Fudging the fallout of the EUSS deadline: the chasm between law and practice profoundly undermines the rule of law
EU Rights and Brexit Hub and the3Million joint blog
As the EUSS deadline loomed, the EU Rights & Brexit Hub published a report calling for (and proposing) ‘urgent measures’to address problems with the EUSS, especially those stemming from sticking to a hard deadline – the 30th June 2021. Now we are past that, those problems have not miraculously vanished. Rather, they have been complicated by a scramble to mitigate the effects of bad law with contradictory extra-legal guidance.
This risks severely undermining the rule of law on a number of counts. Tom Bingham outlined 8 principles of the rule of law; a number of them are potentially engaged here (e.g. protecting fundamental human rights, and complying with international obligations), but for now we will focus on the first:
“(1) The law must be accessible and so far as possible intelligible, clear and predictable.”
Now, let’s look at five strategies employed by the government to avoid the many crises-in-waiting resulting from problematic law.
Strategy (1) Covert pragmatism: We’ll do as we do, not as we say
Those who made in time applications, but, possibly due to the substantial backlog at the Home Office, had not been awarded a status by the deadline, have, according to the law,
continuing rights so long as they can prove (i) that they made an application on time; (ii) that they were exercising a right to reside under the Immigration (European Economic Area) regulations 2016 on 31 December 2020; and (iii) that they are currently exercising a right to reside under those regulations, and will continue to do so until their application has been determined. In theory, (well, in law) anyone who cannot meet all three conditions is without a right of residence. This is an implausibly large administrative burden to place on decision-makers – pre-Brexit determining ‘just’ one right to reside at a single point was often an arduous, complicated process.
It is therefore perhaps not surprising that the government has shown little inclination to enforce these conditions; Baroness Stedman Scott announced in May that in-time applicants waiting for a decision who are also benefit claimants “will continue to receive benefits as long as they satisfy the entitlement conditions for that benefit”. Indeed, the Home Office has apparently adopted a completely different policy to that outlined in law – and neglected to tell the public. Instead (as reported by CJ McKinney on Free Movement), the Home Office responded to a Safeguarding User Group question by saying that “in practice all “in-time” applicants will be treated the same”. This suggests that, contrary to the legal provisions, once it is established that an application was made in time, the Home Office has no appetite for investigating whether applicants were exercising a right to reside on the 31 December 2020, or whether they are currently doing so.
Strategy (2) Deadline denialism: everything’s going to be fine
For later applicants, the divergence between underlying law and practice is even starker. The desire to avoid EU nationals who are eligible to apply for the EUSS, but didn’t manage to do so, being subjected to hostile environment rules that would penalise and even criminalise third parties such as landlords and employers, has not led to any change in those rules. Rather, a range of sources (of varying strength) have been used to convey a message of non-enforcement.
Legally, those who have not yet made an application to the EUSS scheme currently fall into a status gap. They can make a late application, provided they can show a reasonable ground for failing to meet the deadline, but this does not address the chasm between the deadline and the point at which a new status is awarded. During this period, they have no legal basis on which to assert a right of residence. This could jeopardise rights to work, rent, access benefits and healthcare.
Until we were close upon the deadline, the government’s response was one of informal suggestions that non-enforcement of the law provided the necessary wave of the magic wand; when pressed about duties to dismiss late applicants, the Home Secretary stated that the Home Office would "work with" employers, while the Prime Minister said he was sure that the law “would be extremely merciful”. However, the hostile environment laws are not renowned for their mercy. They penalise third parties such as landlords and employers. If an employer knows, or has reasonable cause to believe, that an employee does not have the right to work, and employs them anyway, they may be committing a criminal offence.
To add extra layers of confusion, the Withdrawal Agreement (Article 18) states that anyone with a pending application should be deemed to have all residence rights, and should not have to wait until status is awarded. The Agreement also requires incompatible domestic legislation to be disapplied (Article 4). Individuals can rely directly on provisions of the Agreement, which has been incorporated into UK law through the EU (Withdrawal Agreement) Act 2020.
Strategy (3) Calculated ignorance: See no evil, hear no evil
On the 18th June, the government issued new formal guidance on right to work and right to rent checks, and also on rights to access NHS treatment. The right to work guidance exhorts employers not to re-check anyone who had passed a right to work check in the past; the individual concerned will still have to deal with their own status, but this way the employer does not get dragged into it. This is an oddly explicit ‘see no evil, hear no evil’ approach to avoid damaging consequences.
Strategy (4) System contortion: Constructing elaborate workarounds
For those employers who, despite doing their best to hold up the veil of ignorance, discover their employees have not applied to the EUSS in time, the guidance outlines a new process for giving employees a new 28 day warning procedure (only in place for six months) – after which, without employee compliance, dismissal must follow.
