By Emma McClelland - 10 May 2021
In April, news broke that Dahaba Ali, a journalist who had lived in the UK since the age of ten had been refused 'settled status' under the EU Settlement Scheme (EUSS). This is something all EU citizens who came to the UK before 2021 must now apply for if they wish to continue living here, no later than 30 June this year.
The EUSS grants applicants one of two types of status. Settled status requires applicants to have been resident in the UK for a five-year 'continuous' period. If applicants have not accrued five years' residence but were here before December 31st 2020, they will likely receive pre-settled status ('limited leave to remain').
Many were astonished at the Home Office's assertion that Dahaba Ali couldn't evidence her presence in the UK post-December 2019. After all, she studied here, works here; and has lived here continuously for 17 years. Sadly, for charity leaders and legal experts involved in protecting the rights of EU migrants, the news was just another reminder of the barriers hidden in the EUSS.
What the statistics don't capture
Statistics show that, so far, 5.2 million applications have been made. Of those, at least 45,500 were refused and 54,100 deemed 'invalid'. And while the number of overall applications seems positive, the picture is not as rosy on closer inspection.
For a start, it is likely that a significant number of people have yet to apply. Knowing exactly how many is impossible, since we don't have a precise record of how many people are eligible for the EUSS. But the main area of concern is for groups classed as 'vulnerable' (including looked-after children, disabled people, survivors of domestic abuse and people who lack digital literacy).
There is also the risk that even among long-term residents, some may simply not realise that they need to apply. According to research from the Joint Council for the Welfare of Immigrants (JCWI), one in seven care workers surveyed online didn't know or weren't sure what the EUSS was, while one in three didn't know there was a deadline. Caitlin Boswell, Project Officer for EU Citizens at JCWI, comments: "If even 1% of the estimated amount of eligible people don't apply, that's tens of thousands more undocumented people vulnerable to harmful Hostile Environment policies, for whom the consequences will be devastating."
Digital barriers
Simply being aware of the scheme isn't the only issue for EU nationals. At employment rights charity Work Rights Centre (WoRC), advisers received over 200 queries between March 2020-March 2021 about the EUSS and its impact on their employment prospects, amounting to one in every five beneficiaries. For Dr Dora-Olivia Vicol, the charity's director, the issues with the EUSS application process are twofold.
"The digital nature of the EUSS poses real difficulties for a significant minority of EU nationals," she explains. "First, because making this application requires a level of digital competence, hardware, and internet connectivity that is simply not within everyone's reach.
"Second, because this is an application that requires regular digital maintenance. EU nationals have to notify the Home Office if they change their contact details, name, or ID, and all of this happens online. Whenever they are asked to prove their right to work to an employer, they can only do it by issuing a virtual share code with a limited 30 day validity. For millions of EU nationals, the right to reside in the UK has become a test in digital literacy.
"I worry that the inability to prove their right to work will push vulnerable EU nationals into precarious informal employment."
Women's burden of proof
Proving one's right to live and work in the UK also has a hidden gender dimension. Lizzie Wilkinson, an EUSS Project Officer at Europia, has seen an increase in people unable to evidence that they were in the country prior to December 2020, making it harder to get pre-settled status. "This is a problem for both men and women," she comments. "However, in my experience, women find it much harder, particularly if they have assumed caring roles within their family and are not in employment or seeking commonly used services."
For Charlotte O'Brien, Professor of Law at York Law School, women's rights in particular are at risk. She explains: "As far as the Withdrawal Agreement goes, the key social security risks recognised, and for which workers have their residence rights protected in EU law, are male risks. Women are disproportionately impacted by care responsibilities and domestic abuse - events not considered in EU law. While the EUSS does not require evidence of work, it is easier for applicants to demonstrate that they meet the residence conditions if they have a clear and simple work history."
This, Dr. Vicol adds, has been compounded by the fact that, from March to December 2020, the Department for Work and Pensions (DWP) suspended the allocation of National Insurance Numbers to recent EU migrants. "In theory, this shouldn't be a problem. In practice however, beneficiaries told us time and again that they struggled to find work without a NINO".
The long journey from pre-settled to settled status
For those who already have pre-settled status, there are still many hidden pitfalls along the path to permanent residence. Periods of absence of up to two years are allowed before pre-settled status is automatically lost, but what people may not realise is that, if they want to apply for settled status in the future, their residence must have been 'continuous' for five years - a definition that is far from clear.
"The guidance can be confusing – even to those whose first language is English," says Wilkinson. "'Continuous' residence is broken by absences of more than six months in a rolling 12-month period. A person cannot upgrade to settled status if they have broken their five-year continuous period, but are also being told they can leave the UK for two years if they have pre-settled status."
