Still unsettled: five things that need fixing in UK’s EU settlement scheme

The EU Settlement Scheme was meant to give a sense of security to EU citizens in the UK, guaranteeing their rights after the turmoil of the Brexit referendum. But despite having obtained “settled status”, many still feel unsettled.

The scheme has been designed for citizens from the European Union, Norway, Iceland, Liechtenstein and Switzerland who move to the UK before 31 December 2020.

The pilot version of the app used to apply was launched two years ago. Since then, the system has accomplished the monumental task of processing 3,805,200 applications, of which 3,592,800 (95% of the total) concluded, according to the latest data by the Home Office.

For the majority of users, the procedure is simple. The app requires to scan a passport and provide basic personal information that are automatically checked with records at HM Revenues and Customs (HMRC) and the Department for Work and Pensions (DWP).

But the experience is not always smooth. Depending on the personal history, people may be requested to provide additional documents. Dealing with technical glitches, waiting for the outcome, or fighting back if given the wrong status have been major causes of stress.

The book “In Limbo”, which gathers testimonies of EU citizens in the UK and has just been re-published by The Spokesman Books, includes an entire chapter about people who struggled with the scheme.

Natalie wrote: “My French mum has lived here for 45 years… Their response to her was that they couldn’t verify she’d been here for five years: it means we had to upload documents from 2013 until now! She was fuming!”

“Having experienced the capricious disregard for people’s rights under a communist regime, nothing can completely eliminate the fear that one day the authorities might simply change their minds and change the rules,” said Denisa from Romania.

Lawyers and advocacy groups have flagged five key issues that still need fixing in the settled status scheme.

1) The cliff edge

It is unclear what will happen to eligible citizens, and their family members, who have not applied for settled status by the deadline of 30 June 2021. Although the Home Office says valid reasons will be taken into account, the reality is that those who do not apply by the cut off date will not have a legal status in the UK.

Campaigners have warned that there is no experience of similar schemes reaching 100% of the target. If just 1% miss the deadline, it will mean over 30,000 people who have built their lives and homes in the UK will become illegal residents overnight. 

Representatives of the Scottish National Party, the Liberal Democrats, Plaid Cymru, the Green Party and the Social Democrats have recently wrote to the Prime Minister urging the introduction of a guaranteed right to stay in law. But so far the government has not taken any action.

2) The physical document

Another problem is that no physical document is issued to people who acquire settled status. The status is shown on a web page where the holder can ask a code to share the details with others, for example employers or landlords.

Kuba Jabłonowski of citizens’ rights group the3million notes that the digital-only status does not apply across the UK immigration system, but only to citizens from European countries.

“Non-EU nationals and even non-EU family members of EU citizens who acquire settled status get a physical document evidencing their legal position,” Jabłonowski says.

“If you add this anomaly to the complex digital checks and the risk of outages, it is clear that prospective EU employees and tenants will be penalised in the future,” he continues.

In addition, the digital status does not have any international recognition. At a recent event organised by the3million, Ian Robinson, partner at law firm Fragomen, said that EU clients and colleagues have already experienced difficulties boarding planes to return to the UK from Russia and India, as the EU settlement scheme is unknown outside the country. And how to prove UK residence when working internationally?

3) The pandemic

The Home Office will allow excess absences from the UK for citizenship applications due to the Covid-19 emergency, but is yet to clarify whether this will be the case also for the settlement scheme, notes Christopher Desira of legal firm Seraphus.

Citizens with pre-settled status, in particular, risk not being able to convert it to full settlement if they have left the country for more than 6 months in a 12-month period.

As universities deliver classes online, EU students who are not required to be physically in the UK by 31 December 2020 may also lose the right to apply for residence, the3million warns.

4) The data

The opacity of the data about the scheme are a further reason for concern.

“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,” Seraphus lawyers argue in a blog post.

It is estimated that some 3.8 million EEA and Swiss citizens were living in Britain when the scheme was launched. But as the UK had no registration in place prior to Brexit, no one knows the exact number. By now, some who have acquired settled status may have left the country, and others may have arrived. “There is no benchmark to measure against the success of the scheme,” Jabłonowski says.

The Home Office statistics can also be misleading. The 3,805,200 settled status applications include people who have applied multiple times, and the 3,592,800 decisions include the conversions from pre-settled to settled status. The only sure thing is that, as of 31 July 2020, 2,041,200 individuals had obtained settled status.

Overall, a large proportion of applications were concluded with pre-settled status, which applies to people who have lived in the UK for less than 5 years and grants fewer rights. By 30 June 2020, 41% of the total applications, or 1,475,500 cases, were concluded with this lesser status.

Some groups seem to be especially penalised. Professor Catherine Barnard, senior fellow at The UK in a Changing Europe, and Fiona Costello, research associate at the University of Cambridge, have noted that non-EU family members of EU nationals receive higher levels of pre-settled status. They also constitute 50% of the 3,060 refused cases, although they represent just 5.5% of the applications.

Another 25% of the refusals concern people whose position depends on the rights of an EU citizen.  Non-EEA carers of EU children (Zambrano carers) have a 61% refusal rate.

Citizens’ rights group insist that more detailed data should be published to assess the functioning of the system.

Following a complaint by the Joint Council for the Welfare of Immigrants (JCWI), the Information Commissioner ordered the publication of the Policy Equality Statement (PES) that would show the potential discriminatory impacts of the scheme. But the Home Office has not complied yet.

“The Home Office collects age and nationality data from applicants, but isn’t collating statistics on applicants’ sex, ethnicity, race or disability,” say JCWI legal experts. The group has launched a crowdfunding campaign to bring a case against the Home Office, which they believe “is acting unlawfully by failing to gather this data, or to otherwise properly monitor how the scheme is affecting protected groups”. 

5) The vulnerable

Citizens’ rights organisations have repeatedly warned that people who are already marginalised are most at risk of losing their legal status. The Home Office has over these years provided funds to groups that informed and helped vulnerable or hard to reach citizes in the application process.

This support, which has benefited the elderly, children, Roma communities, and people with disabilities among others, is likely to end in 2021. But these groups will have to continue their relationship with the Home Office, for example to convert pre-settled to settled status or to update passport and other personal details.

“We potentially face another cliff edge in 2026, when everyone should have achieved settled status,” Jabłonowski said. “But then there will be less support and the story will no longer be on newspapers’ front pages”.

Claudia Delpero © all rights reserved.

Photo by Ümit Bulut on Unsplash. This article was first published on September 10, 2020, and updated on September 12 with further information from JCWI.

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