail to apply to the EUSS before the deadline is currently uncertain. As such, an estimate of the number of people who need to apply would be helpful to ensure that the affected population have properly secured their rights before the deadline, so that no one is left in limbo. This is easier said than done as there is no centralised record of the number of EU citizens living in the UK, so will we ever know the true number?
The Home Office has been regularly releasing statistics on the number of applications the EUSS has received. The latest figures for January 2020 showed that:
- A total of 3.1 million applications were received by 31 January 2020
- 2.7 million applications were concluded by 31 January 2020, of which 58% were granted settled status and 41% were granted pre-settled status
- 351,800 applications were received in January 2020
At first glance, the task of estimating the number of people who still need to apply to the EUSS seems a simple exercise in comparing the number of EU citizens living in the UK to the number of applications the Home Office has received. According to the Office for National Statistics (ONS), an estimated 3.4 million EU citizens are resident in the UK.
However, the ONS has recently released a note explaining the pitfalls of applying their population estimate to the EUSS application data, advising that the two sets of data should not be directly compared.
Importantly, estimates of EU citizens living in the UK do not include eligible non-EU family members, nor does the estimate include eligible citizens who are not currently resident in the UK. The ONS statistic is also based on data from the Annual Population Survey, which does not survey people living in communal establishments such as care homes, hostels and halls of residence, people who are absent from a household for more than six months, or people studying in the UK on a shorter-term basis. The exclusion of these people suggests that the actual number of people eligible under the EUSS will be larger than the ONS estimate. Therefore, relying on the ONS estimate risks underestimating the number of people affected.
Conversely, there are people who are included in ONS population estimate who do not need to apply for the EUSS, which further complicates the numbers, for example, people with indefinite leave to enter or remain in the UK and people exempt from immigration control such as foreign diplomats. The ONS estimate is also intention-blind; there are EU citizens who are currently resident in the UK for a range of reasons, and some of them may not intend to settle here on a permanent basis, so will never apply under the EUSS.
Moreover the statistics are gathered using different methodologies. Home Office statistics count the actual number of applications made. Some of these applications will have been made by people living outside the UK, and other people will have made more than one application, for instance if they were initially granted pre-settled status and have applied again for settled status. The ONS statistic is an estimate based on a sample survey, so is inevitably more uncertain.
The inaccuracy of comparing these figures can be shown by the fact that the Home Office has already received 156,600 applications from Bulgarian citizens, whereas the ONS estimates only 109,000 Bulgarians are currently resident in the UK. This cannot be taken to mean that every Bulgarian in the UK has already applied to the EUSS.
These difficulties point to the caution needed when estimating the number of people eligible to apply for the EUSS. The number of applications received cannot be accurately compared to estimates of resident EU nationals to calculate the number of people who should apply under the EUSS. Ultimately, the true numbers of eligible citizens may never be known and the EUSS will be with us for many years after the deadline.
On 1 February 2020, João Vale de Almeida, a Portuguese diplomat, took office in the role that was created for him. There had never been an EU ambassador to the UK, because there was no need for one. After Brexit Day, this all changed. The EU has delegations in all countries that are not members of the bloc, such as Turkey and Canada; the UK is no (longer) different. As such, Vale de Almeida now sits in his rebranded West London office, which used to be the home of the EU Representation in the UK.
Until last year, he was EU ambassador to the United Nations in New York, in addition to having served as ambassador to the United States between 2010 and 2015. During his time in Washington, he helped launch trade talks between the EU and the US, and gained significant recognition for his achievements as a skillful and experienced diplomat.
Similarly to Boris Johnson, Vale de Almeida started his career as a journalist. It comes as no surprise, then, that he and Mr. Johnson have known each other since before they both moved to politics, when Mr. Johnson was a journalist for the Daily Telegraph. His link with the PM is another reason why it is him, and not anyone else, who has been put in charge of the monumental task as ambassador: to ensure the withdrawal agreement runs smoothly, and both parties hold up their end of the bargain.
The UK is to set up an independent monitoring authority to oversee EU citizens’ rights by 1 January 2021, the day the transitional period after Brexit ends. It will monitor an array of issues, including the EU Settlement Scheme, social welfare and employment rights. Vale de Almeida’s office will be complementing this service. He acknowledged that it is Brussels’ and the UK’s joint responsibility to ensure that all EU citizens obtain status under the Settlement Scheme (EUSS), and plans to increase the outreach tools in order to reach “deeper into the British society” to ensure everyone knows their rights.
At Seraphus, we have first-hand experience with these groups of vulnerable people, as we have been delivering workshops and information sessions about the EUSS to EU citizens across the country since the Home Office rolled out the Scheme in 2019. Christopher Desira, Seraphus’ director and founding solicitor, explains: “There are so many barriers for people to apply to the EU Settlement Scheme. 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.
