The Home Office released its Policy Equality Statement earlier this month in relation to the EU Settlement Scheme. Almost 4.3 million people have now applied under the Scheme to stay in the UK after Brexit, far exceeding the Home Office’s estimate of the eligible population. Despite this arguable success, significant concerns remain about vulnerable population groups being at risk of missing out on the application window and losing their rights of residence as a consequence.
The Policy Equality Statement is an important document, as it assesses whether the entirety of the EU Settlement Scheme is compliant with anti-discrimination laws such as the 2010 Equality Act. Essentially, it is the Home Office’s self-evaluation of whether the Scheme is proportionate and whether it risks discriminating against protected groups, such as EU citizens with disability, women, or other minorities.
The overall conclusion and general theme of the report is that whilst the Home Office acknowledges that there is at least some indirect discrimination built into the Scheme, it is not enough to be considered unlawful, and can be justified as a “proportionate means of achieving a legitimate aim”. For example, the Home Office findings confirm that disabled applicants will encounter difficulties navigating the online-only application system. However, the report explains this arguably discriminatory hurdle stating that the overall aim of the online system to render the application system simpler and more accessible justifies it. Additionally, the report states that the risk of discrimination has been mitigated by funding for charities and outreach to help vulnerable groups like disabled people through the application process.
Similarly, the EUSS application system is found to indirectly discriminate against women. The Statement notes that the automated checks for evidence of continuous residence fail to cover certain welfare payments which women are more likely to receive, such as Child Benefits, making the application process more complicated for women. While the Home Office acknowledges that “this could put women at a particular disadvantage”, the potential discrimination is justified because the system “reduces the overall administrative burden on applicants in general”, and therefore this is in compliance with the Equality Act. The Home Office also points to how it has tried to “mitigate any potential disadvantage”, in this example by accepting a wide range of other residence evidence where the automated checks do not suffice.
The worry from all this is that a lot of people who the Scheme is objectively discriminating against will not be able apply before the deadline of 30 June 2021, and become unlawful residents in the UK as a consequence, even though they qualify for residency. It is very hard to predict how many people will fall through the cracks like this. In fact, considering that Home Office data expected 3 million applications to the Scheme in total, yet they have already received 4.3 million of them with over seven months left to apply, the Home Office arguably has no idea how to estimate any of these numbers.
To sum up, the Home Office admits that there is indeed discrimination against various minority groups, but that the exceptional circumstances of Brexit, combined with efforts made to mitigate the discrimination in question, suffice to justify it, and it is therefore not a legal issue. It will be a waiting game to see whether claims will be brought against this conclusion, or any other claims made in the 105-page-long document, and if so, whether the courts will agree.
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In their most recent report, the Migration Observatory confirms what many lawyers and people working in the immigration field feared: no matter how much outreach and campaigning the Home Office plans to do, thousands of EU citizens in the UK are still likely to miss the EU Settlement Scheme deadline, which is set on 30 June 2021, and lose their lawful residence. These are not necessarily vulnerable individuals, but often simply people who do not realise that they need to apply to the Scheme. Broadly, the people most at risk of missing the deadline fall into five categories.
Firstly, those who are simply not aware that they need to apply. A perfect example of this are very long-term residents, who might think that they do not need to apply because they have lived here for so long, or EU citizens with permanent residence. In absolute numbers, tens of thousands of EU citizens fall under those categories. We know that at least 145,000 non-Irish EU citizens have been granted permanent residence from 2004 to 2019, who are not (yet) UK citizens. Many of these do now know that their permanent residence is not enough to warrant their continued lawful residence after Brexit.
Similarly, children of EU citizens whose parents do not themselves apply might not realise that their children need to do so, or mistakenly believe that their UK-born children are automatically UK citizens. In absolute numbers, this means a big group of children are at risk, as there are an estimated 689,000 children living in the UK with non-Irish EU citizenship. Other people who may not be aware that they need to apply to the Scheme are people who have been rejected for permanent residency or who were previously ineligible, and who do not realise that the criteria to obtain status under the EUSS have been made less restrictive. Additionally, people with criminal records and people who have been removed in the past might be reluctant to apply due to fear of being refused status or not meeting the suitability requirement), even if they are in fact eligible. In prison specifically, EEA citizens are in theory entitled to apply, but in practice unaware of the scheme or unable to submit their application due to practical difficulties.
The second category comprises of people who already face some kind of social exclusion, or who enjoy reduced independence or autonomy. Again, children are part of this group, specifically children in care and care leavers eligible to apply. According to Home Office estimates, there are around 5,000 children in care and 4,000 care leavers who would be eligible to apply to the EUSS, but some local authorities might not have information about their citizenship and hence do not apply on their behalf. In addition, some children might lack a valid ID and/or might not be able to provide evidence of their residence in the UK before coming into care. Other vulnerable groups include rough sleepers, victims of domestic abuse, victims of modern slavery and migrant Roma communities. According to government statistics, which tend to underestimate population numbers, there are currently at least 4,250 EEA nationals who qualify for homelessness assistance, 101 000 victims of domestic abuse, 1,400 victims of modern slavery and 200,000 Roma people, respectively. The numbers add up quickly.
