EU Settlement Scheme: What lies ahead?

With the deadline fast approaching for EU citizens in the UK to apply for their right to remain, what is the story behind the headlines that warn of a ‘Windrush on steroids’?

The 30 June application deadline looms large for the EU Settlement Scheme (EUSS), a digital system which allows EU, other EEA and Swiss citizens residing in the UK by the end of the transition period at 11pm on 31 December 2020, and their family members, to obtain settled status or pre-settled status. 

It’s been grim reading with newspaper headlines predicting ‘Windrush on steroids’ with concerns about vulnerable groups at risk of losing their right to remain in the UK and forced into the hostile environment overnight. 

So, Regional Media Co-ordinator for the North East and EUSS lead for IMIX, Katie Bryson, has been investigating the story behind the headlines to see what we should be watching out for come 1 July … 

How many people have applied so far?

According to government figures, so far the total number of EUSS applications received up to the 30 April 2021 is 5.42 million.  

How many more people are yet to even apply?

Well, this is tricky because according to The Migration Observatory, ‘there were an estimated 3.7 million EU citizens living in the UK in 2019,’ which doesn’t quite match the 5.42m figure of those who have applied thus far. So, it remains to be seen how many EU citizens are actually living in the UK, because the word on the ground is that that there are people yet to apply. 

Why haven’t people applied?

There’s a lot of anecdotal evidence to suggest that some people mistakenly believe they don’t have to apply for the EUSS. Many people with permanent residency cards don’t know they need to apply to the EUSS to secure their rights. 

Charities who support the Roma community say many people aren’t aware of the EUSS in the first place, with a lack of information available in community languages, along with cases of people who are unable to read or write, and a lack of trust in the authorities cited as contributing factors. 

Long term citizens of the UK, including some who came to the country as babies, could also be set to miss out, not realising they must apply.   

Thea Slotover, Immigration Paralegal at the North East Law Centre told us: ‘Some people who need to apply still don’t know about the scheme or don’t think it’s relevant to them. 

I had a client who had been in the UK since 2016 approach us for help in late March after being told about the scheme by his stepdaughter’s school. It’s great that the school managed to reach him but seems like it was equally likely that he could have remained unaware for a few more months and then missed the deadline.’ 

While the Government says it will have a ‘flexible and pragmatic approach to considering late applications’, there are growing concerns about the vagueness around the practical consequences for EU citizens who fail to apply in time.  

Thea added: ‘The Home Office has said that late applications from people who have ‘reasonable grounds for failing to meet the deadline’ will be accepted. It has provided a non-exhaustive list of examples of what might count as ‘reasonable grounds’, such as that the applicant is a child in care, has physical/mental capacity care or support needs, or is living in an abusive situation.  

‘However, applicants won’t know before they make their application whether they are considered to meet the ‘reasonable grounds’ criteria, and we have no way of knowing what proportion of late applications the Home Office will decide do meet the ‘reasonable grounds’ criteria.’ 

Will the effects of not applying for the EUSS kick in straight away for people?

It is thought the crisis will start to be felt as people come into contact with the bureaucracy associated with standard ‘life admin’, like moving house, applying for a job, claiming benefit when their immigration status is checked.   

If they haven’t applied for the EUSS and don’t have ‘reasonable grounds’ that they haven’t done so,  it looks like they’ll be immediately plunged into the hostile environment with no access to state benefits or non-emergency healthcare.  It’s also still not clear whether EU citizens who miss the deadline but who continue to work in the UK will be committing a criminal offence either. 

What happens if people have applied before the deadline but are still waiting for an outcome?

Around 300,000 people are currently stuck in the EUSS application system, with their application still pending approval.  

Some people are having to wait a very long time for decisions on their applications and there might not be many legal experts still working on EUSS able to help them if they are refused or something goes wrong later on. 

Thea from the North East Law Centre said: ‘We have clients who have been waiting nearly six months for a decision. We are really worried that if we put in applications now which take the same amount of time (or longer) to be decided, if they are eventually refused, there might not be any support organisations still running EUSS projects who are able to help applicants challenge refusals (our funding is only until September, for example).  

‘The Home Office says decisions should take about 5 days but it can also take up to a month; however, there are various complicating factors they give as reasons why the decision could be likely to take ‘longer than a month’. But they don’t give any more detail about the expected timeframe. 

 ‘In the context of the hostile environment, not having a decision on an application could in practice affect someone’s ability to rent, find work, or claim benefits, even though it shouldn’t in law.  

Applicants who have met the deadline will have preserved their legal status even if they don’t get a decision before 30 June, so they should be able to continue to access their rights in the same way as they had done in the past. 

Unfortunately, we have already seen that our non-EU clients experience lots of difficulties trying to work while waiting for decisions on their applications as employers are often very scared of having to pay the fines the Home Office issues to companies that hire people without leave to remain in the UK and don’t understand that applicants can work while they wait for decisions on their applications.’

Why might people be refused?

The applications which take a long time to be decided are also those which are most likely to be refused. Thea told us: ‘For example, one of the reasons that the Home Office might take a long time to give a decision is because the applicant has a “relevant criminal record”, which could lead to an application being refused. It isn’t clear cut what level of criminal offending could lead the Home to refuse an application.  

‘Another reason the Home Office gives that it might take longer to get a decision is if the application is based on a relationship with a family member and the person applying has never made any other applications to the Home Office which rely on that relationship. It could be really hard for people to get enough proof for these kinds of applications, which could mean they are eventually refused. 

‘If the Home Office refuses their applications people can appeal the decisions, but again it is uncertain if anyone might be able to help them to do so.’ 

What about children in care?

Though much work is being done on this, there are still concerns that the status of many children under the care of local authorities are still not secure. 

The Home Office has just released data on applications from local authorities for children in care and care leavers to EUSS. They state that 3,660 ‘looked-after’ children and care leavers are eligible to apply to the EUSS, and that 67% had applied to the scheme as of 23 April 2021.  

The Covid effect

 There are major delays at a number of embassies and consulates for passport and ID document renewals, caused by the pandemic. These documents are required to apply to the EUSS. 

We heard from Migration Yorkshire, who told us: ‘We are being contacted by a lot of people having difficulties in ordering a paper application for their children who have no valid ID. They keep requesting the form from the Home Office via an online enquiry form, just to be told to input the same info again and they keep waiting for the form being sent for weeks.’ 

And again, the news from Roma community is there are children born during the pandemic who don’t have birth certificates and so their parents are unable to prove their relationship, which will leave them in a highly precarious position. 

Benefits in peril?

Communities Officer Paul Staines at Newcastle City Council has a generally positive story to tell at a local level, but says they’ve not really had much in the way of additional funding to cover the work involved, and he wonders how cash-strapped councils are coping.  

Paul added: ‘I think the story here might not necessarily be about care leavers as our Children’s Services have proactively worked through client lists and social workers trained. We’ve also engaged a lot with care home providers. It doesn’t mean, however, we don’t have our concerns, particularly around the Supreme Court case that will impact people with pre-settled status.’ 

Paul is referring to The Fratila case at the Court of Appeal which sees the government granted permission to appeal against the right of people with pre-settled status to claim means-tested benefits. 

 Worryingly, if the Government pursues this and is successful, that’s at least 2.2m people (who have been awarded so far with pre-settled status) potentially not eligible to claim benefits. That feels like a very frightening prospect, and just adds to the list of unknowns that will only become clearer in the months after the EUSS application deadline passes, and the effects start to be felt.