For example, we gave a workshop to an East Timorese community in Northern Ireland. These are East Timorese citizens who have acquired Portuguese nationality. Many of them do not speak English, or at least not very well. They do not get the connection between Brexit and their free movements rights ending; they just know now that their Portuguese passport means they can live and work anywhere in the UK. They don’t know or understand that Brexit affects that. They were lucky that someone in their community who made an effort to bring all these people together in a room, invite us to attend, and function as an interpreter. He is a real community champion. If it was not for that person, that community would have no knowledge of the scheme whatsoever.”
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. This is where many external organisations, ranging from charities such as the3million or Settled, to law firms such as Seraphus, come in to reach more people in meaningful ways. Vale de Almeida has said he will specifically help vulnerable EU nationals, such as Roma people, the elderly, prisoners, or people with little knowledge of English, to stay in Britain. We hope to make good on his promise.
The government published their third set of quarterly statistics on the progress of the EU Settlement Scheme (EUSS) today. It states that as of 31 December 2019, over 2.7 million applications were received, of which over 2.4 million have been concluded. The Home Office processes about 20,000 applications per day. Of the concluded applications, 58% of applicants were granted settled status, 41% were granted pre-settled status and 1% had other outcomes, including withdrawn or void applications. To date, six applications have been refused on suitability grounds.
Whilst the statistics may seem favourable from the Home Office’s perspective, they are not as rosy as they seem. In our last post on EUSS statistics we highlighted some of the issues with the Scheme, including double applications, inaccurate estimates of the number of EU nationals living in the UK, and the Home Office’s ability to ensure vulnerable communities apply to the Scheme. In the latest set of statistics, published on 6 February 2020, these issues are mentioned, but not resolved.
The report explicitly recognises double applications as a concern. It states:
“The data in this report account for the number of applications to the system, including individuals making applications on more than one occasion. An individual who has been granted pre-settled status can make a new application at a later stage to apply for settled status. As these are separate applications with separate outcomes, they are counted separately in the statistics.”
In the upcoming months after Brexit, the number of applicants wanting to convert their pre-settled status to settled status, and thus applying to the EUSS for the second time, will keep rising. As such, the significance of the total number of applicants mentioned in the Home Office statistics will only lessen, until the numbers published mean nothing at all.
The report also reminds readers that the EUSS statistics refer specifically to applications made to the EU Settlement Scheme, and therefore cannot be compared with estimates of the resident population of EU/EEA nationals in the UK. This is because figures include non-EEA family members as well as eligible EEA citizens not currently resident in the UK.
Additionally, it states that support is available for those EU citizens in the UK who do not have the access, skills or confidence to apply independently. Clearly, that additional support is insufficient, since the number of applicants from the age group of 65 or older remains low, at 2% of the total number of applications.
No solution is offered to resolve these issues. On the contrary: after explicitly conceding all of the above, the Home Office boasted that the EU Settlement Scheme has reached “a new milestone.” Home Secretary Priti Patel said she is “delighted that there have already been more than 3 million applications to the hugely successful EU Settlement Scheme,” even though the statistical report shows that this number is misleading.
From a legal point of view, there is also a likely misrepresentation in the statistics regarding refused applications. Appendix EU to the Immigration Rules, which lays out the EUSS in law, states that applications are automatically refused when the individual who applies is subject to a deportation order due to their criminal record. Additionally, applications may be refused if the Secretary of state believes that the decision to refuse is conducive to the public good, even when there is no deportation order against the individual.
In light of this, six refused applications may not seem like a lot, but it is becoming apparent that this number might be manipulated, as the more difficult cases are left at the bottom of the pile. Additionally, we have seen proof that under certain circumstances, previously granted status may be revoked or invalidated. One EEA national, who was convicted to six months imprisonment for a battery offence, was detained upon completion of his custodial sentence irrespective of him having obtained settled status under the EUSS. His status is set to be revoked because of his failure to disclose previous offences which he committed in the Netherlands years before moving to the UK, even though they may not be serious enough offences to justify a refusal of status in the first place. We know for a fact that there is ministerial involvement in this case, following the Home Secretary’s decision to authorise the enforcement and removal action in this and five other test cases. This case has been ongoing for nearly five months, during which the individual remains held in detention. In the meantime, the Home Office try to justify his removal based on a failure to disclose, rather than based on his danger to the public – so much for hailing the simplicity, fairness and flexibility of the scheme.
Moreover, more refusals for non-EEA nationals with EEA national spouses/partners are expected. Non-EEA nationals can apply for a family permit under the EUSS based on a genuine and subsisting relationship with an EEA national who has status in the UK. Christopher Desira, Seraphus’ founding solicitor, confirms that decisions on such applications are currently abnormally delayed:
“I know of some EEA nationals with Non-EEA national spouses/partners who previously applied for residence cards but were refused based on the belief that the relationship is one of convenience. They since applied to the EUSS scheme. The Home Office know of the previous refusals so are likely to refuse again but they are currently not making any decisions for reasons I can only guess are political. Refusing EUSS status for serious offending is one thing, but refusing because they don’t trust a relationship is another.
Decisions should not be put on hold for long periods of time, whether they end up being refused or not; they should be issued so individuals know where they stand, challenge the decision where necessary, and move on with their lives.”
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.
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.