Thirdly, some people might know about the EU Settlement Scheme, but struggle to navigate the application process. This could be due to practical difficulties such as language barriers, mental health problem or people with cognitive disabilities. It could also be due to technical difficulties, for example low digital literacy, low general literacy, or age. If we do the math again, these categories account for at least 600,000 vulnerable individuals: 244,000 people with language difficulties, 15,000 individuals who say their mental health impacts their daily activities, 42,000 people who have never used the internet before, 300,000 EEA citizens who have no formal qualifications, and 58,000 people aged over 75.
Lastly, people who lack evidence to prove their eligibility will also fail to acquire status, even though they might qualify for it. The biggest groups here are people who lack identity evidence to demonstrate their EEA nationality, of which there are at least 100,000 in England & Wales, and people who lack evidence of their relationship to a qualifying EU citizen. These people cannot simply rely on their residency in the UK to acquire status under the settlement scheme, but also need to prove that their relationship with a qualifying citizen is genuine. The number of people qualifying for status based on their family members is unknown.
Finally, an important group to mention are the people who may have acquired pre-settled status now, but who might now know or forget to upgrade that status to settled status once they have reached the five-year continuous residence requirement.
Need I go on? The report shows that traditionally vulnerable groups, be it people in poverty, social isolation, or living in precarious conditions, are more likely to miss the Scheme deadline than other EEA nationals. People without bank accounts, or leases, or bills in their name. It also shows how enormous that group of people is, and how many people may therefore end up without a status. This is why immigration practitioners call the EU Settlement Scheme a “Windrush Scheme on steroids” in the making. The Scheme is set up to reinforce existing inequalities, and filter out applicants who are perceived as less useful or desirable in British society, as people from challenging backgrounds are most likely to slip through the cracks and end up being in the UK unlawfully through no fault of their own. no matter how much money the government throws at their EU Settlement Scheme outreach campaign, not everyone that needs to know about the Scheme will be made aware of it.
Immigration practitioners have cautioned about this since the Brexit vote; the Migration Observatory report confirms it yet again. Meanwhile, the government knows about it, yet does nothing to ensure change. That should tell any layman enough about the intentions and goals behind the Scheme.
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A study by the Institute for Public Policy Research (IPPR) has found that the hostile environment policy, introduced by Therese May in 2012 in an effort to deter irregular migrants from staying to the UK, has fostered racism and discrimination, contributed to pushing many people into destitution, and erroneously affected people with the legal right to live and work in the UK.
The hostile environment’s key objective has always been to make life for those living in the UK without immigration status so difficult that they ultimately decide to leave. In order to achieve this, measures under the hostile environment make it harder for individuals without status to rent a house, find a job, get driving licences or even simply open a bank account, in the hope that by making these basic services harder to access, they would voluntarily leave and irregular migration numbers would decline.
As voluntary returns/departures from the UK have dropped since 2014 (after the hostile environment came into force), the IPPR’s report found that the policy not only fails to meet that goal, but it also has endangered and complicated the lives of migrants in the UK in various ways.
Firstly, for those without immigration status with little to no financial support from the state, finding work is essential to ensuring some financial security and to avoid destitution. By forcing employers to check employees’ “right to work” and criminalising work without immigration status, the hostile environment pushes migrants without a status into the shadow economy and cash-in-hand jobs (especially if they are not allowed to open a bank account). This makes them vulnerable to exploitation and modern slavery if they manage to find work, and destitution if they don’t. The risk of destitution and impoverishment is exacerbated by the restrictions on access to benefits and healthcare. The report specifically mentions malnutrition, cramped and substandard accommodation, and mental ill-health among undocumented migrant families unable to access public funds.
The problems do not stop there. The hostile environment, it turns out, not only impacts its target population, namely individuals without immigration status, but also many individuals with legal immigration status.
As such, the report shows that the policy fosters ethnic and racial bias, as home and work raids are often targeted at specific nationalities on the basis that they are “believed to be removable.” Unsurprisingly, these people are often people of colour and ethnic minority background. Similarly, the right to rent checks have been ruled discriminatory and biased against people of ethnic minority backgrounds, because they make landlords more suspicious of “removable-looking” people, whatever that may mean, and therefore disadvantage tenants of ethnic minority backgrounds who might very well be British nationals or people with leave to remain.