Frontline advisers fear the long-term knock on effects. Andrei Savitski, a service provider at the Work Rights Centre, explains: "There are a lot of non-EEA family members, whose status depends on the status of their sponsor (the EEA national). When the EEA national's pre-settled status expires and they can't get settled status, it is also the non-EEA family member who loses their right to live in the UK. This includes children, who may have gotten used to life in the UK or may have lived here their entire lives."
The kids aren't alright
The problems caused by the EUSS may not become apparent immediately, particularly when it comes to children. Immigration barrister Colin Yeo explains: "If you're a child born in the UK and one parent is British, you're automatically British. Where both parents are EU citizens; under the old system before Brexit they didn't have to have any proof that they were 'settled'.
"So, children are going to grow up here and assume they're British. They're later going to realise - when applying for university for example - that they need five years of evidence (parents' bank statements, for example) to prove it. I'm concerned that a lot of the repercussions of all this are going to be hidden. There's going to be no apocalypse on the day of the deadline. It's going to take years and, for the people who are going to be affected, their lives will just be quietly ruined."
For Boswell, the route back to status for these children isn't always going to be easy. "Even where the late applications guidance provides a route back to status, this isn't a solution to making people undocumented, even temporarily. The loss of legal status, liability for criminal penalties and exposure to the Hostile Environment creates huge and potentially life-ruining risks."
Missed deadlines
Late applications to the scheme present another area of uncertainty. The Home Office guidance indicates that people will still be able to apply after the deadline but will need to provide an acceptable reason for doing so.
The guidance on what constitutes a 'good reason' for late applications is expansive. For example, children whose parents/carers have failed to apply in time, may have leeway. However, according to O'Brien, a number of problems remain.
"It appears that until their status is (belatedly) regularised they will, notwithstanding their 'good reason', still have no right to reside, and face all the losses of entitlements that entails. Moreover, if the family as a whole didn't apply in time, then unless the parent(s) can demonstrate their own good reason for failing to apply for status themselves, then the child's permission to apply late will not do them much good - what use is their right to reside if their parents do not have one?"
The potential for discrimination is another risk here, as Yeo explains: "There's a lot of sympathy for white middle-class professional EU citizens, but not so much for Somali-Dutch citizens, Roma citizens and people who have committed minor crimes," he comments. "I think they'll find it harder to rectify their situation in future if they fail to secure their status."
For Lora Tabakova, a service provider at WoRC, the lack of resources needed to deal with late applications present additional issues. "After the deadline, every single case will become a complex one," she comments. "Anyone who has not applied under the scheme on time will need an adviser at a level higher than the OISC level 1 limited to the EU Settlement Scheme. The capacity of caseworkers and immigration solicitors being able to take on cases is limited already."
An alternative path
So, what could be done to protect the rights of EU citizens in the UK? Charity leaders and legal experts point to the deadline. According to Boswell: "The only real long-term solution to protect EU citizens rights is to lift the deadline and to grant settled status to everyone who is entitled to it. 'Automatic indefinite leave to remain' was promised by Boris Johnson in 2016, so it's not a radical ask."
O'Brien suggests a similar path of action, commenting: "One policy change that would make things immeasurably better for EU nationals would be to scrap the deadline, or else soften it considerably by adopting a 'substantive' scheme. Rather than trying to cover numerous possible scenarios in which late applications are permissible, it would make sense to adopt a blanket policy that it is possible to apply after the deadline, but that applications without 'good reasons' for being late could attract a late application fee.
"Regardless of which approach is taken, we need some provision for the 'interim' status of those who have not applied by the deadline but who are eligible to apply late. Simply subjecting them temporarily to the full force of the Hostile Environment is a disproportionate penalty - especially where it is recognised that they were not expected to meet the deadline. Being able to regularise their status later will not make up for potentially having lost their job or home, or more in the interim."
Providing physical documentation for EU nationals to prove their rights is also important, as Vicol explains: "The current digital platform cannot be the only way to prove one's right to live and work in the UK. Imposing it without a physical backup demands a level of digital skill, English, and self-administration that are simply not attainable by everyone. The only way to prevent EU nationals from falling through the cracks of a digital platform, would be to offer them the option of physical proof."
Softening the brunt of Brexit
For O'Brien, the EUSS and the problems it poses are important to everyone, not just EU nationals. "There are still too many people who do not understand the gravity of the deadline, or the nature of the scheme," she comments.
"This applies not just to EU nationals in the UK, but to society at large - it is important that we do not see this as a cohort-specific issue, but one which engages us all, in terms of our commitments to our fellow residents, and politicians' vocal commitments to protect them from the brunt of Brexit."
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