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.
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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.
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In order to stay in the UK lawfully after the end of the transition period, all EU citizens in the UK have to apply for status under the EU Settlement Scheme (EUSS). Under the Scheme, EU citizens will be given either pre-settled or settled status. For an applicant to the EU Settlement Scheme to receive either pre-settled or settled status, they will have to prove three key things: their identity, their suitability, and a period of continuous residence in the UK.
For most applicants, this will be relatively straightforward. This briefing focuses on three groups of applicants for whom proving these things will be slightly more complicated: frontier workers, people with a criminal sentence, and extended family members. Of course, many other applicants will find the EUSS confusing or hard to navigate, and numerous other vulnerable groups in society have been identified as at risk of failing to secure their rights. This briefing focuses on specific issues with these three groups to break things up a little.
The Withdrawal Agreement between the EU and the UK provides that frontier workers must receive documents certifying their status as soon as possible, so that they are not prevented from exercising their rights after the end of the transition period, and can easily demonstrate proof of those rights at the border. That is why the government is launching a frontier worker permit scheme on 10 December, so that frontier workers can make free applications to receive such a document. Although this is a welcome development, the scheme seems to be cutting it quite short as it opens a mere three weeks before the end of the transition period, with very little information available as to the qualifying criteria and precise application process. Surprisingly, there seems to be more information available for family members of frontier workers than for frontier workers themselves, as there seems to be little certainty about what exactly is required of them
As for EU citizens without a right of permanent residence whose residence is interrupted by a period of imprisonment, the Withdrawal Agreement states that the “conduct” of these citizens may have an effect on their application under the Scheme. “Conduct” here relates to actions taken by the affected citizen, rather than the outcome of the action such as a sentence of imprisonment, meaning it is not the time or severity of the prison sentence but of the conduct which is important in assessing the relevant citizen’s eligibility.
Appendix EU clearly states that continuous qualifying period cannot include a period of imprisonment. In fact, EU law stipulates that periods of imprisonment in the host Member State interrupt the continuity of residence required by Article 16(2) of the Free Movement Directive for the purpose of acquiring a right of permanent residence.
There will be situations where the conduct of the citizen is committed before the end of the transition period, and the conduct is not be serious enough to result in their removal from the UK, but their prison sentence will conclude after the end of the transition period. If this is the case, the only route to status under the EU Settlement Scheme would be if the applicant already had settled status before he committed the offence. If he had been in the UK for less than five years when the offence was committed, and does not have settled status, he will not be able to acquire it. A citizen cannot link periods residence in the member state that are dissected by a term of imprisonment which in this example, began before the end of the transition period.
The result is that a citizen who was in prison during the transition period, but does not meet the threshold for removal from the UK, cannot begin a continuous qualifying period to obtain EUSS status. They are highly unlikely to be able to obtain any other immigration status due to the restrictive nature of UK immigration law and would consequently face removal on the basis that they do not have any lawful residence after 30 June 2020.
Lastly, concerning extended family members, Appendix EU requires that durable partners and dependent relatives apply to the EUSS with a valid “relevant document". The definition of a relevant document is a document issued for under the EEA Regulations. It can be a family permit, a residence card or a permanent residence card. Important to note is that the relevant document must be valid (i.e. not expired or revoked), meaning that an extended family member who has been issued a document which has now expired is unable to apply to the EUSS and will receive an automatic refusal of status should they submit an application. In effect, this raises the financial bar for durable partners of EU citizens, as they are required to make a second application under the EEA Regulations to receive a valid relevant document and then make a third application for EUSS status. The application fee here is 65 pounds.
This fee is entirely avoidable. In fact, when an extended family member applies to the EUSS, the process assesses whether the family relationship continues to exist (or did for a 5 year period in the past). Therefore, it is available to the Home Office to assess the continuing family relationship of an extended family member applicant through the EUSS process, even where their relevant document has expired. The Home Office approach puts a disproportionate burden on these applicants not only financially, but also practically, as they have to evidence and re-evidence their family relationships which could be considered detrimental to the rights of their sponsoring EU citizens.
Once family members of EU nationals succeed in their application and get status under the Settlement Scheme, they are issued a physical document to prove their right to residency in the UK. This physical document is a privilege not granted to EU citizens, meaning that in practice, durable partners receive physical proof of their status when the EU citizens on whose application they depend do not.
If you require any advice on the EUSS as a member of one of these three vulnerable groups of EU citizens or otherwise, do not hesitate to contact us for advice.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
In order to stay in the UK lawfully after the end of the transition period, all EU citizens in the UK have to apply for status under the EU Settlement Scheme. Under the Scheme, EU citizens will be given either pre-settled or settled status. To obtain pre-settled status (which gives EU citizens temporary residence in the UK for a limited period of five years), an applicant does not have to prove much: they must simply show that they have arrived in the UK before 31 December 2020. For settled status (which gives EU citizens permanent residence rights in the UK), it is a different story.
An applicant wanting to obtain settled status will have to demonstrate that they have been continuously resident in the UK for five years. What does that mean exactly? In this post, we have a look at the law which applies in this scenario to try and get a better idea.
The way Appendix EU to the immigration rules, which sets out the legal framework for the EU Settlement Scheme, defines continuous qualifying residence for the acquisition of permanent residence is based on the idea of a 6 month out of 12 months “rolling” residency. The definition of “continuous qualifying period” in Appendix EU states:
a period of residence in the UK and Islands…
(b) during which none of the following occurred:
(i) absence(s) from the UK and Islands which exceeded a total of six months in any 12-month period [emphasis added]
Imagine a scenario where an applicant, Serge, moved to the UK from France in April 2016. Until June 2019 he only went home for a few weekends and holidays, so he does not have to worry about his absences for his first three years of residence. In July 2019, his fourth year of residence, however, Serge went back to France for the summer and was absent from the UK until the end of September (three full months). He then came back to London, until January 2020, when he went back to France. He was supposed to return to London in February, but ended up staying abroad until May 2020, facilitated by him working from home during the COVID-19 pandemic. This is an absence of four full months in the calendar year of 2020.
But Appendix EU does not work in calendar years. Rather, it analyses periods of residence on a 12-month rolling basis. As a consequence, Appendix EU would interpret the above-mentioned scenario to mean that Serge has broken his continuous qualifying period on account of combining the three months absence in year 4 with the four-month absence in year 5 resulting in a combined absence of seven months in a 12-month period. The drafting of the criteria does not allow the citizen to demarcate the absences into separate 12-month periods.
When it comes to COVID-19 related absences, the Home Office have said that they will be flexible, and consider it as an exception to the 6-month rule if need be. Serge might then be able to rely on this exception when he applies for settled status in April 2021. However, the validity of this exception is not guaranteed, but rather subject to Home Office discretion. In addition, not all applicants will be able to do the same
The Court of Justice of the EU has held that periods of continuous legal residence confer on EU citizens the right of permanent residence with effect from the actual moment at which they are completed. This means that the continuous period of five years legal residence that leads to the acquisition of the right of permanent residence is to be counted from the moment the EU citizen takes up residence in the host Member State in compliance with the residence conditions of the Free Movement Directive.