Recently, the hostile environment has been under heavy scrutiny. In March, the Wendy Williams Windrush review was laid before Parliament. The report overtly criticised the workings of the Home Office’s hostile environment, exposing how thousands of legal UK residents were classified as illegal immigrants and denied the right to work, rent property, access healthcare and benefits during the Windrush Scandal. In April, the Court of Appeal affirmed that immigration checks required by landlords to ensure that tenants have the right to rent are discriminatory, but fell short from ruling that the discrimination was severe enough to render it unlawful. The case is currently being appealed.
The IPPR report warns that a significant proportion of EU citizens will miss the EUSS application deadline of 30 June 2021, barring them from accessing benefits and many public services and losing their immigration status altogether. Despite the mounting warnings and criticism, the Home Secretary confirmed in May that EU citizens who fail to apply for status under the EU Settlement Scheme in time will be unlawful residents and fall subject to all hostile environment policies currently in place.
For all these reasons and many more, the report is unequivocal in its condemnation of the policy, stating that “restrictions on access to benefits can force people without immigration status into destitution. There is evidence of malnutrition, cramped and substandard accommodation, and mental ill-health among undocumented migrant families unable to access public funds … The hostile environment does not appear to be working for anyone: for migrants, for the Home Office, or for the wider public.”
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When the government first outlined its vision for a new, post-Brexit immigration system in December 2018, they clarified that they wanted the system to be modern, efficient and in keeping with the “shift towards digital status in all areas of life”.
The first large-scale project where this “shift” became prominent is the EU Settlement Scheme, the framework under which EU citizens need to apply for status if they want to remain lawfully in the UK after the end of the transition period on 31 December 2020. Under the Scheme, EU citizens do not receive physical proof of their status, having to rely instead on a digital-only status, which they can access via the government website.
Under the hostile environment, introduced by Theresa May in 2012, the government forces service providers like landlords, employers, banks and universities to ask everyone they provide services to prove their status, effectively delegating its border control responsibilities to non-governmental entities. As a consequence, non-British nationals in the UK have to prove that they are legal at every turn. In order to live and survive in the UK as a non-British national, easy access to proof of one’s immigration status is therefore essential.
The Home Office argues that the digital-only status reflects that, as it allows EU citizens to “check their status from anywhere, at any time” from their phone. The government stated that “the EU Settlement Scheme protects the rights of EU citizens in UK law and gives them a secure digital status, which unlike a physical document, cannot be lost, stolen, damaged or tampered with”, selling the digital-only access as advantageous and useful for all parties involved. This reasoning fails to consider many factors which can prevent EU citizens from accessing their status, and therefore, accessing their rights.
Firstly, sharing and evidencing a digital status is hindered by numerous practical obstacles such as lack of IT knowledge, literacy, language barriers, or age differences. At Seraphus, we have encountered many EU citizens, especially elderly or isolated communities, who for example do not have email addresses or phone numbers. Both are necessary not just to apply for (pre)settled status, but also to access and share their status with service providers further down the line. For now, free advice and support is available to help EU citizens who for whatever reason are not secure in their application, apply under the EUSS, but there is no indication that this support will carry through once the deadline for application has passed, and citizens will need assistance to change, update or share their status instead of simply to obtain it.
This will harm many EU citizens once the points-based system come into force in January 2021. Most importantly, EU citizens are highly likely to be discriminated against similarly to how it occurs against third-party nationals today under the “right to rent” rules. In fact, only 3 in 150 landlords said they would be prepared to do these digital checks when renting out a flat, meaning that candidates with physical proof of their status will be prioritised over EU citizens who have go through the hassle of accessing their status online. The risk of being discriminated against increases, as it always does, for more vulnerable segments of the population, including those from isolated, older or BAME communities, women, children, and those with disabilities.
As Christopher Desira wrote, barriers also exist for the third-party requesting access to the status, multiplying the likelihood of discrimination. For example, a private landlord with a basic understanding of English and IT will find challenging to access and understand an EU citizen’s digital status, and therefore prefer to rent their property to someone where that hurdle need not be overcome, i.e. a British national who simply has to show their passport to prove that they have the right to rent in the UK.
Thirdly, the risk of any type of digital-only access scheme is that there can be a system outage at critical times, leaving EU citizens out in the cold when needing to show their status. In addition, digital security is a hot topic. Digital records can be breached, hacked or made unavailable, with not only consequences for the EU citizen who at that moment is unable to prove their status, but also for their privacy in the longer term. How securely is all this digital data stored, what are the contingency measures in case of a breach, and who is the data shared with? The government have answered none of these arguably critically important questions.
Non-EU family members who are eligible under the EUSS do receive a physical, credit-card sized document evidencing their settled or pre-settled status, so it is clear that if the Home Office wanted to, they could give EU citizens the option to request a hard copy document as well. The question remains why they then decided against it after a petition calling for physical documents as proof of (pre)settled status was brought to them in August 2019. Physical proof of immigration status, even on an optional basis, is not only easy implemented, but also an important basic right, especially since the government’s own assessment concluded that digital-only access to status would cause serious issues, and that a physical backup should be retained until the online system is streamlined and perfected to a standard which actually benefits EU citizens instead of hurting them.
