Countdown to Brexit: 30 days – Home Office told to be more proactive and flexible towards EU citizens that have been living and working in the UK

Last week we looked at the status of UK pensioners that have taken up residency in other EU countries.  Today, on the day that Spain has announced that it will be raising the bar for UK citizens to remain in Spain with full ‘resident’ status with immediate effect - the House of Lords EU Justice Sub-Committee has written to the Home Secretary, raising concerns about the ‘EU Settlement Scheme’ in the UK which - despite major issues - is now rolled out in the UK.  Coincidence?

Chair of the Sub-Committee, Baroness Kennedy, said:  "The Committee is troubled that the Home Office appears not to have learnt the lessons from the Windrush scandal - and is pushing ahead with the EU Settlement Scheme in its current form.  If I was in this situation, I would want to have physical proof – just like for a driving licence – for a sense of personal security in case of events such as computer failure."

Summary

The Committee's principal concerns are:

that publicity for the scheme has so far been inadequate and ill-judged; vulnerable and harder-to-reach people are at risk of not knowing that they need to apply for settled status, including some long-standing residents. 

the application process is not accessible to all, and there are potential barriers that could deter people from applying, for example the emphasis on online applications; whilst there is particular concern about those who lack confidence with IT systems, the process can be daunting for other applicants too.

having no physical proof of status will not only disadvantage those without access to online technology, but would leave all EU nationals in limbo in the event of a breakdown of the electronic system. 

there is no systematic scheme to move people from pre-settled status to settled status: Without prompts or a proper system, EU nationals with pre-settled status are at risk of not knowing they need to re-apply, undermining the Government’s aim in creating pre-settled status in the first place. 

Key points from the letter to Sajid Javid regarding EU Settlement Scheme

The EU Justice Sub-Committee has a long-standing interest in the subject of EU/EEA citizens’ rights, post-Brexit.  We first highlighted our concerns in this area in our report ‘Brexit: acquired rights’, in December 2016.  We recently met with representatives of embassies from EU/EEA countries and the European Commission, who are in regular contact with community groups and citizens.  We have encouraged them to keep us up-to-date with issues, about which we may write to you again in future.

We are writing because we still have several concerns about the EU Settlement Scheme (‘the Scheme’) which the Government is now in the process of rolling out.  We see several major risks in the Scheme as currently constituted that could lead to EU/EEA nationals missing out on their settlement rights and could plunge the UK’s immigration policy into another entirely avoidable scandal.

We would like to highlight four principal areas where we believe that more needs to be done:

awareness of the Scheme; assistance with applications; physical proof of status; and transfers from pre-settled to settled status.

A theme throughout these issues is whether the Government is doing enough to engage with vulnerable EU/EEA nationals resident in the UK (including the elderly, disabled, trafficked individuals and others), as well as those who are hard to reach and those who believe that their residency is secured simply by its long duration.

Our principal concerns:

A. Awareness of the Scheme: Good communication, beyond electronic engagement

We have concerns about the tone of the social media-based advertising adopted by the Home Office over the Christmas period.  To be frank, we agree with those who found the message…ill-judged and objectionable - it did not accord with your promises, made to us in June last year, that EU/EEA nationals in the UK would be made to feel welcome and wanted.

The initial imposition of a fee was not a welcoming signal – and the announcement of its abolition was widely appreciated.  It is imperative that the abolition of the fee is implemented immediately through the necessary legislation and that refunds are accelerated.

When the Home Office rolls out the Scheme for mass participation, it is essential that it uses not only the correct tone and message, but also the correct medium of communication.  It is clear from our engagement with officials from EU/EEA countries that it is felt that online advertising is not going to be a suitable way of engaging with vulnerable and harder-to-reach citizens.  It is, therefore, paramount that the Home Office commits to a wide-ranging campaign to reach out to all EU/EEA citizens living in the UK, including advertising in jobcentres, NHS facilities, universities and public transport networks, and via billboards, radio and television.

Without widespread and welcoming advertising, there is a risk that some EU/EEA nationals will not know that they need to apply - or will think that it is unreasonable to ask them to apply and will not know the consequences of failing to do so.

B. Assistance with applications

We remain concerned by the Home Office’s persistent emphasis on making applications online and providing evidence electronically.  Whilst these approaches are a welcome addition to the other routes that are available (by post, and in person at Home Office buildings) - the emphasis has worried potential applicants who lack access to the appropriate technology or who lack the necessary IT skills.

Concerns about the application process apply to many citizens - not just those who are vulnerable or lack access to IT systems.   We believe that the unprecedented nature of this Scheme - in which citizens are being required to register in order simply to continue living as they currently do - warrants a proactive approach by the Home Office.

We recommend that the Home Office provides accessible application centres for anyone who would like assistance with their application - including administrative advice about answering the questions and what type of evidence to select - and technical assistance with scanning passports or uploading other documentation.  These centres could be mobile, visiting key locations including large employers’ sites and rural areas that are not well served by public transport.