In fact, the definition of “continuous qualifying period” in Appendix EU does not comply with provisions regarding continuous residence in the EU Free Movement Directive and the EU-UK Withdrawal Agreement. The rule from those legal instruments is that an EU citizen may have temporary absences not exceeding a total of six months within each year leading up to the acquisition of the right of permanent residence, and that each year starts on the anniversary of the date when the EU citizen took up residence in the host Member State in compliance with the residence conditions of the Free Movement Directive, meaning that absences in different years must not be added up.
It should be noted that the way the Home Office calculate qualifying residence for permanent residence under the EEA Regulations (implementing the Citizens’ Directive in domestic legislation), is not clear on this matter as there has been a change in Home Office guidance instructing case workers how to assess the continuous residence requirement. Former guidance stated that the Home Office would consider absence is based on a year 1 to 5 from when the EU citizen began their UK residence. Current guidance states that a six months absence in any 12-month period would break continuous residence without reference to calculating this on a year by year basis. Therefore, the current interpretation of continuous residence under the EEA Regulations is in conflict with Appendix EU. This could easily be remedied by changing the guidance back, and ensuring that EU citizens get the status they are entitled to.
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A cross-party report published last week urges the UK and EU to ensure that the citizens' rights protections in the Withdrawal Agreement are fully implemented for UK nationals living across the EU and EU citizens in the UK. All recommendations were agreed upon by the Committee on the Future Relationship with the European Union. Broadly, the Report, to which Seraphus submitted written and oral evidence, underlines the necessity of many long-standing demands of professionals and third-party actors in the field of immigration and EU law.
For UK nationals in the EU, the Report makes three key recommendations. Firstly, it states that UK nationals living abroad need to be made aware of what they need to do to secure their rights. The Report calls on the Government, together with the European Commission and each Member State, to increase monitoring of the processes in each state. It also reiterates that the registration/application processes should be simple and avoid any unnecessary administrative burdens.
Secondly, the report states that deadlines for UK citizens to apply should be extended where necessary. In fact, of the thirteen Member States that have decided to require a new application for UK citizens to remain there legally, seven have already extended the deadline beyond 30 June 2021, which is the standard date for the end of such application schemes. The Committee urges other Member States to consider similarly extending the deadline if it becomes apparent that large numbers of UK nationals have not applied. In general, the Committee recommends countries take a pragmatic approach to delays, such as where Covid-19 causes a reduction in their capacity to manage applications.
Thirdly, the Report reiterates that UK nationals should be actively encouraged to register under the system of their host country. Due to free movement laws in operation over the past decades, many Brits living in countries such as Spain, Greece, France or Portugal are not necessarily registered with the local authority. It is almost impossible to estimate how many UK nationals are unregistered. Encouraging registration now, with the end of the transition period approaching, is vital, as it is often the first step in securing rights protected by the Withdrawal Agreement.
EU nationals in the UK face similar challenges if they want to stay in the UK lawfully. Unsurprisingly, then, the Report mirrors these requests to protect EU nationals in the UK in the same way as UK nationals abroad should be protected. In sheer numbers, the figures of EU citizens needing to apply to the EU Settlement Scheme to remain in Britain is far greater than the number of Brits needing to apply to similar schemes abroad. The concerns for EU citizens’ rights are therefore urgent.
The main issue identified is that although the EU Settlement Scheme has been a significant achievement (with over 4 million applications), it is still unknown how many EU citizens have yet to apply, as there is no clear data on the matter. Following from that, the report expresses concern over the application deadline of 30 June 2021, and what will happen to people who fail to apply before that. The committee urges ministers not to apply an unduly restrictive approach to late applications and to look for reasons to grant status rather than to refuse it.
The report also emphasises the danger for people with pre-settled status not knowing or understanding that they will need to upgrade their status before their pre-settled status expires. It urges the Government to publish guidance for caseworkers on how it will inform citizens with Pre-Settled Status that they are able and required to apply for an upgrade to Settled Status when the time comes.
Another concern highlighted is the danger for vulnerable individuals and groups in the UK. The report is unequivocal in stating that these individuals need more tailored support. Difficulties faced by some EU citizens, for example language or technology barriers, or problems with producing documentary evidence of their residence, are not uncommon. Communication with, and support for, these citizens, either directly from Government or through existing community organisations, must be prioritised as the 30 June 2021 deadline approaches.
There remains a lot of work to be done concerning communication and outreach, and that is why the report also recommends for funding to organisations providing support and advice to EU citizens to be extended beyond the end of this financial year (March 2021) as the government previously promised.
Finally, the Report argues that EU citizens in the UK should be able to apply for a physical document proving their legal residence in the UK. At the moment, EU citizens who successfully apply to the EU Settlement Scheme merely receive a digital confirmation. They have to log in and access their status online every time proof of legal residence is required, for example when opening a bank account, accessing benefits, renting a flat or changing jobs. The report urges the government to reconsider this, as it risks discriminating against EU citizens. This is because from 1 January 2021, identity checks will be performed online instead of through the familiar ID or passport check, only for EU citizens. For non-EU citizens, the same checks will be carried out in a way that is already known and familiar. The Government is urged to set out how it will monitor and review the rollout of these digital checks, parallel to the physical checks for third-party nationals. It also asks the Government for an update on progress establishing the planned Independent Monitoring Authority. This recommendation is especially relevant after last week’s debate in the House of Commons, where the government voted against a proposal to give EU citizens physical proof of status.
The key theme running through the entire report is the need for transparency and clarity. A lot of the recommendations are about outreach, awareness and simplicity of proving status. These are all things the government have been doing, but not enough. EU citizens in the UK as well as UK citizens abroad need to be made aware of what is expected from them, so that the end of the transition period can happen as smoothly as possible.
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The EU Settlement Scheme (EUSS), to which all EU/EEA/Swiss citizens living in the UK should apply should they wish to remain in the UK after the end of the transition period on 31 December 2021, confirms the applicant’s right of residence in the UK after Brexit. This aim – to provide EU citizens who live in the UK with status to remain after free movement ceases to apply in the UK – seems simple enough. However, as we have written many times before, the Scheme is not perfect, and has many gaps. Here, we focus on one of those gaps: social security for EEA citizens, an issue which the EUSS does not address, as it fails to confirm explicitly that people who obtain status under the Scheme are protected by the Withdrawal Agreement. Whether someone is protected under the EU Withdrawal Agreement is important, as it determines whether the applicant in question is entitled to social security benefits in the UK.
The relevant framework to understand whether a person is entitled to social security in the UK after Brexit is quite complicated. It requires an understanding not only of UK and the member state’s immigration rules, but also its social security rules, the EU-UK Withdrawal Agreement, the Free Movement Directive and the European Union Social Security Co-ordination Regulations (883/2004).
The 883/2004 coordination Regulations do not establish a single, unified social security system across the EU, but instead provide a reciprocal framework to protect the social security rights of people moving within the European Economic Area (EEA) states (and Switzerland). As such, each member state can choose what sort of benefits-in-kind and cash benefits it funds for nationals from another member state.
