Home Secretary confirms that late applicants to the EU Settlement Scheme will be unlawful residents by Charlotte Rubin

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.





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