Without a widespread and accessible network to provide assistance with applications, EU/EEA nationals will face unnecessary barriers to registering their right to remain in the UK; the SRC will use more resources than necessary in resolving cases; completion of the Scheme will take longer than anticipated; and some applicants will fail to acquire the status that they warrant, through no fault of their own.

C. Physical proof of status

We understand that, under the current Scheme, individuals granted pre-settled status or settled status will not be provided with any official documentation to prove their status, but rather will receive an electronic code. Physical proof of status is provided in a number of analogous situations for third country nationals (which EU/EEA citizens will be in future) - such as permits for Indefinite Leave to Remain.

Hard copy documentation will be necessary for some people, particularly in circumstances where they are required to provide evidence of their immigration status to access services, employment and healthcare.

Without physical proof of status, EU/EEA nationals living in the UK could find it hard in some circumstances to access services; and in the worst case they could find it difficult to prove their status in a future dispute with the Home Office.  Given the clear parallels with lack of documents contributing to the Windrush scandal - and the fear that this causes for EU/EEA citizens - the Home Office must provide physical documentation.

D. Transfers from pre-settled status to settled status

There does not appear to be a systematic scheme to move people from ‘pre-settled’ status to ‘settled’ status.  The onus appears to be on the individual to provide an update whenever their details or circumstances change and to then re-apply for settled status when they can prove residence for a five-year period.

Our concern is that having obtained pre-settled status, individuals may not realise that they would then have to re-apply, potentially many years later.

We understand that all citizens who are granted pre-settled status will be treated the same, regardless of how many years of residency to that point they can prove: that is, they will all be given a five year “grace period” in which to reach five years’ worth of proof of residency, and they will be able to re-apply at any time once they think that they have accumulated the remaining evidence.

We would like a response to the four key areas of concerns within ten days - along with answers to the following more technical queries:

  1. Only 1% of those people who went through the PB2 trial were categorised as vulnerable – against estimates that 10-20% of the EU/EEA population in the UK so classified.   How will help be applied to such a large number of people who may have difficulties with some - or all - parts of the application process?

  2. We understand that there is some funding available for community groups to assist vulnerable applicants – but have heard complaints about how this works in practice - such that various community groups are not eligible to apply.  What are the requirements, how many applications have you received - and which organisations have actually been funded?

  3. We have been told about issues with inputting data.  For example the system does not accept telephone numbers that are longer than those registered in the UK.  How prevalent is this issue, and will it be resolved before the final Scheme is rolled out?  Or are applicants expected to have a UK-based telephone number, and if so why?

  4. We are aware of reports about issues with recording names - including the application form lacking space for multiple surnames and the system storing some names using a non-Latin alphabet.  Such issues could cause problems when comparing the records to other forms of identification.  How many such issues are you aware of, and will they all be resolved before the final Scheme is rolled out?

  5. We have been told that self-employed people who may need to provide several documents to cover the time period face limits on the number of documents they can upload.  If they seek to combine these (which requires a certain level of IT skills) they then face a limit on the size of uploaded files.  How prevalent is this issue, and will it be resolved before the final Scheme is rolled out?

  6. We have been told that the facial recognition system does not work reliably for children or those whose appearance has changed - for example by growing or shaving a beard.  How prevalent is this issue, and will it be resolved before the final Scheme is rolled out?

  7. We understand that applicants can only update their details electronically - for example if they need to change the phone number on which they can be contacted to discuss their application.  What is done to facilitate such updates for people who are not computer literate or who lack access to the relevant equipment?

  8. We can foresee people having difficulties with evidence for upgrading from pre-settled status to settled status - and that some of these issues could be avoided by providing reminders at key stages. For example, if someone accumulated five years’ of evidence but did not re-apply immediately and instead re-applied when prompted by advertisements at the end of the five year “grace period”, they might discover that some evidence had been lost in the interim.  Or they might only re-apply after having been absent from the UK for long enough to breach the definition of continuous residence, such that the previous five years’ of evidence would be negated.  What prompts will the Home Office provide to citizens to apply for settled status, including personalised prompts based on their particular circumstances?

  9. We remain concerned that two immigration schemes are operating in parallel.  We believe that there is the potential for some people to be removed on the grounds of non-exercise of Treaty Rights even after they have applied for settled status under the Scheme.  For what purposes does the Home Office currently plan to use data received under the EU Settlement Scheme - and what safeguards will be put in place to prevent additional uses in future?

  10. The magnitude of the issues that we have identified will depend upon the number of people affected, but there is no accurate data about the numbers of EU/EEA citizens in the UK.  What plans do the Home Office and the Office for National Statistics have for obtaining new and accurate estimates of the total number of EU/EEA citizens in the UK?  Given the large numbers of people who are likely to obtain settled status and hence be eligible to apply for UK citizenship, will the Home Office have sufficient resources to cope with a potential future upsurge in citizenship applications?

  11. We have heard of cases where data held by DWP is not interpreted in a manner that supports an application - in contrast to other examples where data held by HMRC is interpreted “generously” in support of an application.  What is being done to maximise the value of data held by HMRC and DWP for approving applications as opposed to rejecting them?

Baroness Kennedy of The Shaws

Chairman of EU Justice Sub-Committee

John ShuttleworthComment