The coordination Regulation tells us which country is responsible for paying a person’s benefits, where those benefits can be received and what benefits may be redirected. In short, it simplifies the process of claiming and making benefits, allowing all benefits to be made in one single payment across borders. It provides a mechanism for countries to speak to each other, to resolve who meets the costs and where they will be paid, with an ability to challenge those decisions.
Member States however remain responsible for their own social security systems: it is up to them to decide which benefits are granted, at what rate, as well as define conditions for entitlement. So, a person’s entitlements is dependent on the domestic rules that are in place during their periods of residence in the respective EEA country and the UK.
All benefits referred to in the coordination Regulations are included in the Withdrawal Agreement at Part Two, Title III. This section ensures that if a person is entitled to benefits now, before the end of the transition period, they will maintain the right to those benefits and, if they are entitled to a cash benefit from one country, they will in principle be entitled to receive it even if they decide to live in another country. Title III also covers groups of people, other than those persons meeting the Free Movement Directive, who might also benefit from coordination.
There are four main principles for coordination. The first is the ‘single state principle,’ which sets out that at any one time, a person is covered by the social security system of one single country and is only liable to make contributions in one country – this is what we call the ‘competent state.’ The second is the prohibition of discrimination and guarantee of equal treatment, which sets out that a person has the same rights and obligations as a national of the Member State where they are covered. The third is the idea of ‘aggregation’ which establishes that periods of insurance, employment or residence in other Member States can be taken into account when determining a person’s eligibility for benefits. Finally, the last principle concerns exportability, and explains that a person can receive benefits from one Member State even if they are resident in another Member State.
All the persons who fall within the scope of the provisions set out above get the benefit of the rules and objectives set out in the coordination Regulations, its implementing Regulations and its governing EU treaty provision (Article 48 of the Treaty on the Functioning of the European Union). In other words, the full coordination rules apply and so there is protection for social security, healthcare, and pensions.
There is a saving provision: anyone who does fall within the four categories set out above, but who falls within Article 10 of the Withdrawal Agreement is also covered (as are their family members and survivors) and will remain entitled to social security benefits. Article 10 refers to the categories of persons who continue to have rights of residence under the Withdrawal Agreement. So, if it’s too complex to determine eligibility in one of the categories above, then a person can still remain protected by the coordination rules in the future if they have attained the right of permanent residence in the UK, as long as they retain that right of residence.
Now we come to the EU Settlement Scheme. As we have explained before (for example when assessing EEA applications for naturalisation), settled status does not confirm whether a person falls under these provisions. This can lead to complex coordination in the future. The UK may not be able to determine that a person falls within one of the four categories, and this may lead to disputes with other states also involved in the coordination of rights. So, without a document confirming that they fall within the Withdrawal Agreement, a person with settled status may be excluded from social security coordination provisions under the Withdrawal Agreement, unless they have enough evidence to show prior exercise of EU rights. This is obviously problematic.
Another point to note is that the persons who fall within Article 10 of the Withdrawal Agreement are only covered for so long as they have a right to reside under Article 13 (residence rights) of the Withdrawal Agreement or a right to work in their state of work under Article 24 (rights of workers) or Article 25 (right of self-employed persons) of the Withdrawal Agreement. Again, this risks excluding settled status holders based merely on five years’ presence from social security co-ordination provisions under the Withdrawal Agreement unless they can show the prior exercise of EU rights.
This issue is easy to resolve: applicants who receive settled status and have been beneficiaries of the Withdrawal agreement should simply receive a document to confirm that, which would enable them to claim the benefits they are entitled to without any complications. Unfortunately, the government has previously shown that it is not keen on providing physical status at all – let alone physical proof of entitlement to benefits.
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In their most recent report, the Migration Observatory confirms what many lawyers and people working in the immigration field feared: no matter how much outreach and campaigning the Home Office plans to do, thousands of EU citizens in the UK are still likely to miss the EU Settlement Scheme deadline, which is set on 30 June 2021, and lose their lawful residence. These are not necessarily vulnerable individuals, but often simply people who do not realise that they need to apply to the Scheme. Broadly, the people most at risk of missing the deadline fall into five categories.
Firstly, those who are simply not aware that they need to apply. A perfect example of this are very long-term residents, who might think that they do not need to apply because they have lived here for so long, or EU citizens with permanent residence. In absolute numbers, tens of thousands of EU citizens fall under those categories. We know that at least 145,000 non-Irish EU citizens have been granted permanent residence from 2004 to 2019, who are not (yet) UK citizens. Many of these do now know that their permanent residence is not enough to warrant their continued lawful residence after Brexit.
Similarly, children of EU citizens whose parents do not themselves apply might not realise that their children need to do so, or mistakenly believe that their UK-born children are automatically UK citizens. In absolute numbers, this means a big group of children are at risk, as there are an estimated 689,000 children living in the UK with non-Irish EU citizenship. Other people who may not be aware that they need to apply to the Scheme are people who have been rejected for permanent residency or who were previously ineligible, and who do not realise that the criteria to obtain status under the EUSS have been made less restrictive. Additionally, people with criminal records and people who have been removed in the past might be reluctant to apply due to fear of being refused status or not meeting the suitability requirement), even if they are in fact eligible. In prison specifically, EEA citizens are in theory entitled to apply, but in practice unaware of the scheme or unable to submit their application due to practical difficulties.
The second category comprises of people who already face some kind of social exclusion, or who enjoy reduced independence or autonomy. Again, children are part of this group, specifically children in care and care leavers eligible to apply. According to Home Office estimates, there are around 5,000 children in care and 4,000 care leavers who would be eligible to apply to the EUSS, but some local authorities might not have information about their citizenship and hence do not apply on their behalf. In addition, some children might lack a valid ID and/or might not be able to provide evidence of their residence in the UK before coming into care. Other vulnerable groups include rough sleepers, victims of domestic abuse, victims of modern slavery and migrant Roma communities. According to government statistics, which tend to underestimate population numbers, there are currently at least 4,250 EEA nationals who qualify for homelessness assistance, 101 000 victims of domestic abuse, 1,400 victims of modern slavery and 200,000 Roma people, respectively. The numbers add up quickly.
Thirdly, some people might know about the EU Settlement Scheme, but struggle to navigate the application process. This could be due to practical difficulties such as language barriers, mental health problem or people with cognitive disabilities. It could also be due to technical difficulties, for example low digital literacy, low general literacy, or age. If we do the math again, these categories account for at least 600,000 vulnerable individuals: 244,000 people with language difficulties, 15,000 individuals who say their mental health impacts their daily activities, 42,000 people who have never used the internet before, 300,000 EEA citizens who have no formal qualifications, and 58,000 people aged over 75.
Lastly, people who lack evidence to prove their eligibility will also fail to acquire status, even though they might qualify for it. The biggest groups here are people who lack identity evidence to demonstrate their EEA nationality, of which there are at least 100,000 in England & Wales, and people who lack evidence of their relationship to a qualifying EU citizen. These people cannot simply rely on their residency in the UK to acquire status under the settlement scheme, but also need to prove that their relationship with a qualifying citizen is genuine. The number of people qualifying for status based on their family members is unknown.
Finally, an important group to mention are the people who may have acquired pre-settled status now, but who might now know or forget to upgrade that status to settled status once they have reached the five-year continuous residence requirement.
Need I go on? The report shows that traditionally vulnerable groups, be it people in poverty, social isolation, or living in precarious conditions, are more likely to miss the Scheme deadline than other EEA nationals. People without bank accounts, or leases, or bills in their name. It also shows how enormous that group of people is, and how many people may therefore end up without a status. This is why immigration practitioners call the EU Settlement Scheme a “Windrush Scheme on steroids” in the making. The Scheme is set up to reinforce existing inequalities, and filter out applicants who are perceived as less useful or desirable in British society, as people from challenging backgrounds are most likely to slip through the cracks and end up being in the UK unlawfully through no fault of their own. no matter how much money the government throws at their EU Settlement Scheme outreach campaign, not everyone that needs to know about the Scheme will be made aware of it.
Immigration practitioners have cautioned about this since the Brexit vote; the Migration Observatory report confirms it yet again. Meanwhile, the government knows about it, yet does nothing to ensure change. That should tell any layman enough about the intentions and goals behind the Scheme.
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The Brexit transition period is set to end at 11PM on 31 December 2020, after which the UK will officially break with the EU and EU law will no longer apply to UK territories. For the purposes of the EU Settlement Scheme, the government has provided for a “grace period” of six months in which EEA nationals can still apply for status under the EU Settlement Scheme without losing their rights. That grace period will end on 30 June 2021, after which EU citizens in the UK who have not acquired status under the Scheme will become unlawful residents and will be considered “late” applicants.
Draft legislation proposals reveal how the government intends to protect (most) of the people eligible to apply to the EU Settlement Scheme, but who have failed to do so before the end of the transition period. It sets out that during the grace period, economically active EEA nationals and Swiss nationals will automatically remain lawfully in the UK. They will also be protected if they do apply before 30 June 2021, but their application is unresolved when that deadline passes.
For economically inactive individuals such as students and self-sufficient EEA nationals, remaining legally resident will be more complicated. The deadline for application is still 30 June 2021, and until that day, economically self-sufficient people can stay in the UK. However, according to the draft legislation, if economically self-sufficient people have applied by the deadline but are still waiting for their application outcome on 30 June 2021, they risk losing their status and be found illegal residents in the UK for the period between 30 June 2021 and the conclusion of their application. It is also unclear whether during the grace period itself, they are considered lawful residents or merely granted relief from hostile environment policies, but still considered unlawful residents. Having such a period of unlawful stay on your resume can have far-reaching consequences when trying to apply for visas or re-enter the UK from abroad.
In order to avoid this period of unlawful residence, economically inactive applicants are encouraged to apply to the EU Settlement Scheme early. If they cannot do so, for whatever reason, they are advised to take up comprehensive sickness insurance (CSI) before the transition period ends (meaning before 31 December 2020), as holding CSI will protect them from losing their right to reside and become unlawful residents.
However, the cost of CSI is high and often out of reach for students and pensioners, who form a large part of the economically self-sufficient population affected by the proposed legislation. That is why practitioners and third-party actors in the field advocate for the government to drop the CSI requirement, rather than force a group of people to purchase insurance at a time when financial stability is increasingly challenged due to COVID-19.
Christopher Desira, founding solicitor at Seraphus, confirms this. “I just can’t see any reason why those citizens who do not currently reside in accordance with the EEA Regulations could not have been included as covered by the Statutory Instrument [the proposed legislation], for example, by disapplying the CSI requirement. The main purpose of the Statutory Instrument is to provide for a grace period rather than any additional rights relating to free movement and so I cannot understand why the government would exclude a potentially significant number of citizens.”
The number of people affected by this system is, like many other EU Settlement Scheme statistics, unpredictable, and will depend on various factors including the Home Office backlog of pending applications by the deadline of 30 June 2021, the number of outstanding appeals on that same date, the EUSS outreach, and the number of people who are aware of the CSI requirement.
There are other unanswered questions. For example, the issue of travelling. If an EU citizen who has not applied to the Scheme leaves the UK temporarily after the end of the transition period, but before the EUSS deadline, how will they be allowed re-entry to the UK? Presumably, the Home Office will allow EU citizens to be visa free nationals through mutual agreements, like US nationals are now for example, so that these individuals can return to the UK as temporary visitors, and then apply to the EUSS whilst here on their visitor visa. However, these are presumptions – there is no guarantee, or legislative proposal to warrant them. It is impossible to predict how flexible or welcoming the post-transition period rules at the border will be, especially in light of the state of the Brexit negotiations at the moment.
Additionally, for non-EEA family members who rely on derivative rights to apply to the EUSS, all of these issues will be even more complicated. Not only are non-EEA nationals applying based on derivative rights not covered by the proposed legislation, their immigration status is also unclear during the grace period between 1 January 2021 and 30 June 2021.
Although the proposed legislation does not break the law or contradict EU citizen rights guaranteed under the Withdrawal Agreement, immigration professionals and third-party actors have said that it is flawed, as the CSI requirement is largely unknown to the wider population and only complicates EEA nationals’ plight to stay in the country legally.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
Since July 2020, the Home Office EU Settlement Scheme monthly statistics no longer include breakdowns by nationality, age group, or local authority details. The new reporting style lacks detailed information about EUSS applications overall. This information is now only released with more in-depth analysis as part of the quarterly statistics. At the end of August, the first set of quarterly statistics since this change in reporting style were published, with all the detail analysts had been missing. Here, we break the numbers down for you.
In total, the number of applications received by the end of July surpassed 3.8 million, of which over 3.4 million have been concluded. In July alone, 92,000 applications were received, just below the June figure of 100,800. Of concluded applications, 57% were granted settled status and 41% pre-settled. 76,000 or 2.1% had other outcomes. For July alone these figures were 62,600 (47%) settled status, 52,000 (39%) pre-settled stats and 18,500 (14%) other outcomes.
The trend of rising other outcomes (including refused, invalid, withdrawn and void applications) continued over the last quarter. Notably, the combined amount of refusals in June and July (3,700) account for over 80% of the total amount of refusals since the Scheme’s launch in 2018. Concerning invalid applications, 11,800 applications were found invalid in July and 9,000 in June, thus accounting for 60% of invalid applications so far. Additionally, 4,400 applications were withdrawn in July, the second highest monthly total ever recorded.
This is the first release of statistics that includes reporting on paper applications, of which there have been about 10,000 so far. Paper applications are often some of the most complex applications under the scheme, as they are for example what people without valid ID or relying on derivative instead of direct rights of residence rely on to obtain their status. This could partly explain the steady uptick in refusals and other outcomes; the less straightforward the applications, the more reasons to refuse the Home Office can find.
