EU Settlement Schceme

Home Office publishes guidance targeting rough sleepers

On 01 December 2020, the Home Office amended the Immigration rules to include a new discretionary refusal or status cancellation ground where a person is deemed to be rough sleeper. The newly issued guidance clarifies key points in respect of how the guidance should operate:

- The rule was amended on 6 April 2021 to clarify that permission may only be refused or cancelled where a person has repeatedly refused suitable offers of support and engaged in persistent anti-social behaviour.

- Rough sleeping means sleeping, or bedding down, in the open air (for example on the street, in doorways or parks) or in buildings or other places not designed for habitation (for example stairwells, sheds, car parks, stations, or tents).

It should be noted that the policy explicitly states that it should not be applied to EEA/Swiss citizens and family members who have been granted status under the EUSS. However, the policy will apply to EU citizens who come to the UK under the new immigration system. With respect of the EUSS, the guidance confirms that anyone with status under the scheme should not have their status considered for cancellation on the basis of rough sleeping. The policy also confirms that there may be EU citizens who have not applied to the EUSS before 30 June 2021 deadline and confirms that they would be eligible to apply late to the scheme, if they have good reason for missing the deadline. Unfortunately, the guidance does not direct members of Immigration Enforcement teams to signpost and assist rough sleeping EU citizens to apply to the EUSS (by contrast the EUSS caseworker guidance contains explicit instructions for Immigration Enforcement when they encounter EU citizens who have not applied to the EUSS by 30 June 2021; it would be beneficial for these instructions to be repeated in the guidance on rough sleepers).

This Home Office policy is controversial as some organisations consider this to be targeting migrants already in highly vulnerable situations. Comparison is made to a previous unlawful Home Office policy to remove homeless EEA citizens and there is a legal challenge against the policy in motion.

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

Can your family members join you in the UK after Brexit? by Charlotte Rubin

If you are an EU/EEA or Swiss national living in the UK, and you have pre-settled or settled status under the EU Settlement Scheme (EUSS), your family members may be able to join you subject to certain conditions.

If you are an EU/EEA or Swiss national and you have not applied for the EU Settlement Scheme yet, we urge you to do so as soon as possible, since the deadline for application is 30 June 2021. All you need to prove to obtain pre-settled status is that you moved to the UK / lived in the UK before 31 December 2020.

Once you have obtained (pre-)settled status, you can then look into getting your non-British family members who do not live in the UK to join you here. If they are in the UK with you, they should be able to apply to the EU Settlement Scheme directly and obtain leave that way. If they are abroad, and they have a valid UK document such as a UK permanent residence card or derivative residence card, they can apply to the EU Settlement Scheme directly as well. If they do not have such documents, they will have to apply for a family permit to enter the UK. Once they get to the UK, they will then be able to apply to stay under the EUSS.

There are two types of family permit. One is the EEA Family Permit, and the other is the EUSS Family Permit. The former will no longer be valid after 30 June 2020, and the route to apply for it will close that same date. This guide therefore focuses on how to apply to the new EUSS family permit instead.

Broadly, there are three requirements for family members to receive an EUSS Family Permit: they will have to be a “close family member,” they will have to prove that your family relationship existed before the end of the transition period (i.e. before 31 December 2020), and that the family relationship exists at the time of application.

“Close” family members are defined in the immigration rules as either a spouse, civil partner or unmarried partner, a child or grandchild aged under 21, a dependent child or grandchild of any age, or a dependent parent or grandparent.

To prove the existence and length of the family relationship, many different types of documents are accepted. For married couples or civil partners, the most common type of proof is a marriage certificate or document evidencing civil partnership. For unmarried durable partners the proof can consist of joint tenancy agreements, joint accounts, joint bills, pictures together, or any other proof that shows a long-term (long-term is defined as longer than two years) relationship. For other family relationships birth certificates and/or evidence of dependency such as court orders or bank statements may be necessary.

You will also have to show that your family member will be joining you in the UK within six months of their application for an EUSS Family Permit. This means that they must either be traveling to the UK with you, or joining you there within six months of the date of application.

Applying for a family permit is free of charge. If granted, the Permit allows for the family member to enter and stay in the UK for six months, during which they are expected to apply for the EUSS. In the event that their application is successful, they can then stay with their EEA family member indefinitely. If their application is unsuccessful, they are expected to return home at the end of the six months when their family permit expires.

If you need assistance with your EUSS Family Permit application, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.

How many migrants live in the UK? By Charlotte Rubin

In 2019, the population of the whole of the UK was estimated to be 66,796,807. This is an estimate, because unlike some other countries, the UK does not have a population registry.

In countries with a population registry, the government collects data on all its residents. Residents are usually obliged to notify the government of any changes in their status such as changes of address, residency, or marital status. These countries usually also have a compulsory ID card for each resident, to keep the register up to date. Contrastingly, the UK government has no such database or register. General public opinion is against the introduction of such a system, as it is considered too intrusive and infringing on the right to liberty. Instead, the Office of National Statistics in the UK assumes a number for the current population, based on what is known about births, deaths and population ageing combined with expectations based on historical data about levels of immigration.

As a consequence, it is quite hard to estimate how many migrants come and go. This is the case both for regular migrants, especially those from the EU or other visa-free countries, but even more so for undocumented migrants.