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The Independent Chief Inspector of Borders and Immigration (ICIBI) is currently putting together a review of the EU Settlement Scheme (EUSS) to present to the government. As the official lawyers contracted by the European Union (EU) to provide legal and policy advice to the European Delegation in the United Kingdom on the EUSS, Brexit and EU Citizens' Rights, we made a submission to on the progress of the Scheme.
Applying to the EUSS is mandatory for all EU citizens and other EEA/Swiss nationals who wish to continue living in the UK lawfully after the transition period. EU citizens have until the 30 June 2021 to apply under the Scheme. If they do not apply on time, they will be unlawful residents in the UK. The Scheme’s strong suits and shortcomings have been discussed many a time. Our data and experience, collected since we started working with the EU delegation in 2018, makes it possible to map certain problematic patterns within the scheme and the way it operates. In the first part of this briefing, we discuss the EUSS process up until the stage of applying to the Scheme. The next stage, regarding outcomes of applications, will be the subject of a separate briefing next week.
The first important step to a successful Scheme such as the EUSS is raising awareness. The individuals concerned, in this case EEA nationals in the UK, need to know and understand what they need to do in order to remain in the UK lawfully. The government has made a significant effort to reach out to EU citizens in the UK and ensure that they apply in time. However, there are multiple caveats to the Home Office marketing and outreach campaigns.
Firstly, it is simply impossible to estimate the number of EU/EEA nationals who are eligible to apply to the Scheme, and therefore impossible to track whether they have done so or not. It is clear from the comparison of EUSS applications with the ONS population data that there is a clear underestimate of the numbers of EU citizens who reside in the UK. This raises issues relating to how many more potential EUSS applicants have not applied and how they will be provided with the information and assistance for they need to be successfully granted status under the EUSS. The Home Office appears to understand that much of the remaining EUSS work will relate to complex cases and vulnerable applicants however, it is not clear to what extent the Home Office intends to provide sufficient resources and support to these applicants.
Although there will be additional funding provided to successful organisations for the period between September 2020 and April 2021, this funding will not be sufficient to assist highly complex cases because the reality is that no funding is enough to reach every single eligible person. Additionally, whether or not there will be any funding for assistance from April 2021 onwards in the build-up to the deadline and the period afterwards, is unknown. What we do know is that applicants will face the additional burden of having to demonstrate they had good reasons for failing to apply to the EUSS if they apply after the deadline, and so funding is direly needed.
Secondly, certain groups of applicants have been neglected from the very beginning. One such group with whom the Home Office has failed to engage is prisoners and immigration detainees. Organisations involved with detainees and the EUSS have consistently raised issues with the Home Office relating to the provision of information, advice and the ability of detained EEA citizens to access the EUSS. Feedback from these organisations shows access to information about the EUSS for those in prison and immigration detention is extremely limited.
In many cases, it appears that EEA citizens are issued with deportation decisions prior to the end of their sentence with little access to immigration advice on whether they can challenge their deportation decision, which would in turn make it possible to make a successful EUSS application. The Home Office states that there is engagement through the Ministry of Justice with respect of EEA citizens in the prison estate however, there is very little detail on what this engagement is in practice, and how it is helping prisoners and immigration detainees understand their legal rights. It seems clear that from a political perspective this is a cohort of potential EUSS applicants who the Home Office would rather not provide any assistance to irrespective of whether they have rights under the Withdrawal Agreement or not. This approach is completely unsatisfactory, and additional efforts to highlight the difficulties that this group and their family members are facing need to be made.
Obviously, the EUSS process does not stop once applicants are informed and applications submitted. Unfortunately, there are many flaws in the way the Home Office deals with certain types of applications once they have been submitted. One such issue is the persisting delay in dealing with complicated applications from often vulnerable individuals. To make matters worse, the government website fails to adequately explain how and why such delays may happen.
This is not a new criticism - in response to the previous ICIBI report published in February 2020, the Home Office accepted that the information given relating to processing times needed to be improved. Yet, the information provided on the website is still woefully inadequate, as it merely sets out a list of situations where processing may take more than a month. In addition, if applicants seek to enquire why their case has been delayed, they are not given any useful information by the Settlement Resolution Centre, which is supposed to be their first point of contact if they encounter any issues.
A recent Freedom of Information release gave figures on EUSS applications that were pending for more than three months and those pending for more than six months, revealing that at least 36,000 applications had faced delays of over three months by October 2019. Clearly, the information is available to the Home Office. So why is nothing being done about it? In light of certain cases taking more than six months to be resolved, even up to 12+ months in some cases, the information available to the public remains fundamentally misleading and as a consequence, causes significant anxiety for applicants whose cases face significant delays.