Paper applications concluded under the Chen, Ibrahim & Teixeira and Zambrano routes and as a family member of a British Citizen totalled 2,870, so over a quarter of all paper applications up to June 2020. These were mostly Family member applications (1,530), and Zambrano applications (1,260). Whilst all Family members applications concluded had a settled or pre-settled outcome, 61% of Zambrano applications concluded so far have been refused. More specifically, applications under derivative rights account for only 1.6% (830) of all other outcomes, yet 92% of these (770) were refusals under the Zambrano route.
Zambrano carers are non-EU citizens who are primary carers of a British citizen, and have a right to reside in the UK under EU law, relying on the judgment an EU law case Zambrano. As Luke Piper of campaign group the3million puts it, Zambrano carers are “usually single mothers with small British children fleeing domestic violence”, in other words some of the poorest and most vulnerable applicants under the Scheme. Before the EU Settlement Scheme, Zambrano carers used to qualify for a right to reside under certain circumstances, but had no path to settlement. In theory, under the Scheme, they can now rely on residual rights to apply for pre-settled or settled status. However, the statistics show that in practice, it is much harder for Zambrano carers to obtain status under the EUSS than for other eligible applicants. In fact, crunching the number shows that Zambrano refusals account for 25% of all refusals made to the scheme so far.
Breaking other outcomes down by nationality, three nationalities and non-EEA nationals account for over half of “other outcomes” in the UK: Romanian applicants represent 20% of other outcomes, Polish nationals 17% (8,710), Portuguese nationals 9% (4,820) and non-EEA nationals relying on derivative rights 8% (4,370). Comparing these numbers to the number of applicants from each of these nationalities, puts things into perspective, as it becomes apparent that although Romania account for only 16% of the total number of applicants, Portugal for 9% and Non- EEA nationals only 4%, their percentages of other outcomes are much higher, meaning they are disproportionately represented in other outcomes. Especially non-EEA nationals, who constitute only a fraction of all applicants (4%), but get twice as much refusals (8%), are much less likely to succeed in their application. Polish nationals are the only ones in the top three EEA nationalities that are not disproportionately represented in their share of other outcomes, as they account for 20% of all concluded applications.
Finally, if we zoom in on London, where majority of EUSS applications are made, we can see that the total number of applications up to June were 1,323,200. The applications concluded were 1,236,000, of which 109,200 were concluded since the last quarterly statistics in March. The proportion of other outcomes in London is roughly comparative with the total percentage of concluded applications in the area.
The Home Office has these figures all along, but only showing it publicly now. This leaves certain groups of people with higher refusal percentages with a short period to re-apply or appeal their outcome before the deadline of 30 June 2021 passes.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
When the government first outlined its vision for a new, post-Brexit immigration system in December 2018, they clarified that they wanted the system to be modern, efficient and in keeping with the “shift towards digital status in all areas of life”.
The first large-scale project where this “shift” became prominent is the EU Settlement Scheme, the framework under which EU citizens need to apply for status if they want to remain lawfully in the UK after the end of the transition period on 31 December 2020. Under the Scheme, EU citizens do not receive physical proof of their status, having to rely instead on a digital-only status, which they can access via the government website.
Under the hostile environment, introduced by Theresa May in 2012, the government forces service providers like landlords, employers, banks and universities to ask everyone they provide services to prove their status, effectively delegating its border control responsibilities to non-governmental entities. As a consequence, non-British nationals in the UK have to prove that they are legal at every turn. In order to live and survive in the UK as a non-British national, easy access to proof of one’s immigration status is therefore essential.
The Home Office argues that the digital-only status reflects that, as it allows EU citizens to “check their status from anywhere, at any time” from their phone. The government stated that “the EU Settlement Scheme protects the rights of EU citizens in UK law and gives them a secure digital status, which unlike a physical document, cannot be lost, stolen, damaged or tampered with”, selling the digital-only access as advantageous and useful for all parties involved. This reasoning fails to consider many factors which can prevent EU citizens from accessing their status, and therefore, accessing their rights.
Firstly, sharing and evidencing a digital status is hindered by numerous practical obstacles such as lack of IT knowledge, literacy, language barriers, or age differences. At Seraphus, we have encountered many EU citizens, especially elderly or isolated communities, who for example do not have email addresses or phone numbers. Both are necessary not just to apply for (pre)settled status, but also to access and share their status with service providers further down the line. For now, free advice and support is available to help EU citizens who for whatever reason are not secure in their application, apply under the EUSS, but there is no indication that this support will carry through once the deadline for application has passed, and citizens will need assistance to change, update or share their status instead of simply to obtain it.
This will harm many EU citizens once the points-based system come into force in January 2021. Most importantly, EU citizens are highly likely to be discriminated against similarly to how it occurs against third-party nationals today under the “right to rent” rules. In fact, only 3 in 150 landlords said they would be prepared to do these digital checks when renting out a flat, meaning that candidates with physical proof of their status will be prioritised over EU citizens who have go through the hassle of accessing their status online. The risk of being discriminated against increases, as it always does, for more vulnerable segments of the population, including those from isolated, older or BAME communities, women, children, and those with disabilities.
As Christopher Desira wrote, barriers also exist for the third-party requesting access to the status, multiplying the likelihood of discrimination. For example, a private landlord with a basic understanding of English and IT will find challenging to access and understand an EU citizen’s digital status, and therefore prefer to rent their property to someone where that hurdle need not be overcome, i.e. a British national who simply has to show their passport to prove that they have the right to rent in the UK.
Thirdly, the risk of any type of digital-only access scheme is that there can be a system outage at critical times, leaving EU citizens out in the cold when needing to show their status. In addition, digital security is a hot topic. Digital records can be breached, hacked or made unavailable, with not only consequences for the EU citizen who at that moment is unable to prove their status, but also for their privacy in the longer term. How securely is all this digital data stored, what are the contingency measures in case of a breach, and who is the data shared with? The government have answered none of these arguably critically important questions.
Non-EU family members who are eligible under the EUSS do receive a physical, credit-card sized document evidencing their settled or pre-settled status, so it is clear that if the Home Office wanted to, they could give EU citizens the option to request a hard copy document as well. The question remains why they then decided against it after a petition calling for physical documents as proof of (pre)settled status was brought to them in August 2019. Physical proof of immigration status, even on an optional basis, is not only easy implemented, but also an important basic right, especially since the government’s own assessment concluded that digital-only access to status would cause serious issues, and that a physical backup should be retained until the online system is streamlined and perfected to a standard which actually benefits EU citizens instead of hurting them.
If you have any questions regarding absences or the EU settlement scheme, please do not hesitate to contact us here or send us a question on WhatsApp.
For an applicant to the EU Settlement Scheme to receive either pre-settled or settled status, they will have to fulfil three key criteria. Firstly, they will have to prove that they are eligible to apply by evidencing their identity and nationality, and if necessary, their family relationship. Secondly, they will have to answer a few questions about criminality to see whether they are suitable for (pre)settled status. Finally, they will have to confirm and prove a period of continuous residence in the UK. This is the requirement that defines whether the applicant will be granted pre-settled or settled status, the latter obviously being a stronger and more permanent status for the applicant.
