By the deadline of 30 June 2021, over 6m in-time applications had been made to the EU Settlement Scheme (EUSS) by EEA citizens and their family members looking to secure their status in the UK following Brexit.1EU Settlement Scheme statistics, Home Office, 30 May 2019; last updated 12 August 2021.
Of those 6m applications, more than 500,000 have not yet been decided. Many of the outstanding applications are likely to be more complex and therefore take longer than average to process. Waits of several months have become increasingly common.
In addition, many other eligible people are likely to have missed the deadline, either because they were unaware of the need to apply or because they lack the capacity to do so. They will have the opportunity to submit a late application if they have ‘reasonable grounds’ for missing the deadline. The Home Office has indicated that, at least in the first instance, it will take a generous approach to late applications and will be giving applicants ‘the benefit of [the] doubt’.2EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members, version 13.0, 20 July 2021, page 32.
Nonetheless, late applications will only add to the already significant backlog.
Left in limbo
The result of all this is that many people are now in a form of limbo: eligible for leave to remain in the UK but currently without any formal immigration status. Those who submitted an in-time application should be able to rely on their certificate of application to prove their right to live and work in the UK until a decision is made.3EU Settlement Scheme: information for EU Settlement Scheme applicants (accessible version), UK Visas and Immigration, last updated 16 July 2021.
In addition, the Home Office recently announced that it will also protect the rights of those who have submitted a late application to the EUSS until they receive a decision.4‘Temporary protection for more applicants to the Settlement Scheme’, Home Office news story, 6 August 2021.
This commitment brings the domestic legal position into line with the requirements of article 18(3) of the Withdrawal Agreement between the UK and EU.
Despite this, there are many reports of certificates of application not being issued promptly by the Home Office, or simply being rejected by the employers and landlords to whom the Home Office has delegated responsibility for enforcing its ‘hostile environment’ policies. One example of this is a Spanish woman who was reported to have been sacked from her job despite having lived in the UK for 44 years and having made an in-time application to the EUSS.5Amelia Gentleman, ‘Spanish woman in UK for 44 years sacked over post-Brexit rules’, Guardian, 19 July 2021.
Those are yet to make an application have even less protection. Although the Home Office has committed to signpost potentially eligible people to the EUSS before taking enforcement action against them,6EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members, pages 34–35.
there is no obligation on employers or landlords to do the same. In any event, many eligible individuals who have not applied to the EUSS may lack the physical or mental capacity to do so, and receiving a notification from the Home Office will therefore be of little assistance. As a result, many people will be unable to work, rent or open a bank account, and will be at risk of losing access to their benefits and the NHS despite the fact that they are eligible for status under the EUSS.
Even if you are granted status under the EUSS, that is not the end of the story. EEA citizens receive no physical proof of the status they are granted. Instead, they are required to rely on a new ‘digital-only’ system whenever they need to prove their rights, such as to a prospective employer or landlord. This will render migrants who do not have access to or cannot use a computer essentially undocumented for many purposes, and even digital natives will be subject to the fallibilities of the technology.
Earlier this year, PLP acted for the campaigning organisation the3million
in a proposed judicial review of the digital-only-status policy, arguing that the failure to provide physical proof of immigration status is discriminatory against three cohorts who are disproportionately digitally excluded: older people; disabled people; and people in the Roma community. The High Court refused permission at a hearing on 5 May 2021.7R (the3million) v Secretary of State for the Home Department  EWHC 1159 (Admin).
The principal reason was that the judge considered that it was not possible to know the full impact of the digital-only system until after it had come into full operation on 1 July 2021, the end of the ‘grace period’. Although we presented the court with statistical evidence showing the high levels of digital exclusion in the relevant protected groups, the judge held that there was not sufficient evidence at that stage to show that the digital-only system would necessarily have a discriminatory impact.
Nonetheless, the judgment leaves open the possibility of fresh claims in the future if the adverse impact that we predicted does materialise. We intend to monitor closely the impact of the digital-only system and the effectiveness of the government’s promised mitigating measures, and will consider the possibility of further litigation if appropriate.
PLP is continuing its work to ensure fairness for those most affected by the Brexit process through its EUSS Specialist Support Hub
. We would be interested to hear from advisers working with individuals who are facing difficulties because of any of the issues discussed in this article. We also offer free-of-charge second-tier advice on complex EUSS cases to front-line advisers who work with vulnerable migrants. To get in touch with us, please email our dedicated EUSS enquiries address: firstname.lastname@example.org