Overall, the ONS reports that international migration in the year to mid-2019 was 16% lower than in the previous year. This was a result of 17,000 fewer immigrants (a 3% decrease) arriving than in 2018, and 28,000 (or 8%) more people emigrating. This downward change is estimated to have continued throughout 2020 as a result of the COVID-19 pandemic and the finalisation of Brexit. Some have said that the compound effect of COVID and Brexit have led to an “exodus” of foreign-born people from the UK, with some estimates reporting that 1.3 million people have left the UK since the end of 2019 (https://www.escoe.ac.uk/estimating-the-uk-population-during-the-pandemic/). But the numbers are not known, and impossible to confirm.

One illustration of how imprecise the numbers are exactly is the estimated amount of irregular or undocumented migrants in the UK. Preliminarily, it is important to know that until 30 June 2021, these statistics comprise only non-EU citizens, as immigration rules will not be enforced against EU citizens until after that date. Focusing on non-EU migrants in the UK, then, there are no accurate data on the number of lawfully resident non-EU citizens. The Home Office is required to report yearly estimates of the number of non-EU citizens holding a valid residence permit. They do this based on the number of temporary residence permits issued that year that remain valid. It includes for example, visas for entry and extensions where these have been granted. However, the estimate does not include migrants who have been granted permanent residence in the UK (i.e. indefinite leave to remain, or settled status). To make things worse, the government also has no way of knowing if those who were previously granted indefinite leave to remain still live in the UK now, or whether they are even alive. Any estimate of the migrant population, therefore, requires numerous assumptions to be made based on average yearly ILR grants, birth rates, death rates, etc. It is likely to have a significant margin of error for migrants with lawful residence, let alone for those without it.

Another recent example of how difficult it is to estimate population numbers is the Home Office failure to estimate the number of EU citizens living in the UK. Since 1 January 2021, free movement for EU citizens has ended, meaning they can no longer move to work and live in the UK as they please. EU citizens who lived in the UK before that date can apply to retain their residency rights under the EU Settlement Scheme. When the Home Office launched the EU Settlement Scheme in 2018, they estimated that three million EU citizens were living in the UK, and that this was about the number of applications they would receive. With over five months left to apply, over four million people have applied to the Scheme. In the five months to come before the Scheme closes on 30 June 2021, thousands if not a million more are expected.

In short, the government does not know exactly how many migrants there are in the UK, and has no real way of finding out unless it introduces a formal registration system like in the Netherlands or Belgium.

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

The EU Settlement Scheme: A look at the numbers by Charlotte Rubin

Just shy of 2.6 million applications for status under the EU Settlement Scheme have been received since its launch in January 2019. That is what the latest set of statistics published by the Home Office, state.

October 2019 saw the highest number of applications per month since the EU Settlement Scheme was introduced: over half a million applications were submitted, with a looming possibility of Brexit day pushing people to action. The slightly overwhelming flow of applications has led to a backlog in processing times: more than 20% of applications were still being considered a month after having been received.

As more people apply, the strengths and weaknesses of the Scheme are becoming increasingly apparent.

Preliminarily, statistical estimates are unlikely to be accurate because it is simply not known how many EU nationals live in the UK. Free movement law has allowed EEA nationals to enter and leave the country without it being recorded for decades. As such, any estimates as to how many people should apply are only just that – estimates, which are hard to back up with hard evidence.

The Office of National Statistics (ONS) have attempted to do some work on this, but as the Scheme solidifies and application numbers increase, we can see that their published estimates are plainly wrong. Kuba Jablonowski, a Political Geography lecturer and researcher at Exeter University, dug into the numbers.

One major drawback of the ONS statistics is that some applications under the Scheme are counted towards the total number of applications despite coming from applicants who already have status under the Scheme. These are people who were granted or refused status, and then, for whatever reason, re-apply. The Home Office has confirmed that it counts repeat applications under the EU Settlement Scheme as new applications:

“It’s right that every application is counted because each application has a separate outcome. However, our initial analysis of internal figures suggest that repeat applications currently represent less than 0.5% of applications.”

0.5% out of 2.6 million applications may not sound that significant, but it means that thousands of cases are counted twice, distorting the statistics. Additionally, if the Home Office continues to use the same statistical methods, the discrepancy between the real number of applicants and the published numbers will only increase as many applicants who were initially granted pre-settled status will have to apply again to receive settled status, thus all becoming “double applicants.” Moreover, those who get a status in the crown dependencies, and also get a status under the Home Office scheme, are counted in the Home Office numbers. In reality, these should be ignored for the purposes of calculating the number of missing applicants.
Another red flag is the low number of applicants from the age group 65 or older. According to the statistics, only 2% of the total applications come from people aged over 65, although they make up a higher percentage of the EEA population in the UK. Reasons for this include the technology barrier, as well as the limited reach of government marketing and campaigning of the Scheme to secluded and isolated communities.

The discrepancy between expected/estimated applications and true applications is confirmed in the monthly statistics from
October 2019. Following the ONS estimates, by October 2019, 132-148% of Portuguese nationals, 105-121% of Bulgarians, 93-102% of Italians, 90-101% of Spaniards and 92-99% of Romanians applied under the Scheme. Based on these numbers, more people from these countries have applied than the ONS even estimate are in the country – and there is another year of the transitional period to go, in which more applications are anticipated.

Clearly, there is little oversight on how well the Settlement Scheme is taking off. We do not know how many people have applied today – let alone how many people are supposed to apply by the cut-off date of 31 December 2020. Either the estimated number of EU nationals in the UK is inaccurate, or the double applications under the scheme have troubled the numbers – or both.

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