To obtain settled status, an applicant has to have been continuously residing in the UK for a five-year period. Applicants who are not currently living in the UK, but are applying based on their historic residency, will have to maintain their eligibility by proving that they have not been outside the UK for a continuous 5 year period immediately after the 5 year qualifying period of residence on which their application is based.
If a person has continuously resided for less than 5 years, they will be on course for pre-settled status. Once they obtain pre-settled status, they will need to continuously reside in the UK to maintain their status and further down the line, to reach the five-year requirement to qualify for settled status.
They can maintain their continuous residence by living in the UK for more than six months out of every twelve-month period. Applicants are permitted one period of absence of more than 6 months (but which does not exceed 12 months) for an important reason such as childbirth, serious illness, study, vocational training, overseas posting, or compulsory military service, without losing their pre-settled status. If the absence is longer, and it is not for an important reason, it will break continuous residence, and they will not be able to apply for settled status.
This might be the way the Home Office decides to deal with COVID-19 related absences – either it’s an important reason and the applicant “uses” their exception for it, or they return to the UK before 11pm on 31 December 2020 so they can re-start a new period of residence in the UK.
But this pre-existing rule is not enough, and does not cover every scenario where absences will affect those under the EUSS.
There are two key dates in relation to the EU Settlement application process: the eligibility deadline and the application deadline. The application deadline is 30 June 2021, but a person has until 31 December 2020 to become a person eligible to apply. This means that for EU citizens, residence in the UK must commence before 11pm on 31 December 2020 in order for them to qualify for status. Similarly, for most family members, the relationship must exist before 11pm on 31 December 2020 for the relationship to be considered under the EUSS.
As a consequence, absences can affect both EU citizens and family members in different ways. For example, imagine a Bulgarian national intends to come to live in the UK and would like to do so under the EUSS. They must move to and commence residence in the UK before 11pm on 31 December 2020 in order to get pre-settled status, which after five years of residence can then be “upgraded” to settled status. If they cannot move before 31 December 2020, then they will have a much more difficulty immigration process to get through in the new 2021 immigration system. This is quite a straightforward scenario – EU citizens know that their time to enjoy free movement and move to the UK is running low.
More pressing will be the ability to establish a family relationship before 11 pm on 31 December 2020. Imagine a French national who is intending to marry a Cameroon national. Imagine the couple have not known each other for very long, so they are not entitled to the status of “durable partners,” but they intend to get married in April 2020. Due to COVID-19, the marriage was delayed; it could not take place either in the UK or Cameroon due to the travel restrictions and social restrictions, most importantly because neither party to the marriage could travel. As a consequence, come the EUSS deadline for eligibility of 31 December 2020, the couple will be unable to establish their relationship existed (in the strict sense of the rules) before 11 pm on 31 December 2020, and as a consequence the Cameroon national will not be able to bring herself within the scope of EUSS status.
The couple will be locked out of the easier EUSS family permit route and will instead need to consider the strict rules for entry as a spouse, which are much more complicated. If the French national has previously obtained settled status under the EUSS, they will be able to sponsor their Cameroon partner under the spouse visa rules. If the French national merely has pre-settled status, however, this will be impossible. They will be separated from each other for a considerable period of time until the French national acquires settled status and then applies to bring their spouse in on a spouse visa.
These types of situations are not just typical for married couples. Unmarried (durable) partners must be in their relationship with their EEA partner before 31 December 2020 as well. To be eligible to apply for (pre-)settled status as a durable partner, the durable partnership must first be assessed as genuine by the Home Office. “Genuineness” is generally hard to prove. In the case of a durable relationship, the Home Office requires durable partners to apply for a document under the EEA Regulations to evidence their relationship. That document must be issued and received before the durable partner can then apply for status under the EUSS, meaning that if you’re an unmarried partner (i.e. durable partner) an application for that document must be made before 31 December 2020. If you’re a dependent relative (other than someone in the ascending lines of the EU citizens, spouse, or civil partner of the EU citizen), again, you must hold a relevant document for which an application must be made before 31 December 2020.
So, if COVID-19 prevents an applicant from being able to travel and/or apply for the necessary documentation in time, then they will be locked out of the EUSS. There are countless scenarios where this could go very wrong. For example, if an EEA national has died due to Covid-19, then their family members who are left behind should be able to apply for pre-settled or settled status. But under the current rules, those family members would only be eligible for status if they lived with the EEA national for at least one year immediately before they passed away. Setting aside the tragedy and trauma of losing a family member without even being able to say goodbye to them, what happens if the family member was unable to return to the UK in time due to travel restrictions, and they could not reach one year of living together? They will be locked out of the EUSS.
Or what if an applicant wants to retain their residence rights after divorcing their EEA partner? In order to do so, the marriage needs to have lasted for at least three years before starting the divorce proceedings, and both partners must have been living in the UK for at least one year before they apply. Again, if COVID-19 prevented the applicant from reaching that one year threshold before 31 December 2020, they will be locked out of the EUSS and it will not be possible for them to retain their rights.
This would simply be unfair. COVID-19 has had an impact on virtually every aspect of society and government. The immigration system is no different. The process of Brexit has been halted, slowed and changed by the virus as well. That is why the Brexit Civil Society Alliance wrote a letter to the Home Secretary asking for exemptions to the rules to deal with any breaks in continuous residency caused by COVID-19, so that no EU citizen is forced out of status through absolutely no fault of their own.
The Home Office replied stating that "continuity of residence by EEA and Swiss citizens applying to the scheme and who may have been stuck overseas as a result of COVID-19 is one of a number of issues the Home Office is working through. We are taking a pragmatic approach to ensure individuals are not penalised for issues arising from the COVID-19 pandemic."
Based on this response and our internal discussions with the Home Office, it doesn’t appear that COVID-19 will kill applications under the EU Settlement Scheme. In fact, the Home Office have confirmed verbally that absences due to Covid-19 will be considered as a serious reason for those who are on course to apply for or have received pre-settled status. This means that one absence of more than six months but not more than twelve for COVID-19 related reasons will not be considered to have broken continuous residence.
Although it is a step in the right direction, this is the only flexible approach the Home Office have referred to, and it fails to cover all of the other possible scenarios where absence will cause other problems.
Home Office policy on absences affecting those under the EUSS is yet to be determined because, they stated, COVID-19 related absences is an issue that affects all immigration categories and not just the EUSS, so they are trying to work out a holistic approach throughout the immigration system. It might be that the Home Office are taking this issue seriously, and it’s therefore taking time to put together a comprehensive, flexible and compassionate policy to deal with it. However, it might also be that part of it was a wait and see approach to see how serious of an issue absences might be for some visa categories.
But a wait and see approach will not suffice. As EU free movement law fully applies during the transition period, the issue of absence has to be assessed under Article 16(3) of the Free Movement Directive in the same way as for mobile EU citizens having their residence in an EU Member State. A longer absence due to the coronavirus/COVID-19 crisis should be treated as force majeure (unforeseeable circumstances that prevent someone from fulfilling a contract) and should not, therefore, be deemed to break continuous lawful residence.