Another reoccurring issue is the Home Office statistical analysis. Firstly, the monthly reports demonstrate that the rate of applications for the EUSS have declined since March 2020. Part of the decline is likely to be attributed to COVID-19. It also seems likely that the high number of applications/grants today means there is a diminishing pool of eligible applicants for the EUSS (though no one can accurately estimate how many citizens are left to apply due to well documented issues with the EUSS/ONS statistics, which is an inherent flaw of the Scheme in itself). As the level of applications has tailed off there is an opportunity for the Home Office to clear the backlog of pending applications and to focus on more complex cases. Yet, the published statistical reports provided by the Home Office show the current backlog of the EUSS is still significant. As of June 2020, it consisted of over 250 000 applications.
For the first time since the introduction of the Scheme, the Home Office intends to produce statistics relating to paper application forms to the EUSS in the next set of quarterly statistics to be released in August 2020. Even if this is finally the case, it seems highly unlikely that the statistics will include any information on the average processing times for the mandatory paper application routes. This is another instance where the Home Office fails the Scheme’s most vulnerable applicants: paper applications are often the most complex, as they include people who do not have ID documents or family members of EEA nationals. In order to increase transparency and help vulnerable individuals, applicants should receive updates at various points in the application process if their application is being delayed. In order to relieve their anxiety, these updates should include meaningful information about why their case is taking a long time to be processed.
Instead of fixing the statistics and giving more information about the progress of the Scheme, EUSS monthly statistics from July 2020 onwards will contain much less information than was previously the case. The reports will no longer contain a breakdown of applications by nationality which has been of vital importance to understanding EUSS application trends.
This will make the work of people in the field – lawyers, statisticians, social workers, government officials, etc. – even more challenging than it has been ever since the Scheme came into existence.
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Six months after the EUSS was piloted in November 2018, the Migration Observatory published their initial report analysing which EU Citizens were at risk of failing to secure the rights to which they are entitled after Brexit through the EU Settlement Scheme (EUSS). As time passed, it became increasingly clear that the EUSS process had many flaws, including the double-counting of applications, inaccurate estimates of the number of EU nationals living in the UK, and the Home Office’s inability to ensure vulnerable communities actually know about and apply to the Scheme. Now, with less than 12 months left before the closure of the Scheme on 30 June 2021, many cracks in the EUSS system still remain. Vulnerable applicants especially, whether at risk of missing the deadline due to their age, language abilities, technological abilities, health issues, home circumstances or something else, are still not applying in as great of a number as they should be.
The lack of outreach to certain vulnerable communities, and the challenge the EUSS in its current form poses to them, is a real problem for many individuals who have been living in the UK for years. One example of such a vulnerable community is the Roma people, of which it is it is estimated that there are at least 200,000 living in the UK, the vast majority in England.
The Roma community is made up of people from different sub-communities, from different countries and nationalities across Europe. They speak different languages and often interact mainly with people from their known, relatively closed network. Combined with a low literacy level within their community, this makes it hard to spread information about external issues like Brexit and the EU Settlement Scheme into their circles.
As such, the Roma Support Group reported that the vast majority of Roma people they interviewed knew about Brexit, but were unaware of specific information on how to apply for immigration status after Brexit. The ones that did know about the EUSS did not acquire that knowledge through the traditional channels of Home Office communication outlets such as adverts, radio, social media, etc. Rather, they get their information from trusted individuals within their community.
Of the Roma people that have already applied to the EUSS, which is only a minority, a significant amount required additional support and time to submit applications; in fact, only 3% of Roma people who have applied to the scheme to date were able to do so completely independently. These extremely low numbers are not surprising when considering that Roma people are less likely to be IT proficient, and more likely to need language support, than other EEA nationals in the UK.
To make matters worse, Roma people’s applications are often amongst the most complex ones. Roma people often encounter difficulties when trying to obtain ID cards, which is one of the requirements when applying under the EUSS. The Roma Support Group reports that Slovak Romas, for example, have difficulties in obtaining passports, especially for their children born in the UK. The waiting times for appointments at the Slovak Embassy is approximately 3 to 4 months, the Embassy operates only in London and due to financial and time restrictions, many Roma are not able to obtain their passports in the UK. Some Slovak Roma have already travelled to Slovakia to apply for passports for their children because that turned out to be easier than obtaining them in the UK.
Even if they do have ID cards, Roma people often have a harder time proving their residency due to their community lifestyle and culture. Examples of complicated applications include Roma rough sleepers and Roma women, who are less likely to be employed, making it harder for them to prove their residency. As a consequence, many of them end up receiving the wrong status. In fact, 15–25% of Roma women and elderly Roma the Roma Support Group engaged with had to apply for pre-settled status despite having lived in the UK for more than 5 years, to avoid the difficulties that they face in providing the documents needed to obtain settled status.
