The vast majority of EU, EEA, and Swiss citizens who were UK residents by the end of last year were able to apply to the EU Settlement Scheme by the 30 June 2021 deadline. Applying to the EU Settlement Scheme meant that an EU citizen could stay in the UK for the long term. During the build-up and aftermath of the UK leaving the EU in January 2020, around three million EU citizens were believed to have lived in the UK. Yet recent data has shown that is not the case – with around six million applications being submitted, including around 6 per cent being repeat applications.
In accordance with the withdrawal agreement, the UK was required to implement a straightforward, online system that would be 'minded to approve' rather than 'minded to refuse'. The EU Settlement Scheme has primarily been a relatively light touch application process.
Applications in limbo
Though the EU Settlement Scheme had some successes, there is also little doubt that many EU citizens have not and will not have a straightforward path to staying long-term in the UK. There are many EU citizens in the UK who, for a variety of reasons, had not applied to the EU Settlement Scheme before the June deadline.
There have been comparisons of the EU Settlement Scheme leading to the next Windrush scandal. There is certainly scope for some EU citizens to find their immigration status in a precarious UK position as a result of the EU Settlement Scheme. But given the breadth and depth of the Windrush scandal on so many lives, such comparisons are premature.
The Home Office does have guidance for late applications to the EU Settlement Scheme. As would be hoped, the guidance covers situations where the applicant is vulnerable or living in care and it also covers people who have some other “reasonable excuse” such as not being aware of the need to apply to the EU Settlement Scheme because they already had an existing immigration status under the previous EEA Regulations.
Prior to the withdrawal agreement, the Home Office was obliged to implement such flexible guidance for late applicants. It should though be noted that such flexibility will not last forever. There is other guidance for right to work purposes, such as where a UK employer establishes that a pre-existing EU citizen employee from before 30 June 2021 has not applied to the EU Settlement Scheme, they can consider continuing to employ that person should the EU Settlement Scheme application be submitted within 28 days.
That is a transitional measure in place until 31 December 2021. Whether that timeframe is indicative for late applications remains to be seen, but it could well be that from the start of next year, the guidance is updated to restrict the acceptable reasons for a late application.
Throughout the Brexit debate, there were differences in opinion on how EU citizens should be treated in terms of their right to continue to stay in the UK. Some political parties were of the view there should not be so much an 'application' as a 'registration'. While the vast majority of applicants to the EU Settlement Scheme have been successful, some will slip through the net and find themselves without legal status in the UK.
There are also different academic perspectives on EU citizens who have missed the deadline. Well-respected academic and professor of law Bernard Ryan argues that the underlying legal position as regards the status and rights of those who missed the deadline remains uncertain. He recommends that clarification should be sought from the Home Office on the legal interpretation of the phrase “requires leave” in respect of EU citizens. There could be an exemption for those who exercised free movement rights in the UK and who have not subsequently left the UK.
The need for humanity
The Home Office must now show humanity in dealing with late applications. Though the fallout from the EU Settlement Scheme will not be as bad as the Windrush scandal, there is plenty of scope for problems for EU citizens. The interpretation of what is a “reasonable excuse” must be interpreted liberally and remain so for the foreseeable future with plenty of warnings to EU citizens who have not yet submitted a late application. The recent Home Office announcement of a concept of temporary protection for EU citizens who have applied late is a welcome development.
We are already seeing some relatively harsh rules for EU citizens who have not yet applied to the EU Settlement Scheme. For example, where a late application is submitted to the EU Settlement Scheme and then the applicant travels outside the UK, on their way back in they may have a shock.
We have been told informally that in such a situation, especially where they are not using the electronic passport gates, the EU citizen may potentially have their passport retained and they will be given 'immigration bail' upon entry to the UK for a 28-day period. If their EU Settlement Scheme application is not completed within that time their bail should be extended. Likewise, EU citizens entering the UK who have not yet applied to the EU Settlement Scheme and believe they have a right to apply would be questioned extensively and may also be granted an immigration bail for the 28-day period to enable them to apply.
The Home Office has said publically in its guidance that where an individual is found to have not applied to the EU Settlement Scheme before the deadline, immigration enforcement will give them 28 days to apply. It also remains to be seen whether the Home Office and other government departments will actively contact some EU citizens, where for example their benefit records are matched to the EU Settlement Scheme database and it is established they have not applied yet.
Avoiding mistakes of the past
There is of course scope for some EU citizens to remain under the radar and fearful of submitting an application to the EU Settlement Scheme. Rather than repeat mistakes of the past, we would hope that the Home Office would offer some kind of amnesty to individuals so that they feel comfortable in coming into view and applying to the scheme.
The Home Office has previously made mistakes where it has contacted individuals out of the blue stating they have for example overstayed their visa and must apply immediately. Often such messages have been communicated incorrectly and people have been unnecessarily left in a stressful situation.
Such an outcome could also come if the government attempts to match records from other government departments to the EU Settlement Scheme database. The Home Office must avoid accusing people unnecessarily of not having applied to the EU Settlement Scheme.
It is for those reasons we would much favour an amnesty to avoid people going under the radar in the UK and living in uncertainty when in reality they may have the basis for an application to the EU Settlement Scheme.
Marcia Longdon is a partner and Tim Richards is a professional support lawyer at Kingsley Napley LLP....