In the meantime, any absences due to Covid-19 must be documented and evidenced, as the Home Office never takes an applicant’s word for truth. If your continuous residence is endangered due to COVID-19, you are going to need to have evidence that the enforced absence is linked to Covid-19 as well as that your return to the UK was completed as soon as it was safe and reasonably possible. The reality is that unless the Home Office decide to declare COVID-19 as an event of force majeure, the burden is going to be on applicants will need to put their case to the Home Office in order to have the best chance that discretion will be exercised in their favour.
If you have any questions regarding absences or the EU settlement scheme, please do not hesitate to contact us here or send us a question on WhatsApp.
The Independent Chief Inspector of Borders and Immigration (ICIBI) is currently putting together a review of the EU Settlement Scheme (EUSS) to present to the government. As the official lawyers contracted by the European Union (EU) to provide legal and policy advice to the European Delegation in the United Kingdom on the EUSS, Brexit and EU Citizens' Rights, we made a submission to on the progress of the Scheme.
Applying to the EUSS 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 30 June 2021 to apply under the Scheme. If they do not apply in time, they will be unlawful residents in the UK. The Scheme’s strong suits and shortcomings have been discussed many a time. Our data and experience, collected since we started working with the EU delegation in 2018, enables us to map certain problematic patterns within the scheme and the way it operates. In last week’s briefing, we discussed the EUSS process up until the stage of applying to the Scheme, with a focus and communication and outreach that has been done to reach vulnerable EU citizens who need to apply to the Scheme. This week, we look at the next stage, namely what happens after submission of applications.
The government has hailed the EU Settlement Scheme as a great success, with 98% of applicants under the Scheme being granted status, and relatively few applications being refused. These numbers do speak for themselves to some extent. In recent months, however, we have seen a rise in refused and void applications.
Applications can be refused for different reasons, the main ones being that the applicant is not eligible for status under the Scheme, or that they are not suitable for status. The last set of EUSS statistics which included a breakdown of eligibility versus suitability refusals were issued in May 2020. These statistics stated of the 2,300 refusal decisions, 1% are refused on suitability with the remaining 99% refused on eligibility.
This may seem like a small percentage of suitability refusals. However, it only reflects suitability refusals where a valid application has been made to the EUSS. The most vulnerable applicants who are at risk of having their application refused based on suitability grounds are prisoners and immigration detainees. These individuals are severely restricted in their ability to make an application to the EUSS, and lack the adequate legal aid to do so. As a consequence, the likelihood is that they will receive their deportation decision before they are able to lodge an EUSS application. They are then stuck in a vicious circle: the deportation decision prevents them from being granted EUSS status, but they did not know they had to apply before they received the deportation decision.
The effect of this is the same as a refusing an EUSS application on suitability grounds. The Home Office guidance on ‘EEA decisions taken on grounds of public policy’ sets a low bar for the issuing of a deportation decision, meaning that many of these EEA nationals only have to reach that threshold in order to be liable for deportation. Arguably, this is inconsistent with the approach required by the Withdrawal Agreement, which grants EEA citizens more extensive protections. In other words, these EEA citizens are being refused the rights and benefits of their respective Withdrawal Agreements. As things stand now, these cases are not being clearly reported in the statistics. As a consequence, it is difficult to assess whether or not there is a systemic denial of Withdrawal Agreement rights, but the possibility is definitely there.
Regarding refusals on eligibility grounds, which forms the other 99% of refusals, the narrative presented by the Home Office is that caseworkers will only refuse an application if they have made numerous efforts to contact applicants to seek additional information. It is only when these request for additional information are not responded to that the Home Office is ‘forced’ to issue an eligibility refusal. In reality, this presentation is not consistent where the application can be refused because the applicant is applying as either a durable partner, or a dependent relative. Family members and dependent relatives have to send a “mandatory document” proving their relationship with the EEA national as part of the application process. If they fail to do so, these cases are refused quickly once the Home Office has confirmed that the applicant did not submit a relevant document, without necessarily contacting the applicant to request for additional information. In fact, applicants whose application was refused on those grounds of failing to provide a “mandatory document” confirmed that the Home Office made no attempt to contact them to request the relevant document and instead, refused them after a significant delay only informing them about the requirement to hold a relevant document in the refusal decision.
Following from that, it is essential that refusal decisions based on the fact that the applicant has not obtained a relevant document under the EEA Regulations prior to applying into the EUSS are issued before the deadline 31 December 2020. This is necessary because any refusal decision received after this date will prevent the family member from applying for an EEA Regulations relevant document which is mandatory to then succeeding under the EUSS. In essence, if they receive their refusal late, these applicants will be locked out of being granted EUSS status irrespective of whether or not their family situation meets the conditions of the Withdrawal Agreement. This would be denial of status on a procedural basis not on a substantive basis, and should be avoided at all costs.
In addition to a quick processing of these cases, Seraphus recommended that EUSS applicants who require EEA Regulations relevant documents should be entitled to apply for these up to 30 June 2021 based on a relationship that existed by 31 December 2020. This would be consistent with the intentions of the Withdrawal Agreement to ensure that family relationships in existence by 31 December 2020 are protected. By comparison, this approach is no different from requiring EUSS applicants to be resident in the UK before the end of the transition period and then having an additional six months to make the EUSS applications evidencing their eligibility.
When the Scheme was initially rolled out in 2018, there was no process in place to appeal a refused decision, meaning people whose application was refused had no way of challenging this decision. After complaints and campaigns to promote access to justice and a fair trial, the Home Office introduced the right of appeal for the EUSS in January 2020, but only for applications made on or after 31 January 2020. As a consequence, applicants who applied before 31 January 2020 are still unable to appeal their refusals. There does not seem to be any specific logic in denying an appeal right to applicants based on what is essential an arbitrary date for the purpose of the EUSS. Many of the cases refused before the cut-off date were part of the more complex share of applications, and were pending for a significant period of time (6 to 12 months), prior to refusal. Due to the lack of appeal routes, these individuals are forced to re-apply under the Scheme and again, wait for months before finding out the results.
As for invalid applications, there seems to be a communication breakdown between the Home Office and the applicants. Some EEA nationals come to outreach events and ask questions thinking they have valid applications pending but on examination, do not have any type of application outstanding. Applicants who do not have a certificate of application and are not aware of the necessity of this certificate have misunderstood something vital about the EUSS process which will ultimately lead to their application being invalidated. The reasons for this type of misunderstanding are diverse – for example, where applicants think that by scanning their passport or national identity card to the Home Office, they have made an application for status to remain in the UK. They do not realise that there is an additional online application form which must be submitted in order to complete the application process.
After the EUSS deadline has passed, there will be significant numbers of eligible citizens who believed that they had successfully made in EUSS application but instead have had their applications invalidated without their knowledge or understanding of what this meant. It is unclear whether such an excuse will be accepted by the Home Office as “good reason” for a late application, if the applicant in question realise that their initial application was not completed and then wants to reapply after the deadline.