Coram, a legal charity founded in 1981 that works to promote children's rights both in the UK and abroad, states that the Home Office is also failing to recognise a particular gap in applications coming from children in the UK. With more than 900,000 eligible EEA citizen children thought to have been living in the UK in 2017, less than half had been granted status under settlement scheme by 31 March 2020. Of eligible children in the care system, the number of which is estimated at 9000, only about 500 had secured status by that same date.
Many of these children will be British citizens either by birth or through registration, but are not aware that they need to register in order to confirm their citizenship. The children who fail to do so are at risk of losing both their citizenship and their EUSS status after 30 June 2021, warns Coram.
Additionally, Coram highlights the issues that arise form granting vulnerable children pre-settled status, stating that vulnerable children should not be granted short-term forms of immigration status, as these do not offer adequate levels of protection. Short-term immigration status such as pre-settled status not only pose challenges for local authorities seeking to plan for children’s futures, but also very immediate challenges for young people who must undergo a probationary period before being able to settle in the UK. Additionally, children granted pre-settled status may not always understand that they will need to re-apply in order to remain in the UK lawfully. If they fail to do so in time, they are at risk of hundreds of thousands of people falling out of the EU settlement scheme and losing their residency rights.
No child or young person who previously held pre-settled status should fall off their route to settled status in the event that they do not make the settled status application at the right time. To prevent this, Coram asks that the Home Office should at the very least commit to prompting holders of pre-settled status before their status expires and telling them what they need to do to remain lawfully in the UK. Ideally, it would go beyond that and introduce a provision to grant settled status to all looked after children and care leavers who apply to the EU settlement scheme, because grants of pre-settled status are simply not in these children’s best interests.
This is something immigration experts on all sides of the political spectrum have warned for ever since the EU Settlement Scheme was introduced. No matter how much funding the government provides to help vulnerable people apply to the Scheme, it will not reach everyone it needs to, and vulnerable people who fail to apply in time will bear the consequences.
That is why practitioners and third-party organisations campaigned to make the EUSS a declaratory scheme instead of an active application process, in order to ensure that vulnerable groups such as Roma people and children would not be penalised unnecessarily and get the status they are eligible for. These efforts were in vain, as the Home Office reiterated only a few weeks ago that all EU citizens wishing to secure status in the UK will have to apply under the EUSS in its current format in order to remain lawfully resident and not become subject to the hostile environment rules.
EU support groups have since scaled back their recommendations. Coram, for one, have advised that in order to avoid EU children becoming unlawful residents in the UK, the £1012 citizenship fee currently charged to children, which prevents many children from accessing their rights, should be scrapped, vulnerable children to be identified more accurately across the country, and the EUSS deadline should be extended. Disappointingly, the Home Office, on their behalf, has clarified that the government does not plan on extending the deadline, even in light of the COVID-19 pandemic and all the consequences that flow from it. It has not proposed any other clear changes to accommodate children at risk, except clarified that social workers have an explicit duty to apply help children in their care apply under the Scheme.
To avoid a political and moral disaster when it turns out that members of these vulnerable groups have not applied to the Scheme in time, the Home Office will have to give and do more – more outreach, more time, more flexibility, and more humanity.
COVID-19 makes it difficult, if not impossible to operate a normal immigration system. Travel restrictions make entering or leaving the UK a complex process, implementing ordinary work or income requirements for visas can undermine public health messages, and to make matters worse, the Home Office itself has been heavily impacted by the government-imposed lockdown, as their staffing levels have suffered and their workload is constantly changing. It is therefore not surprising that numerous changes aimed at ensuring that the UK’s immigration and visa systems continues to function properly have been announced in the past few months. Last week, a cross-party Home Affairs Select Committee published its report on the Home Office response to the impact of COVID-19 on the immigration and visa systems.
In the report, the Committee welcomes the government decision to scrap the immigration health surcharge for all NHS and social care workers, calling it “a recognition of the contribution made by the front-line workers fighting COVID-19.” However, it is said not to go far enough. Committee Chair Yvette Cooper MP said: “It is very welcome that the Government has agreed to waive the Immigration Health Surcharge and extend the bereavement scheme for NHS and social care workers. However, most care workers and low-paid NHS support staff are still excluded from receiving the free one-year visa extension granted to clinical staff, and as a result could be facing costs of hundreds or thousands of pounds this summer.
The Committee therefore recommends to open free visa extensions to the same range of employees as they have done for the immigration health surcharge waiver. It also recommends simplifying (and lowering the price tag) of paths to British citizenship and permanent residency to those health and social care workers who risked their lives during the pandemic.
“Excluding the care workers who hold dying residents' hands, the cleaners who scrub the door handles and floors of the COVID-19 wards, or the porters who take patients to intensive care is just wrong. The Government must ensure that all measures of support for NHS and care workers apply to all frontline staff equally, irrespective of grade or job title.”
