Catherine Barnard and Fiona Costello examine the issues that EU nationals in the UK face navigating the EU Settlement Scheme put in place after Brexit.
It has been almost four years since the deadline (June 2021) for ‘in time’ applications to the EU Settlement Scheme, (EUSS) has elapsed. Under the EUSS introduced in 2019, all EU nationals, their family members and some others had to apply to continue residing lawfully in the UK, in principle a lifelong status. Those who applied either got pre-settled status (PS) (those with less than five years continuous residence accrued) or the more favourable settled status (SS) (for more than five years continuous residence).
It had been thought there were around three million EU citizens living in the UK at the time of Brexit, yet over eight million EUSS applications have been made, equating to over 6 million individuals. Our blogs for UKICE have documented the evolution of the scheme and the issues that have arisen – the lack of national insurance numbers for EU citizens during Covid, the problems facing those described as ‘NRPF’ (no recourse to public funds), the negative consequences of accessing unregulated advice from so-called ‘advice sharks’. This blog takes a longer-term view, looking at the four main issues facing those currently navigating the EUSS.
Firstly, those who have failed to make an EUSS application, and need help making a late application. No such large-scale immigration application scheme has ever been introduced before in the UK. Even smaller schemes have never had a 100% application rate. While the EUSS, in terms of numbers of applications, has been a great success, even a 1% non-application rate means that about 80,000 applicants still need to apply. In the nearly four years since the June 2021 deadline, there have in fact been almost a 250,000 PS grants following a late application. This gives an idea of the magnitude of the problem. So a late application route must remain open, especially for older/ longer term residents who may still be unaware of EUSS or believe EUSS is not relevant to them because they have lived in the UK for decades, just as was the case with those affected by the Windrush scandal.
Applicants will also need help to submit a late application, particularly as the ‘reasonable grounds’ for accepting a late application have become more strict since August 2023. However, there is limited funding for this type of immigration work. Most late applications will require specialised advice. The East of England, where our research is based, is a recognised immigration advice/advisor desert. The Home Office has been funding some organisations to provide EUSS support, including GYROS in Great Yarmouth, the charity we have been working with, but this funding is diminishing and time limited.
Secondly, making the application is not enough; the status needs to be accessible and maintained. Consider the cases of children whose application was made by a parent, but the parent has since died, the child has become estranged from them, or whose log in details (phone number, email, password etc.) have changed and the parent can no longer access the application. This child then needs help to recover their application and, crucially, their status, without which they will have no right to rent or to work. Given that SS is a lifelong status, an account recovery team will always be needed to help those excluded from access to their own status, particularly for children where the risk is more acute, and the elderly who may not be able to manage the technology (the EUSS is an online-only status).
Thirdly, following the IMA judgment where the High Court ruled that it was unlawful for those with PS to lose their rights if they failed to apply for SS after five years, the Home Office has been trying different ways of putting matters right. These include introducing a 5-year extension for PS holders, as well as using technology (e.g. HMRC records) to identify those who could be automatically upgraded to SS. However, our research highlights difficulties for, for example, women not in work or caring for children in providing the evidence to move from PS to SS. They do not have the paper trail to prove they have been here, but they are here. So, now they may rely on the five-year extension for continued residence, but the problem is simply kicked down the road. What happens then?
Others, due to lack of knowledge about the absences rule (individuals with PS can be absent no more than 6 months out of 12), may unknowingly fall out of eligibility for SS and simply have their PS leave extended without realising their absences have (already) had an impact on their right to SS. The 5-year extension is causing confusion in other ways too- with some believing that an extended status means the Home Office has disregarded any previous absences and the clock on their EUPS starts again.
Finally, the EUSS needs to be managed and kept up to date. Individuals need to be able to generate a digital share code to prove their right to rent and work. Following the introduction of Universal Credit (UC), GRYOS’ busiest enquiry under welfare benefits is still the need for help with the digital interface i.e. the online journal. It is likely to be the same with EUSS. Some people will need help to manage their digital status for the rest of their lives.
The success in terms of numbers of applications to EUSS masks the reality that for more vulnerable EU citizens, there are still long-term risks in obtaining and maintaining EUSS status. The paucity of free, accredited advice means it is often difficult to get the necessary help, pushing vulnerable people into the arms of advice sharks. With late and repeat applications under the EUSS still running at an average of 56,000 per month, now almost 4 years after the EUSS deadline, meeting that need is increasingly challenging.
By Catherine Barnard, Senior Fellow, UK in a Changing Europe & Professor of EU Law and Employment Law, University of Cambridge and Fiona Costello, Research Associate, University of Cambridge
For more details of the work funded under this project, see Bristol University Press | Low-Paid EU Migrant Workers – The House, The Street, The Town, By Catherine Barnard, Fiona Costello and Sarah Fraser Butlin: