Since officially leaving the European Union (EU) on 31 January 2020, the UK has been navigating an 11-month transition period negotiated by Theresa May and later Boris Johnson. During the transition period, EU law still applies in the UK, even though the UK is no longer formally a member of the EU.
That transition period is set to end on 31 December 2020. On that day, various important changes happen automatically, because from 1 January 2021, EU law will no longer be directly applicable in the UK. For immigration purposes, the most widely discussed change following from that will be that on the 1st of January, free movement of people ends, and the rebranded points-based immigration system is coming into full force to replace it. Obviously, the end of free movement is a big deal. There will, however, be numerous other significant changes to migration as a consequence of Brexit. One such area is asylum.
Asylum regulation is based on a number of international, EU and domestic laws. The relevant international law is set out in the 1951 Refugee Convention, and the European Convention of Human Rights (ECHR). The applicability of those texts will not be affected by Brexit, the end of the transition period, or any other event to do with the EU, as their legal basis is not in EU law. Despite the ECHR’s name, it is not an EU treaty, and the Strasbourg human rights court is not an EU body – so these laws will continue to apply.
EU law, however, is a different story. Due to the Common European Asylum System, the end of the transition period will heavily affect individuals claiming asylum in the UK, as the EU law relevant to asylum will no longer be automatically applicable in the UK. Some of it will be repealed immediately and replaced by domestic law, such as Home Secretary Priti Patel’s infamous Immigration Bill implementing the points-based system and end of free movement in practice. Another piece of legislation set to be repealed is the Dublin III Regulation. The purpose of the Dublin Regulation is to determine which State is responsible for examining an asylum application. The legislation is marked down for immediate repeal because it is meaningless without cooperation of other EU member states.
In very simple terms, the Dublin Regulation allows the UK to return asylum seekers to another EU country if they passed their on their way to the UK. In less simple terms, Dublin III sets out mechanisms determine which country should assume responsibility of asylum seekers within their borders, and to return them to those responsible countries. The Regulation is intended to ensure quick access to asylum procedures and reduce double handling of asylum claims by different States.
Important to note is that Dublin III does not allow for the UK or any member state to return asylum seekers to their country of origin, or outside of the EU. It applies to asylum seekers within the bloc, and determines which member state is responsible for processing their claim. The Dublin III Regulation utilises a host of criteria to determine where an asylum seeker should claim asylum, ranging from family unity, to possession of residence documents or visas and irregular entry or stay. The latter has become something of a hot topic in recent months, as reports of migrants crossing the channel in small boats from France have risen, and inflammatory remarks from the government has led to much commotion. At some point, Home Secretary Patel stated she wanted the British navy to patrol the seas in order to send illegal channel crossers back to France. This idea was quickly dismissed, as it turned out that it would only be legal under international law if the country whose waters the migrants would be sent back to (in this case France) agreed to the return, but the narrative presented has remained the same.
Ms. Patel has frequently justified returning channel crossers to France on the idea that their asylum claims in the UK are “illegal” because they arrived in France first, and then entered the UK illegally. This is not exactly true. There are limits, legally, to the extent irregular entry can be used as a reason for transfer back to the first point of entry. For example, the principle can be outweighed by other primary considerations such as family unity. Additionally, a Member State will be responsible for a claim submitted by a person who has been living there for at least five consecutive months, even when that person first gained entry into the EU by an irregular crossing of a border in another Member State. So, if an asylum seeker entered the UK via France, but has been in the UK for over five months since, they cannot be returned to France and the UK will automatically assume responsibility.
In 2019, statistics indicate that 714 individuals were transferred into the UK based on Dublin III rules, and 263 were transferred out to another EU country. Numbers have been steadily rising since the Brexit referendum, indicating a push to complete as many Dublin III transfers as possible before the Regulation stops to apply.
The government has given no indication that it plans on introducing a post-Brexit successor to the Dublin Regulation. Instead, it has proposed two draft agreements with the EU which relate to certain specific aspects of the Dublin Regulation. On the one hand, the government is looking to come to an agreement on the transfer of unaccompanied asylum-seeking children for family reunion purposes, and on the other, it has proposed a readmission agreement for accepting returns of irregularly residing UK/EU citizens and third country nationals. Both of these proposals are much narrower than the Dublin Regulation allowed for.