The Committee also evaluated visa extensions for non-NHS staff. When announcing the Home Office policy change which allowed all visas due to expire before 31 July 2020 to be extended, the Home Secretary said that “nobody will be punished for circumstances outside of their control”. To make good on that promise, the Committee recommends that the Home Office implement automatic, blanket visa extensions instead of making individuals apply for them via email, to ensure that individuals do not overstay their visa unintentionally.
Highlighting a concern which lawyers and immigration experts flagged up immediately after the visa extensions were made public, the report reiterates there is currently no legal basis for any of these extensions. Individuals relying on government policy announcements (which can be changed at any given time and lack legal foundation) need legal reassurance that their extension is lawful and valid and that they can continue to live and work in the UK. The Committee therefore recommends that the Home Office implements a statutory instrument (a form of secondary legislation) to clarify the legal basis of both the extension of leave for all individuals who are unable to leave the country before the expiry of their current visa, and for the automatic extension of leave offered to NHS staff.
Analysing the financial impact of the coronavirus on the visa system as a whole, the report acknowledges the disruption and economic impact of COVID-19, recognising that many individuals have lost their jobs or seen their income significantly reduced through no fault of their own. It is within this context that the Committee recommends adapting visa requirements such as the Minimum Income requirement to take loss of income due to COVID-19 into account when evaluating applications. In order to ensure public health and safety for all, the Government is also urged to lift the No Recourse to Public Funds (NRPF) conditions, which caused turmoil a few weeks ago when it seemed like the PM was not aware of the policy’s existence. The Committee Chair said the government “needs to make sure that these exceptional Covid-19 circumstances aren't pushing families into desperate hardship because of the NRPF rules which prevent them getting the urgent support they need.”
Last but not least, the Home Affairs Committee evaluated the impact of the coronavirus on the EU Settlement Scheme (EUSS), calling upon the Home Office to step up their efforts to identify vulnerable persons who may not have applied to the EUSS yet.
The report shows that COVID-19 has exacerbated the underlying problems of the EUSS. One of those problems is the lack of information on how the Home Office will approach late applications (applications made after the deadline of 30 June 2021.) The Home Affairs Committee recommendations include a clarification of what support will be provided to assist vulnerable individuals in applying, especially for children in care, given that there is a low application rate for that particular group of people. At the minimum, it is said local authorities should increase their work to identify EU children in care who have not yet applied to the scheme, but ideally, more comprehensive measures should be implemented. The Committee therefore recommends that the Home Office grant automatic Settled Status to all children in care and care leavers, without requiring them to explicitly apply.
The Committee also calls on the Home Office to clarify the legal position of those with pre-settled status. During the pandemic, people with pre-settled status have questioned whether they are able to access all public funds, specifically whether they can get benefits, or whether those rights are reserved for people with indefinite leave to remain only.
To sum up, just like many experts in the area, the Committee is willing to cut the Home Office some slack in these unprecedented times. It is appreciated that going through the normal routes to introduce new policies is made complicated by circumstances outside of the government’s control. However, it is in times like these that guidance needs to be clear, unambiguous, and publicly available so that practitioners know the law, visa holders feel secure, and the Home Office act legally to address the issues we face.
After the death of George Floyd on 25 May 2020 at the hands of a white police officer, protests against police brutality and institutional racism erupted in the US and around the world. The US now finds itself in a period of political unrest and upheaval not unlike after Martin Luther King’s assassination in 1968. In the UK, George Floyd’s death resonated with many, mobilising thousands in London, Manchester and Cardiff to march in solidarity with Black Lives Matter, a movement dedicated to ending violence and systemic racism towards black people.
Highlighting the racism and unfairness engrained in the American justice system is important, but it is easy to judge what happens abroad without looking inward. The reality is that Britain is not innocent when it comes to institutional racism or police brutality – far from.
When it comes to UK immigration, the dissonance between how white (Western) immigrants and immigrants of colour from the Global East and South are treated is painstakingly stark. The culmination of these double standards was the 2018 Windrush Scandal, which erupted after Theresa May introduced the hostile environment rules in 2012. Under the hostile environment, those who lack documents evidencing their lawful residence become subject to the hostile environment checks. They are no longer allowed to work, rent or even open a bank account in the UK.
Many people of colour who came to the UK in the 50s, 60s and 70s from Commonwealth countries were granted indefinite leave to remain in 1971 but when the hostile environment kicked in, thousands of them were not able to prove their status, and as a consequence, were wrongly told that they were in Britain illegally. Hundreds were detained, and some of them deported, despite living and working in the UK legally for decades.
Although Windrush victims are now able to apply for compensation under the Windrush Scheme, the number of applications has been remarkably low, and internal reviews confirmed that the government’s hostile environment immigration policies still have devastating impacts on the lives and families of black citizens in the UK. With the new Points-Based Immigration system, set to come into force in January 2021, that impact is set to worsen. Requirements like visa fees (UK fees are among the highest in the world), income thresholds (the minimum salary under the PBS is set at £25,600) and health surcharges (recent controversy on the NHS surcharge led the government to scrap it for migrant NHS staff) have been found to predominately affect those from the East or South, as they are less likely to be able to meet financial requirements. The new points-based system thus builds on existing discriminatory structures instead of breaking them down. That is not a coincidence.
