December 2020

Continuous Residence and COVID-19: Important update for EUSS applicants by Charlotte Rubin

The Home Office published guidance for EU Settlement Scheme (EUSS) applicants in or outside the UK who have been affected by restrictions associated with COVID-19 since the beginning of the pandemic.

The general rules of the Scheme are clear – for an applicant to be eligible for status, for them to be able to remain in the UK after the 31st of December 2020, they will need to confirm and prove a period of continuous residence in the UK. Depending on how long that period of residence is, the applicant will be granted either settled or pre-settled status.

To obtain settled status, or indefinite leave to remain, the applicant has to have been continuously residing in the UK for five years. The five years need not be ongoing; applicants who are not currently living in the UK may apply based on their historic residency, as long as they have not been outside the UK for a continuous five-year period immediately after the five-year qualifying period of residence on which their application is based.

If a person has been in the UK for less than five years, they will receive pre-settled status, which they will need to maintain until they reach the five-year continuous residence threshold to qualify for settled status. Continuous residency is calculated on a rolling basis, not based on calendar years, meaning that the applicant must be living in the UK for more than six months out of every twelve-month period.

The general rules state that applicants are permitted one period of absence of more than six months (but which does not exceed 12 months) for an important reason such as study or serious illness without losing their pre-settled status. This period of absence must be explained and proven when the applicant submits their settled status application. If an applicant is absent from the UK for longer than six months (but under 12 months), and it is not for an important reason, the absence will break their continuous residence, and they will not be able to apply for settled status.

Until today, it was unclear how the Home Office would deal with absences due to COVID-19 related reasons. The guidance published today confirms that they do not intend to be very flexible, but unfortunately does not clarify not much more than that, as it is not very detailed.

For applicants who were outside of the UK for a few months during the COVID-19 pandemic, the Home Office essentially applies the general exception rule. The guidance confirms that if an applicant was impacted by coronavirus public health restrictions and could not travel as a consequence, this will count as an exceptional circumstance which may justify absences from the UK of over six, but under 12, months. Examples given include if the applicant contracted coronavirus overseas and could not return to the UK because they were ill or in quarantine, or if imposed travel restrictions led to an increased absence from the UK for longer than planned.

In all cases where the applicant was prevented from travelling due to COVID-19 related reasons, they will have to provide a supporting letter explaining and outlining the various details of their time abroad – when they were ill or quarantining, when their flights were cancelled, and any other important dates. No additional detail is given about the standard or expectations of proof. In any case, an applicant is only allowed a single absence exceeding six months (but not exceeding 12 months) for an important reason in their five-year continuous qualifying period, meaning that if an applicant already had an important reason for which they had to leave the UK for more than six months before the pandemic hit, their counter for number of years with continuous residency will have to be reset to include only the latest period of absence.

An example could be a student who arrived in the UK in 2016, studied abroad from September 2017 until June 2018, for which they planned to use the “important reason” exception, and who in the past 12 moths has spent seven months abroad due to a combination of pre-covid trips, and a five-month lockdown which they spent in their home country. This applicant would not be able to claim an “important reason” both for their period abroad in 2018, and for their prolonged absence in 2020. As a consequence, they would have to “reset” their counter to when they returned to the UK after their year abroad, and will only be eligible to apply for settled status in 2023 instead of 2021, as they would have been under normal circumstances.

Another issue addressed in the guidance is that of people who need certain evidence of their identity and nationality to apply to the EUSS, but are unable to obtain it due to circumstances beyond their control specifically related to coronavirus public health restrictions. Examples given include the closure of embassies or consulates, or the inability to travel to the closest consular services which may mean that it is impossible to obtain the conventional identification documents. In these circumstances, the Home Office may accept alternative pieces of evidence of nationality such as expired passports or ID cards, another official document issued by the authorities of your country of origin or of the UK which confirms your identity and nationality or previous Home Office communication evidencing your nationality. People who apply to the EUSS with alternative means of identification documents must apply on a paper application form, applications which generally take longer to resolve than the electronic ones.