None of these proposals have been accepted by the EU, and the Government has said that it might pursue bilateral agreements with individual Member States if it cannot secure EU-wide agreements. It is unclear whether these individual agreements would be compatible with the EU’s exclusive competence/power over migration policy, and so whether they will be possible at all. The end of Dublin III hence leaves a gap in UK immigration law that is unlikely to be filled before the ever-approaching end of the transition period.
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 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.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
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.
Every day, at 8PM, millions of people across the country clap for our healthcare workers, an initiative which has been encouraged by the government. Meanwhile, as coronavirus numbers soar to almost a thousand deaths a day in the UK, the Home Office published updated guidance for employers on navigating working visas once the new points-based immigration system comes into force on 1 January 2021. Whilst encouraging signs of solidarity, the government is thus detailing the ins and outs of an immigration system which will likely stop many of the people we clap for from coming to work in the UK once it becomes law.
The new guidance lays out that all workers will have to be sufficiently qualified (at the minimum, they must have A-level equivalence) and speak sufficient English in order to get a visa. Highly skilled workers are the only ones who can come to the UK without a job offer. In order to do so, they need to get an endorsement from a relevant competent body in order to obtain a Global Talent Visa.
Any other individual who wants to come work in the UK will need to have a job offer from an approved sponsor. To become an approved sponsor, employers who want to recruit migrant workers will need to take active steps. They will have to check that their business is eligible, and choose which type of workers they are looking to hire: skilled workers with long-term job offers, or temporary workers. Employers will then have to put in place a framework within their business to deal with the sponsorship process, apply online and pay an application fee ranging from £536 to £1,476, depending on the type of business. The whole process usually takes about 8 weeks. Once they become an approved sponsor, they can recruit people without UK residency to fill their job openings.
If an individual, then, receives a job offer from an approved sponsor, they will need to meet a minimum income threshold on top of the language and skill requirements. The general minimum salary threshold is set at £25,600. For some jobs, the threshold may be higher, if the Home Office estimates that it is a higher paid occupation.
If an individual does not meet the income threshold, they may still be eligible for a visa if they can demonstrate that they have a job offer in a specific shortage occupation or a PhD relevant to the job. For these occupations, the income threshold is lowered to £20,480. The list of shortage occupations, which includes doctors and nurses, is published by the Migrant Advisory Committee.
Concerning lower-skilled workers, the guidance explicitly reiterates that “there will NOT be an immigration route specifically for those who do not meet the skills or salary threshold for the skilled worker route.” The skill level for different jobs can be found in Appendix J of the Immigration Rules.
Considering that the average health care worker in the UK makes £19,080 a year, the timing of this publication seems peculiar to say the least. As our Director suggests, how does it make sense for the Home Office state that care workers, nurses, hospital porters, cleaners, logistics personnel, postal workers, etc. will not be able to apply for visa under the new immigration system in the midst of the Covid-19 crisis? It is hard to imagine that the Home Office has a valid reason for needlessly doubling down on an immigration policy which fails to take care of the workers who, in times of crisis, put everything at risk to take care of us.
Just a month ago, when the government introduced its new points-based immigration system, a lot of workers in the health, food production, and transport industries were considered unskilled workers, and unwelcome in post-Brexit Britain.
The basics of the proposed points-based system are clear. If a worker does not have a secondary school diploma, does not speak English, or their salary falls below £25,600, the door to the UK is closed for them. As it turns out, a lot of these “low-skilled” workers are now considered essential in the fight to manage, control and survive the coronavirus crisis. In the current circumstances, they have been put under additional strain.
The trend to bulk buy has put staff in supermarkets and grocery stores under significant pressure, with one employee writing that him and his co-workers have been working long days on their feet, anticipating the next few weeks to be “a nightmare,” and advising against panic buying. There is no reason to bulk buy: there are no food shortages anywhere in Europe, and supermarkets are staying open throughout nation-wide lockdowns as they are part of a (small) group of essential businesses which are exempt from the new rules.
But this may soon change. Agricultural workers from eastern Europe usually fill the majority of jobs on farms. The combination of Brexit caps on seasonal workers with strict coronavirus travel restrictions has slowed recruitment in agriculture, and the EU labour force is simply not coming through. UK farmers find themselves in a crisis and could face a shortage of 80,000 labourers this summer if the Government fails to intervene. These spots as fruit pickers need to be filled by British workers or fruit and vegetables will be left unpicked, and stocks could be put in danger.