Don’t be mistaken - Windrush was a direct result of an immigration system set up to discriminate against some but not others. It was not just a profound institutional failure or mistake of government. It was not a mistake at all, but rather simply the hostile environment rules put into practice. The points-based system is a continuation of that. It is institutional racism at its peak, rearing its ugly head yet again, here in the UK.
When the then Prime Minister Theresa May (yes, you read that right - the same person who introduced the hostile environment in the first place) apologized for the catastrophe of Windrush in April 2018, she insisted it was not her government’s intent to disproportionately affect people from Afro-Caribbean backgrounds in the operation of her hostile environment policy. That statement shows exactly what the government fails, or refuses, to understand, namely that racism is much bigger than discrimination with intent, that it encompasses more than active and direct discrimination. It is about institutional neglect of certain parts of the population, certain neighbourhoods, and certain ethnic minorities, creating and feeding into more hardship for those groups compared to their white British counterparts. The public health crisis that we are currently dealing with is only the latest of an endless string of examples.
People of colour are 2.5 times more likely to die of COVID-19 than their white counterparts in the UK. For the black Caribbean and African population, that number goes up to three against one. This is partly because BAME communities are more exposed to the virus, as a third of all working age black Africans and black Carribeans work in key worker roles (that is 50% more than white British people), whilst Indian men are 150% more likely to work in health or social care roles than their white British counterparts. It is also because BAME communities are more economically vulnerable to the current crisis than white ethnic groups, and not enough is done to actively help them bridge that gap.
To make matters worse, people of colour are not only more likely to die of the virus once they get it, but they are also 54% more likely to get fined for violating lockdown rules than the white majority British population. More broadly, in our criminal justice system, Metropolitan Police officers are four times more likely to use force against black people compared with the white population.
It is true that the UK is not a nation of gun ownership like the US. It is true that British police officers do not carry weapons. And it is true that these things play a part in limiting violence and abuse of power. But we cannot trick ourselves into believing we are so much better, and that it could not happen here. The US might be a land of extremes, and the UK a country of covertness, but the foundational institutional challenges we face are the same.
The "Right to Rent" scheme was introduced as part of the hostile environment rules aimed at restraining illegal immigrants from entering and living in the UK, and came into force in 2016. The policy requires landlords to check the immigration status of prospective tenants. If they fail to do so, and end up renting out property to undocumented migrants, they can be charged unlimited fines or even a prison sentence.
The Joint Council for the Welfare of Immigrants (JCWI), a London-based charity, is challenging the lawfulness of this policy in court. Last year, the High Court ruled the scheme unlawful, racially discriminatory, and in breach of the European Convention on Human Rights. The Government appealed this decision, and on Wednesday, the Court of Appeal allowed the Secretary of State's challenge, finding that although the Right to Rent scheme does lead to discrimination against those who do not hold British passports and those who do not have traditionally ethnically-British attributes, it is an indirect consequence of the scheme’s otherwise legitimate goal to control and curb immigration, and therefore, the policy itself is not unlawful.
Lord Justice Hickinbottom stated: “The discrimination is entirely coincidental, in that the measure does not unlawfully discriminate against the target group but only collaterally because, in implementing the Scheme, as a result of the checks required by the Scheme and the possible sanctions for letting to irregular immigrants, landlords engage in direct discrimination on grounds of nationality; and section 33 and the Discrimination Code of Practice clearly recognise and seek to address that discrimination by landlords."
In short, the Court of Appeal agreed that the Right to Rent scheme causes discrimination but did not rule that that discrimination amounted to a human rights violation, because it is indirect, and only “some landlords” may participate in it. The court leaves it to the government to decide whether the racial discrimination is “greater than envisaged”.
To advocates and immigration lawyers, it is clear that whatever was envisaged, any amount of racial discrimination is unacceptable. The Home Office’s own research has shown that 25% of landlords would not be willing to rent to anyone without a British passport, whilst the Residential Landlords Association found that more than half of landlords were less likely to rent to those with limited time to remain in the UK. Effectively, the Right to Rent scheme turns landlords into border patrol, as they are forced to evaluate who does and does not have the right to be in the country. Needless to say, landlords are not properly trained or qualified to do so.
Chai Patel, the JCWI’s legal policy director, said that, “At a time when our lives depend on our ability to stay at home safely, ethnic minorities and foreign nationals are being forced by the government to face discrimination in finding a safe place for them and their families to live.” The JCWI has said that they are planning to appeal the decision to the Supreme Court. In the meantime, however, the policy is still in place, and the people affected by it remain at risk.
You can support JCWI's work by donating here.
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.