Both for applicants relying on alternative evidence of nationality and for those justifying a prolonged absence from the UK based on COVID-related public health restrictions, the Home Office evaluates claims on a case-by-case basis. There is no provision for leeway or discretion in any circumstance, for example if an applicant is only missing a few days to reach the official six-month threshold, nor is there any detail on how an applicant is meant to prove the reasons for their absence.

If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.

Criminalising Migration by Charlotte Rubin

In recent years, the criminalization of migration has become part and parcel of a policy of migration management, irreversibly altering the relationship between migration and crime, and ultimately leading to the (partial) merging of migration and criminal justice systems, with significant consequences for not only the migrants themselves, but also the wider public, and their opinion on migration.

Both the criminal law and immigration law are, at their core, systems of inclusion and exclusion. Both are centred around the idea of population control, and of distinguishing certain individuals from others based on specific criteria. The criminal justice system distinguishes between law-abiding and law-breaking citizens, whilst immigration regulation distinguishes between residents and non-residents of a specific territory. The criminal law is designed to punish individuals who harm other individuals or the society at large. Immigration law, on the other hand, does not have such a concrete goal. Rather, it is a form of administrative law and management, a part of bureaucratic process. Immigration and crime used to be two separate fields, which despite their similarities had distinct rules, targets, and institutions. These distinctions are no longer as obvious as they once were.

In the UK, the Home Office routinely blurs the lines between crime and migration by emphasising human trafficking and smuggling (crimes which can be prosecuted in court) instead of focusing on the migrants who are being trafficked. It is not a coincidence that although the migrants in question are not criminals, they are always mentioned in the same breath as the criminal traffickers. It is a conflation by choice, which happens on at least three different levels: enforcement, substance and procedure.

Firstly, immigration enforcement has come to resemble criminal law enforcement. One example where this is clearly visible is the transformation and increase of border patrols. In recent years, borders have become the subject of tight control and surveillance, with specialised teams and organisations trained for patrolling and deal with any issues that may arise in the process. Additionally, immigration checks are increasingly intrusive: they happen before, during, and after entry into the territory. Pre-entry, before crossing a border, border patrols might check the migrant’s documents or reasons for moving. Once the migrant enters the territory, they are controlled through detection of entry and data sharing. After entry to the territory, the migrant is monitored to ensure compliance with the relevant rules.

In the EU, organisations like Frontex have been created to deal with all these different checks, and more broadly to promote and co-ordinate the management of the EU’s external borders. Frontex is not a part of law enforcement, but rather a specialised group which co-operates with member countries and Europol to facilitate migration administration, including border control and returns of migrants to their home country. Frontex’ increased presence at the EU’s external borders and their police-like approach is not unique, but rather part of a broader trend to render administrative bodies more police-like, and giving them numerous executive and quasi-judicial responsibilities. Most recently in the UK, Home Secretary Priti Patel announced that extra patrols will be activated on French beaches to prevents migrants from crossing the Channel.

Secondly, the substance of immigration law and criminal law increasingly overlaps. On the one hand, immigration status has been playing a role in criminal law systems for a long time, and conversely, criminality may affect one’s migration possibilities. Immigration laws have long tended to place restrictions on immigration in a reflective manner, for example restricting the entry of people who had previously committed offences. More recent developments, however, shift attention from past crimes to present behaviour, with many immigration violations themselves being defined as criminal offences, and many crimes in turn resulting in liability for deportation. Simultaneously, organisations like Frontex which are supposed to be in charge of migration management for the EU have become important players in the prevention, detection and suppression of cross-border crime, specifically relating to the smuggling or trafficking of people. This double role for Frontex has significant consequences for migrants, as they are simultaneously treated as suspects and victims of migration-related criminal activities, merging both fields.