To sum up, applicants and front-line workers need clarity on what reasons will constitute of good reason to apply to the EUSS after the deadline, as it looks like many individuals with previous refusals or with incomplete applications will end up having to apply after the deadline, and it is unknown whether those applications will be accepted. Refusals under the EUSS – whether on eligibility or suitability grounds – need to be communicated more effectively and more quickly. Additionally, the most complex applications such as family member applications, which cannot be made through the app but have to be submitted in paper-form, need to be prioritised as they are more time sensitive.
We will also need to assess whether the Home Office practice generally is in accordance with the Withdrawal Agreement. EU citizens, and their family members, living in the UK before the 31 December 2020 are beneficiaries of the Withdrawal Agreement and restrictions on those benefits, including the above practices, might be unlawful.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
The Independent Chief Inspector of Borders and Immigration (ICIBI) is currently putting together a review of the EU Settlement Scheme (EUSS) to present to the government. As the official lawyers contracted by the European Union (EU) to provide legal and policy advice to the European Delegation in the United Kingdom on the EUSS, Brexit and EU Citizens' Rights, we made a submission to on the progress of the Scheme.
Applying to the EUSS 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. The Scheme’s strong suits and shortcomings have been discussed many a time. Our data and experience, collected since we started working with the EU delegation in 2018, makes it possible to map certain problematic patterns within the scheme and the way it operates. In the first part of this briefing, we discuss the EUSS process up until the stage of applying to the Scheme. The next stage, regarding outcomes of applications, will be the subject of a separate briefing next week.
The first important step to a successful Scheme such as the EUSS is raising awareness. The individuals concerned, in this case EEA nationals in the UK, need to know and understand what they need to do in order to remain in the UK lawfully. The government has made a significant effort to reach out to EU citizens in the UK and ensure that they apply in time. However, there are multiple caveats to the Home Office marketing and outreach campaigns.
Firstly, it is simply impossible to estimate the number of EU/EEA nationals who are eligible to apply to the Scheme, and therefore impossible to track whether they have done so or not. It is clear from the comparison of EUSS applications with the ONS population data that there is a clear underestimate of the numbers of EU citizens who reside in the UK. This raises issues relating to how many more potential EUSS applicants have not applied and how they will be provided with the information and assistance for they need to be successfully granted status under the EUSS. The Home Office appears to understand that much of the remaining EUSS work will relate to complex cases and vulnerable applicants however, it is not clear to what extent the Home Office intends to provide sufficient resources and support to these applicants.
Although there will be additional funding provided to successful organisations for the period between September 2020 and April 2021, this funding will not be sufficient to assist highly complex cases because the reality is that no funding is enough to reach every single eligible person. Additionally, whether or not there will be any funding for assistance from April 2021 onwards in the build-up to the deadline and the period afterwards, is unknown. What we do know is that applicants will face the additional burden of having to demonstrate they had good reasons for failing to apply to the EUSS if they apply after the deadline, and so funding is direly needed.
Secondly, certain groups of applicants have been neglected from the very beginning. One such group with whom the Home Office has failed to engage is prisoners and immigration detainees. Organisations involved with detainees and the EUSS have consistently raised issues with the Home Office relating to the provision of information, advice and the ability of detained EEA citizens to access the EUSS. Feedback from these organisations shows access to information about the EUSS for those in prison and immigration detention is extremely limited.
In many cases, it appears that EEA citizens are issued with deportation decisions prior to the end of their sentence with little access to immigration advice on whether they can challenge their deportation decision, which would in turn make it possible to make a successful EUSS application. The Home Office states that there is engagement through the Ministry of Justice with respect of EEA citizens in the prison estate however, there is very little detail on what this engagement is in practice, and how it is helping prisoners and immigration detainees understand their legal rights. It seems clear that from a political perspective this is a cohort of potential EUSS applicants who the Home Office would rather not provide any assistance to irrespective of whether they have rights under the Withdrawal Agreement or not. This approach is completely unsatisfactory, and additional efforts to highlight the difficulties that this group and their family members are facing need to be made.
Obviously, the EUSS process does not stop once applicants are informed and applications submitted. Unfortunately, there are many flaws in the way the Home Office deals with certain types of applications once they have been submitted. One such issue is the persisting delay in dealing with complicated applications from often vulnerable individuals. To make matters worse, the government website fails to adequately explain how and why such delays may happen.
This is not a new criticism - in response to the previous ICIBI report published in February 2020, the Home Office accepted that the information given relating to processing times needed to be improved. Yet, the information provided on the website is still woefully inadequate, as it merely sets out a list of situations where processing may take more than a month. In addition, if applicants seek to enquire why their case has been delayed, they are not given any useful information by the Settlement Resolution Centre, which is supposed to be their first point of contact if they encounter any issues.
A recent Freedom of Information release gave figures on EUSS applications that were pending for more than three months and those pending for more than six months, revealing that at least 36,000 applications had faced delays of over three months by October 2019. Clearly, the information is available to the Home Office. So why is nothing being done about it? In light of certain cases taking more than six months to be resolved, even up to 12+ months in some cases, the information available to the public remains fundamentally misleading and as a consequence, causes significant anxiety for applicants whose cases face significant delays.
Another reoccurring issue is the Home Office statistical analysis. Firstly, the monthly reports demonstrate that the rate of applications for the EUSS have declined since March 2020. Part of the decline is likely to be attributed to COVID-19. It also seems likely that the high number of applications/grants today means there is a diminishing pool of eligible applicants for the EUSS (though no one can accurately estimate how many citizens are left to apply due to well documented issues with the EUSS/ONS statistics, which is an inherent flaw of the Scheme in itself). As the level of applications has tailed off there is an opportunity for the Home Office to clear the backlog of pending applications and to focus on more complex cases. Yet, the published statistical reports provided by the Home Office show the current backlog of the EUSS is still significant. As of June 2020, it consisted of over 250 000 applications.
For the first time since the introduction of the Scheme, the Home Office intends to produce statistics relating to paper application forms to the EUSS in the next set of quarterly statistics to be released in August 2020. Even if this is finally the case, it seems highly unlikely that the statistics will include any information on the average processing times for the mandatory paper application routes. This is another instance where the Home Office fails the Scheme’s most vulnerable applicants: paper applications are often the most complex, as they include people who do not have ID documents or family members of EEA nationals. In order to increase transparency and help vulnerable individuals, applicants should receive updates at various points in the application process if their application is being delayed. In order to relieve their anxiety, these updates should include meaningful information about why their case is taking a long time to be processed.
Instead of fixing the statistics and giving more information about the progress of the Scheme, EUSS monthly statistics from July 2020 onwards will contain much less information than was previously the case. The reports will no longer contain a breakdown of applications by nationality which has been of vital importance to understanding EUSS application trends.
This will make the work of people in the field – lawyers, statisticians, social workers, government officials, etc. – even more challenging than it has been ever since the Scheme came into existence.
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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.