Executive Summary
In 2016, the lead campaigners of ‘Vote Leave’ promised:
“there will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present.”
The reality was rather different, as EU citizens and their family members had to apply for a new immigration status through the EU Settlement Scheme (EUSS) if they wanted to stay in the UK, and unless they could already evidence 5 years of residence, they had to make at least two status applications to reach indefinite leave to remain. When the Home Secretary was questioned by the Home Affairs Select Committee in 2019 about why EU citizens were being made to apply for a new immigration status, the answer was:
“In a word, Windrush. […] through the EU Settlement Scheme, they will be able to receive a digital document or documentation that will guarantee their rights.”
When the EUSS was introduced by the Government in 2018, it was announced in parliament to be “simple”, “straightforward” and “user-friendly”. While it is true that, at least initially, the EUSS marked a departure from a Home Office culture of ‘looking to refuse’, and around 6 million people have been granted EUSS status, it is also indisputable that as time passed, many aspects of the scheme have grown unfathomably complex. An Upper Tribunal judge wrote in early 2023 about the immigration rules implementing the EUSS:
“Having spent many hours considering this part of the rules one finds that there is nothing natural or plain about the wording that might reveal its intended meaning”.
As well as becoming ever more complex and confusing, the rules have become stricter, less reasonable, and are failing a cohort who have now become undocumented, through no fault of their own, despite having lived in the UK for decades. For those who are lucky enough to get access to legal advice, appeals and judicial reviews have become the only solution – and the tribunal and court backlogs bear testimony to this.
Secondly, while the EUSS was designed to be the UK’s implementation of the Withdrawal Agreement, the previous Government stubbornly insisted that EUSS status does not equate to full rights under the Withdrawal Agreement. This is leading to yet more litigation, as decision makers at DWP and local authorities grapple with the question of how to establish Withdrawal Agreement rights.
Thirdly, the previous Government has rushed headlong towards a self-imposed deadline of 31 December 2024 to fully digitise the UK immigration system. The current implementation of digital immigration status is not fit for purpose, is causing enormous harm to vulnerable individuals, and is dramatically behind schedule in creating eVisas for another estimated 4 million people. There will be travel chaos for those trying to return home to the UK after December, unless the new Government steps up to mitigate the disastrous cliff-edge.
In this document, we present 10 decisive policies, none of which require primary legislation, which will go a long way to addressing some of the shortfalls and complexities of the EU Settlement Scheme.
The first set of policy asks centres around fully protecting the rights of those the Withdrawal Agreement was designed to protect:
1. Everyone with status under the EU Settlement Scheme (EUSS) must be considered to have Withdrawal Agreement (WA) rights
The EUSS is the UK’s implementation of the citizens’ rights part of the WA. Yet the previous Government considered that EUSS status does not equate to being a beneficiary of the WA or automatically demonstrating WA rights. This is the subject of significant litigation and a new Government will have to quickly decide whether it wants to defend the prior Government’s position.
2. Clear the persistent EUSS backlog
The EUSS backlog is persistent and growing - there are over 137,000 EUSS applications waiting for a decision, and over 20,000 of these have been waiting longer than a year. Over 60% of the EUSS workload is deciding applications from pre-settled status holders trying to gain the security of settled status. Many vulnerable citizens struggle to meet the raised evidentiary thresholds.
3. Give full Withdrawal Agreement rights to those waiting in the backlog
The WA provides that those who submit a valid EUSS application and are waiting for a decision should have the protection of all their WA rights. This is currently not the case.
4. Restore reasonableness to the ‘reasonable grounds’ policy regarding late applications to the EUSS
There are still many EU citizens and family members living in the UK who have not realised that they should have applied to the EUSS – simply because they have not encountered a life event that triggers awareness of the scheme, such as changing jobs or travelling and returning to the UK. A repeat of the Windrush scandal is underway, for this cohort of people whose late applications are rejected due to the prior Government’s unreasonable policy.
5. A late applicant to the EUSS must not suffer lasting punitive impact if granted status
A late applicant who is granted EUSS status, because the Home Office recognised that they had a reasonable ground for missing the deadline, can nevertheless be left encumbered with life-destroying debts to the NHS. This can even happen to children, whose parents did not know to make an application for them, or elderly people whose first awareness of the scheme is through a hospital admission.
6. Give victims of domestic abuse immediate settlement under the EUSS
People who suffer domestic abuse from their partner, who hold pre-settled EUSS status, are able to obtain access to public funds, but need to switch to an immigration status outside the EUSS. This removes their evidence of WA protection. Victims from abuse by other family members are excluded.
The second set of asks focuses on the problems created by the UK’s rushed digitalisation of immigration status:
7. Mitigate against the travel cliff-edge of expiration of all UK residence cards on 31 December 2024
The implementation of Electronic Travel Authorisation at exactly the same time as ending all physical proof of immigration status will create a disastrous cliff-edge on 31 December 2024.
8. Mitigate against the UK Hostile Environment cliff-edge of expiration of all UK residence cards on 31 December 2024
There are 4 million people who currently have residence cards that need to gain access to an eVisa by the end of the year or risk facing the full force of the hostile environment. The rollout is years behind schedule and the Home Office databases are suffering many technical errors.
9. Protect legacy ILR holders by ensuring continuing validity of their documents while providing option of BRP/eVisa without status review
Some of the UK’s oldest migrant population hold legacy (non-biometric) documentation. The digitalisation programme will curtail their rights to travel and return to the UK unless they go through an extremely onerous Home Office application, which is unjustifiable and potentially discriminatory.
10. Launch an inquiry into current digital status implementation alongside stakeholder consultation to explore alternatives
Lessons must be learnt from the EUSS, which introduced the online-only process to prove immigration status. Tens of thousands of people have suffered lost jobs and job opportunities, lost housing, refusal of a university place or funding, denied boarding back to the UK and more.