Lastly, procedural aspects of prosecuting immigration violations have taken on many of the trademarks of criminal procedure. The most obvious example here is immigration detention, where the host country can administratively detain people, depriving them of their liberty often with no judicial oversight, simply for being in breach of immigration rules. Effectively, being stuck in immigration detention is not dissimilar from a prison sentence. In fact, some of the UK’s immigration detention centres even used to be prisons, so that not only the process of detention resembles a custodial sentence, but the physical practice of immigration detention is also assimilated to the criminal justice system. A parallel move is the use of criminal law sanctions to punish businesses that engage with individuals whose immigration status is uncertain or unauthorised. Again, in the UK for example, the threat to employers or landlords, should they hire people without immigration status, is one of the pinnacles of the hostile environment.

Human rights such as access to healthcare, accommodation, work and safe living are all impacted as a consequence of the increased overlap between criminal and immigration systems. The Council of Europe Commissioner for Human Rights has previously expressed that such methods of controlling international movements erodes human rights and weakens established international law principles. Yet, there is a steady advance of the discourse of ‘illegality’ in migration law and policy, with few indicators of change in the future.

If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.


Home Office releases EU Settlement Scheme Policy Equality Statement, admitting discrimination by Charlotte Rubin

The Home Office released its Policy Equality Statement earlier this month in relation to the EU Settlement Scheme. Almost 4.3 million people have now applied under the Scheme to stay in the UK after Brexit, far exceeding the Home Office’s estimate of the eligible population. Despite this arguable success, significant concerns remain about vulnerable population groups being at risk of missing out on the application window and losing their rights of residence as a consequence.

The Policy Equality Statement is an important document, as it assesses whether the entirety of the EU Settlement Scheme is compliant with anti-discrimination laws such as the 2010 Equality Act. Essentially, it is the Home Office’s self-evaluation of whether the Scheme is proportionate and whether it risks discriminating against protected groups, such as EU citizens with disability, women, or other minorities.

The overall conclusion and general theme of the report is that whilst the Home Office acknowledges that there is at least some indirect discrimination built into the Scheme, it is not enough to be considered unlawful, and can be justified as a “proportionate means of achieving a legitimate aim”. For example, the Home Office findings confirm that disabled applicants will encounter difficulties navigating the online-only application system. However, the report explains this arguably discriminatory hurdle stating that the overall aim of the online system to render the application system simpler and more accessible justifies it. Additionally, the report states that the risk of discrimination has been mitigated by funding for charities and outreach to help vulnerable groups like disabled people through the application process.

Similarly, the EUSS application system is found to indirectly discriminate against women. The Statement notes that the automated checks for evidence of continuous residence fail to cover certain welfare payments which women are more likely to receive, such as Child Benefits, making the application process more complicated for women. While the Home Office acknowledges that “this could put women at a particular disadvantage”, the potential discrimination is justified because the system “reduces the overall administrative burden on applicants in general”, and therefore this is in compliance with the Equality Act. The Home Office also points to how it has tried to “mitigate any potential disadvantage”, in this example by accepting a wide range of other residence evidence where the automated checks do not suffice.

The worry from all this is that a lot of people who the Scheme is objectively discriminating against will not be able apply before the deadline of 30 June 2021, and become unlawful residents in the UK as a consequence, even though they qualify for residency. It is very hard to predict how many people will fall through the cracks like this. In fact, considering that Home Office data expected 3 million applications to the Scheme in total, yet they have already received 4.3 million of them with over seven months left to apply, the Home Office arguably has no idea how to estimate any of these numbers.

To sum up, the Home Office admits that there is indeed discrimination against various minority groups, but that the exceptional circumstances of Brexit, combined with efforts made to mitigate the discrimination in question, suffice to justify it, and it is therefore not a legal issue. It will be a waiting game to see whether claims will be brought against this conclusion, or any other claims made in the 105-page-long document, and if so, whether the courts will agree.

If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.

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