Jobs now classified as “key workers” include NHS staff, social workers, the police and military, and those working in food distribution, energy, utilities and transportation. In other words, the people sustaining essential businesses are, by extent, deemed essential workers, as they help feed and care for a country in standstill.
Only a few weeks ago, Johnson’s government described these people and the jobs they filled as “low skilled”, stating that the government “intends to create a high wage, high-skill, high productivity economy.” If anything, the COVID-19 pandemic highlights the stark dissonance between this government’s policy on who is key in keeping the economy running and the truth on who is actually keeping the country together. It proves that “low-skilled” labour does not equate low-value labour. Recognising these workers as “key” or “essential” is a step towards recognising that they form the backbone of our society and without them, British civilisation would have already collapsed. The question remains whether this will be reflected in immigration policy when all of this blows over, and the pandemic finally dies down.
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.
In Adrian Berry’s excellent blogpost, the author and barrister helpfully summarises the ways in which people automatically become British citizens. The complexity of this area of law means that some people may believe they are British when they actually aren’t, and others may already be British citizens without knowing it, especially since one can be a British citizen without having a British passport - a passport doesn’t give you nationality, it is only evidence of nationality.
The law in this area is particularly pertinent for those who may need to apply for the EU Settlement Scheme, but do not realise they need to do so because they mistakenly believe they are British citizens. These individuals must still apply to the EUSS before the deadline, which is the 31 December 2020. So how can you find out if you’re British, or if you need to apply?
You are automatically a British citizen if you were born in the UK or in British overseas territories to a British citizen parent or a parent with indefinite leave to remain. This means that even if you were born in the UK to parents who are EU nationals, you are not automatically a British citizen unless one of your parents had indefinite leave to remain at the time of your birth. Indefinite leave to remain means being ordinarily resident in the UK (i.e. not a visitor) and having no time restrictions on the permission to be in the UK. EU citizens can automatically acquire such a permanent residence status after five years of residence if they are working, self-employed or self-sufficient/student with comprehensive health insurance.
The parent could be either your mother or father. Prior to 2006, parents had to be married before fathers could pass on their British citizenship, so if you were born before 2006 to a British father you may have to register for citizenship. The parent passing on their citizenship could also be your adoptive parent if you were adopted in the UK or a Hague Convention country.
Those born in a foreign country can be British citizens by descent if they have a British citizen parent. However, this is only the case for one generation: British citizens by descent (those born outside the UK) cannot pass citizenship on automatically to children born outside the UK and British overseas territories. So, if you and your British parent were born outside the UK, you may not be a British citizen unless you have been registered.
Other people automatically became British citizens on 1 January 1983 if they were previously Citizens of the United Kingdom and Colonies with a right of abode in the UK, because this is when the British Nationality Act 1981 came into force. Similarly, some people in British overseas territories were automatically made British Citizens through the British Overseas Territories Act 2002.
British nationality comes in different forms so people without British Citizenship could still have British nationality. For example, British Protected Persons are British nationals who have connections to former British colonial possessions. British Protected Persons can be found in now independent countries such as Kenya, Uganda, Zambia and Malawi. People who were born pre-1949 in India or Pakistan but who did not become an Indian or Pakistani citizen after independence will have retained their British Subject status. Alternatively, under the British Nationality Act 1981, people acquire nationality if they were born Stateless and would remain stateless unless given British nationality.
Even if you don’t automatically possess British nationality, you could still acquire it if you register or apply for naturalisation.
If you’re European and unsure whether you hold British nationality, it is worth checking soon. You need to check so, if necessary, you can apply for the EUSS scheme before the deadline on the 31 December 2020, and ensure you remain in the UK legally after Brexit.
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.”
On 29 March 2017, the United Kingdom notified the European Council of its intention to leave the European Union, in accordance with Article 50 of the Treaty on European Union. After almost three years of delay, powerplay and disarray, the day has finally come. Yesterday, the European Parliament officially approved the Withdrawal Agreement. Emotional but sober images of Remain MEPs singing Auld Lang Syne as MEPs signed the Agreement. At 23:00 tonight the British Union flag will be removed from the European institutions in Brussels, and the EU flag lowered from City Hall in London. The UK will officially no longer be a part of the European Union. In anticipation of this, steps have been taken to prepare the country for a complete upheaval of the legal and political framework in the UK.
In an act of defiance, the Scottish government narrowly won a vote to keep the EU flag flying over the Edinburgh parliament building after Brexit. Because, as Fiona Hyslop, cabinet secretary for culture, tourism and external affairs, stated, “at times of uncertainty and disruption, symbols matter.”
And symbols do matter. They do not, however, define what will happen to EU citizens living in the UK in practice – not in the short term. What will change, here and now, for EU citizens coming to the UK and the other way around? Obviously, a lot. Today the government published a Statement of changes to the Immigration Rules, officialising the first immediate change in the law of the UK in practice.
It introduces a new visa category called “Global Talent.” This will replace the existing Tier 1 (Exceptional Talent) category. The Global Talent visa is branded as a new type of visa for talented and promising individuals in the fields of science, digital technology, arts and culture wanting to work and research in the UK.
The process to receive this visa is not dissimilar from the old Exceptional Talent route: Global Talent applicants must hold an endorsement from an organisation engaged by the Home office to develop sector-specific criteria, just like before. The main difference is that the new Global Talent category will not be subject to a cap on the number of applicants, whereas the ole Exceptional Talent category was capped at 2000 places per year. The removal of the cap is supposed to ensure that migrants who can meet the qualifying criteria will be able to secure entry to the UK. Applicants will be able to choose how much leave, in whole years, up to a maximum of 5 years they wish to be granted in a single application, and pay their immigration health surcharge accordingly.
The new category will take effect on 20 February 2020 – real and tangible changes to many other areas of the law will follow until the end of the transition period in June 2021. Incremental change as well as major overhauls will transform the UK after Brexit, including Scotland, and no flag waving above Holyrood will change that.
Earlier this month, it was reported that EU citizens face a “teachers tax” of £4,345 over 5 years if they want to come teach in the UK after Brexit. Although not factually incorrect, this statement does not reflect the law – or the reality – of teachers working in the UK.
There is no such thing as a “teachers’ tax.” There is simply an immigration system already in place which in consequence of the Brexit vote will apply to anyone who does not fall under the umbrella of exemptions to that system. In other words, after Brexit, EU citizens will fall under the same immigration regime as third party (non-EU) nationals. Curbing immigration by ending free movement in this way was one of the Leave-campaign’s main selling points, and largely how they won the 2016 referendum.
Effectively, the end of free movement means that everyone, including EU nationals, will need to apply for a visa if they want to enter and live in the UK post-Brexit. The Johnson government has drawn up a plan of what this would look like. Needless to say, under this plan, getting a visa costs money. The Tier 2 visa, which is the working visa for which teachers would have to apply if the rules stay as they are now, costs £1220 if it is a permit for longer than 3 years. In addition to that, the government has stated that any non-British nationals will be liable to pay a yearly NHS immigration surcharge, which all non-EU migrants already pay today. The price of the immigration surcharge is set to go up to £800 a year. If you add up 5 years’ worth of immigration surcharge with the visa fees, it will cost at least £4,345 to live and work in the UK for five years after Brexit, explaining the figure that The Independent alludes to.
Some groups of special workers will have different requirements. The main group of workers with guaranteed special status is NHS workers. The Tory manifesto promises to alleviate the burden of immigration for EU workers with NHS job offers by offering cheaper visa fees and fast-track entry. It is their attempt to ensure that the NHS survives Brexit, labour shortages are filled and employment targets met. It is not unimaginable that if the government recognises a labour shortage and reliance on Europe for the NHS, it may do so for other fields and professions as well.
In short, unless the government implements a special exemption for teachers, which may be a good idea considering the labour shortage in the teaching profession, then yes, they too, like any non-British nationals in the UK, will have to pay for immigration services and the cost of these applications is not to be underestimated. But it is not a tax on teachers, as the Independent article seems to imply. Rather, it is simply the price tag which comes attached to the UK immigration system, which, after Brexit, will apply to EU and non-EU nationals alike.
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.
Last week’s general election means the Conservative Party now has a clear majority in government to fulfil the many promises they made in their manifesto, including major overhauls to immigration policy. Not only did Boris Johnson vow to get Brexit done by the New Year, but his party also plans to put EU nationals on the same level as third party nationals once free movement law ends. This in and of itself is a radical approach to immigration law, and will have major consequences for EU citizens in the UK.
