New reports by UK in a Changing Europe and the EU Rights and Brexit Hub at the University of York on looming problems
Two academic reports have highlighted the immigration problems that lie ahead for many when the EU Settlement Scheme (EUSS) closes.
A new report by the academic thinktank UK in a Changing Europe warned today that tens, or even hundreds, of thousands of EU citizens will be left without a legal immigration status on 1 July 2021 following the end of the EUSS.
You can read the 23-page report here.
The report notes that the deadline for EUSS applications is 30 June 2021 and those who miss it will be considered 'undocumented' in the UK on 1 July 2021, at least until they submit an application.
While late applications can still be considered if the applicant had 'reasonable grounds' for their tardiness, the UK in a Changing Europe report warns: "[U]pdated EUSS caseworker guidance on what precisely that meant was not issued until April 2021. Those who have not applied by the deadline, and who do not have a good reason for making a late application, will immediately and irreversibly lose their accrued rights of residence, and risk becoming subject to the hostile environment and the risk of removal — so a lot is riding on how these 'reasonable grounds' are defined."
According to the report, while it is unlikely that those who fail to apply by 30 June will immediately be subject to the full force of the hostile environment, their future status remains uncertain.
The report adds: "The guidance suggests that decisions on late applications will become less generous over time and foreshadows potential future tightening which could cause problems for marginalised groups who only realise their lack of status years after the end of the scheme."
In addition, UK in a Changing Europe notes that those who make an application on time but do not receive a decision by 30 June 2021 also face potential difficulties if they cannot demonstrate they have a 'right to reside'.
The report notes: "The [Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020] provide for a continued, temporary right to reside while such decisions are being made – but only if the applicants meet tests which go beyond the requirements to successfully apply under the settled status scheme. Specifically, applicants must be able to demonstrate that they were exercising a 'right to reside' under the old regulations immediately before the end of transition (31 December 2020). This will typically mean showing that they were in 'genuine and effective' work, or that they were the family member of a worker or had permanent residence (which is in turn usually dependent on work history). If they cannot meet any of these conditions, they will lose their rights immediately, even if their application is valid (and subsequently approved)."
The report adds that, with over two million EU citizens only granted pre-settled status, the problems will not disappear and will last for years.
On the plus side, the report notes, however: "The scheme is by far the largest administrative exercise in respect of immigration ever undertaken by the Home Office — and one of the largest anywhere in the world. Overall, it has been hugely successful: around 5 million people have applied — far more than expected — and the vast majority of applications have been approved quickly. This, it should be stressed, is a staggering achievement."
Catherine Barnard, deputy director of UK in a Changing Europe, commented: "On one level, the EUSS is a massive success in terms of providing a quick and efficient system which has reached huge numbers of people. But it is about to enter a phase that will require sensitive management where the government will need to show pragmatism and flexibility in dealing with difficult cases. The ultimate effectiveness of the scheme can only be judged when we know not just how many people successfully applied but how many of these hard to reach groups were left undocumented at the end of the process and how the government dealt with them."
Last month, a report by the academic EU Rights and Brexit Hub at the University of York called for emergency measures to be introduced to ensure that many EU nationals are not wrongfully exposed to the hostile environment after the 30 June deadline.
The 17-page report can be downloaded here.
It states: "It is now clear that a significant minority of EEA+ nationals will fail to register by the deadline, and who will thus be 'left behind'. If they do not qualify as having a good reason for missing the deadline, they automatically and irreversibly lose their right to reside. They will then be subject to the hostile environment, and potentially to removal. We recommend a scoping exercise and an urgent communications strategy for reaching them."
The report says the Home Office caseworker guidance on reasonable grounds for making late applications is inevitably incomplete and will be open to different interpretations, increasing the likelihood of administrative injustice.
"The most straightforward way to address the fragmented, incomplete and misleading guidance and examples, and to avoid creating a perilous cliff-edge as a result of discretionary decisions, would be to recognise a general right to apply late to the scheme," the EU Rights and Brexit Hub recommends.
As a matter of urgency, the EU Rights and Brexit Hub called on the Government to:
• Address the 'status gap' faced by people making late applications, providing for a temporary right to reside to those eligible to apply late to the EUSS, whether or not they have yet applied, until such a time as the final EUSS decision is produced.
• Remove the extra conditions imposed on applicants who make in time applications, but whose application has not yet been determined by the deadline, as they are arbitrary and risk pitching people who have complied with all the EUSS requirements over a legal cliff edge.
• Publish average waiting times, and give details on the number of applicants who, at different points, have waited over three months, over six months, and over twelve months.
The EU Rights and Brexit Hub says the Home Office needs, at the very least, to train all decision makers working with late application requests, and monitor and moderate all late application decisions in order to spot outliers and ensure consistency in approach.
Professor Charlotte O'Brien said on Twitter: "Once again - these are *emergency* measures. Without addressing these problems, things are going to get messy for many on the 1st July, and will be devastating for some years from now."
Kevin Foster, the Minister for Future Borders and Immigration, said last month on 27 May: "Time is running out for those eligible for the EU Settlement Scheme to apply by the deadline of 30 June 2021, but a range of support is available for the most vulnerable or those that require extra support, so don't delay in reaching out for help.
"Once you've applied you will be joining the millions who have secured, in UK law, the status needed to continue living and working here.
"I'm proud since the EUSS launched in March 2019, more than 5.4 million applications have been made to the scheme and there have already been over 4.9 million grants of status."