After Brexit, once EU nationals are levelled with third party nationals, the conservatives want to introduce what they call a points-based immigration system, which they proclaim to base on the Australian visa system. The plan, broadly, is to introduce three visa categories after Brexit, for which anyone who moves to the UK will have to apply, and which replace existing categories.
The first is the “Exceptional Talent/Contribution” category, and includes the entrepreneur and investor visa. These visas are geared towards “highly educated migrants who have received world-leading awards or otherwise demonstrated exceptional talent, sponsored entrepreneurs setting up a new business or investors.” These people will not require a job offer and will receive fast-track entry to the UK. This category is not dissimilar from the current Tier 1 visa category, albeit with some minor changes.
The second category is for skilled workers, and to some extent, is a rebrand of the current Tier 2 category. The vast majority of these visas would require a job offer, in line with how work visas are allocated to third party nationals now. The skilled workers category is the only way for workers who meet the criteria of the points-based system and have a confirmed job offer to get limited leave to remain. It will effectively require all non-British nationals to prove that they have a job offer as well as reach the amount of points required under the points-based system. Needless to say, implementing this will constitute the most significant change compared to free movement law, which is currently in force, as it requires EU national to comply with visa requirements. This will have a massive impact on fields such as hospitality, where EU nationals make up more than half of the workforce, and the NHS. The Conservative party propose to make up for that potential labour shortage by introducing fast-track entry and reduced fees for certain special types of work, such as a NHS specific visa.
The general idea behind a points-based system is that people are scored on their personal attributes such as language skills, education, age and work experience. If their score hits the minimum required, they can acquire a visa. Crucially, there is no one fixed way to score enough points; a plethora of work experience can make up for older age and excellent language skills might make up for lack of formal education. As long as an individual’s different attributes add up to enough points, they will be granted a visa. The key point about points-based systems is not that they are inherently liberal or progressive; whether it is a liberal system will depend on how points are awarded. Rather, the key feature is their flexibility and the ability to get enough points by making any combination of characteristics. That is how the Australian points-based system works.
Contrastingly, the UK immigration system today is based on mandatory requirements. This is a system where applicants need to tick all the boxes in order to be granted a visa. For example, an applicant will need to prove his language skills, have a certain amount in savings, show that they have a job offer AND show that they will be making a minimum salary. If the individual lacks one of those requirements the visa will be refused, that is how simple it is.
The issues with the Tories’ proposals is that they want the best of both worlds. They want to introduce point-based characteristics, but keep the mandatory requirement of a job offer, combining mandatory requirements with points-based elements. Essentially, they want a points-based system where, after making the points-based selection, they can cherry pick who is granted a visa and who is not. As such, although they like to call it a points-based system, it not really points-based, and it is certainly not as simple or easy to navigate as portrayed by the Party.
The third category is the “sector-specific rules-based” category, which will be made up of specific temporary schemes such as for low-skilled labour, youth mobility or short-term visits. These visas will be time-limited and will not provide a path to settlement. They are how the government will attempt to match the demand for workers in specific sectors with enough visas to supply that demand. Supposedly, these visas will replace the free movement of labour with state planning. Deciding which markets need workers will be outsourced from the Home Office to the Migration Advisory Committee (MAC). This means that the MAC would react to gaps in the economy, flag them up, and the government will then create a temporary visa category to fill the gap. These will be revised on an ongoing basis based on expert advice from the MAC. In other words, the temporary visas will be reactionary in nature. They will be time-limited and will not provide a path to settlement. If this sounds difficult, that’s because it is. The economy adapts to reality more quickly than the law, and new policy takes months, if not years, to come into force. By the time a new visa category actually opens, the gap in the job market it was trying to fill may well have been resolved by market forces.
As an attentive reader may notice, the only migrants mentioned in the Conservative policy proposals are economic immigrants. The manifesto does not mention changes to other areas of the current immigration regime. It retains the status quo of Theresa May’s controversial hostile environment policies, fails to tackle legal aid cuts, and does not propose any change to the clear human rights violation of indefinite detention, for example. Additionally, the manifesto indicates an attack on judicial review. Since the removal and erosion of appeal rights in the 2014 Immigration Act, judicial review is now often the only recourse to justice for many people who have been wronged by the immigration system. Reforming judicial review, and limiting its scope, removes another layer of checks and balances on Home Office powers, suggesting that not only labour rights, but also human rights, are set to be qualified and watered down after Brexit and once this government starts rolling out policy.
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.