The application, is not, however, the end of the process for employers, who must then obtain a Positive Verification Notice, and a copy of the Certificate of Application or the confirmation of application email or letter, and of the initial right to work check carried out before 30 June 2021. The PVN expires in six months, and before that time, the employer must do a follow up check to see whether EUSS status has been awarded. It is worth noting an added completely unnecessary and potentially catastrophic administrative hurdle; the3million have discovered that when people apply to ‘upgrade’ their status from pre-settled to settled, their profile on the system is converted from pre-settled status to Certificate of Application status, a much more time-restricted right, until the outcome of the settled status application. This is likely to cause considerable confusion among third parties who may assume this means the employee was late in applying to the EUSS at all, and/or are concerned about the possible short-term expiry of their status.
If it is still pending, then they must repeat the process within another six months. It is an involved, potentially complex 8 step procedure, with three different evidential routes (a hard copy Certificate of Application plus a PVN; a confirmation of application plus a PVN; or a digital Certificate of Application based on an in-time application acquired using the View and Prove procedure), all fraught with the possibility of employer error and administrative hurdles (many identified by the3million) – all to work around problematic legal provisions.
Strategy (5) Legal fudge: the law is whatever we want it to be
But what about that criminal offence? If we are, after all, dealing with employers who know their employee does not have a current right to work? The right-to-work guidance appears to introduce a sliding scale of compliance, and a concept of good faith which is fairly alien to English criminal law:
“It should be noted that the criminal offence of employing an illegal worker is generally reserved for the most serious cases of non-compliance with the Right to Work Scheme. It is not intended for employers who have employed EEA citizens in good faith having completed a right to work check in the prescribed manner and are acting in accordance with this guidance to support their employees to make an application to the EUSS.”
But this is not reflected in the law. Nor is it reflected in other guidance – there has been no change to the Home Office’s own guidance on ‘Illegal working operations’. The Immigration Enforcement guidance suggests that there will ‘usually’ be no need to refer a case to the civil penalty scheme where a 28 day notice for applying late to the EUSS is issued, but does not address detailed scenarios, and does not mention the criminal penalty. And finally, it is not at all clear that the CPS can or should enforce guidance several times removed from their practice – the CPS guidance (page 17) making no mention of this new sliding scale.
There is a similar gap in the law and purported practice on the matter of benefits; those who have missed the EUSS deadline are in law not entitled to benefits until their status is regularised; a DWP Advice for Decision Makers Memo (which takes precedence over the general Advice document) confirms that a late applicant “becomes an unlawful resident in the UK until [their] application is decided”. But the government has indicated in a press release that people will not be kicked off benefits automatically, and said in a select committee hearing that where they recognise someone has an inherently reasonable ground for a late application, they will signpost them to the EUSS. The Home Office further mentioned in a closed meeting a plan for an “extra-legislative concession” for late applicant benefit claimants – a phrase only made public by a participant’s tweet about it. The Department for Work and Pensions has since emailed revenues and benefits managers to suggest that claimants who did not apply to the EUSS before the deadline, may be supported “for a short period” through an “extra statutory payment”.
These assurances give rise to a huge number of substantive questions about EU nationals’ rights: what if the authorities cannot tell at a glance whether there was an “inherently reasonable ground” for missing the deadline? And what happens to benefits if there is a lengthy delay in receiving status? And how will the Home Office ensure consistency in DWP decision-making with so many disparate sources of ‘policy’? These questions are intertwined with the fundamental problem of creating profound gaps between law and (formal and informal) guidance.
Misrule of Non-Law: Making the law inaccessible, unintelligible, unclear and unpredictable
Instead of addressing the mischief – the gappy, unjust and unworkable laws and rules – the government has opted for semi-covert, ad hoc, fire-fighting; adopting policies of partial/selective non-enforcement, articulated in a variety of confusing, contradictory and messy channels. And this all severely contravenes the first principle of the rule of law.
The desire to mop up the mess stemming from significant shortcomings in legislation, without actually disturbing the culprit laws raises gargantuan rule of law problems. It makes the law:
Inaccessible: it is becoming impossible for people to understand their rights and obligations by looking at the law.
Unintelligible: it is often not clear when and which laws are to be side-stepped, (or in the case of the construction of a criminal offence, substantially amended), and the sources of authority are mingled and often weak.
Unclear: This approach gives rise to a messy, often imprecise construction of the law – it becomes a laborious and error-prone task trying to piece together the variety of ‘statements’ of law and policy. And guidance documents, especially brief memos, are insufficiently detailed to capture the many varied scenarios which could create clashes.
Unpredictable: It makes for an inherently unreliable, unstable system – these sources cannot confer protections or rights if someone relies upon them, and the guidance changes. It makes it impossible to know what the law in practice will be, and undermines trust in/respect for those legislative provisions which are actually enforced.
The lack of transparency is remarkable. In displacing the law with Home Office guidance, press releases, ministerial statements, discussions with specific user groups, and unofficial departmental chats (then reported in tweets), we are not far from governance by rumour. And this does enormous damage not only to the legal framework, but all those operating within it. It will confuse decision-makers, bombarded with contradictory law and guidance; it will put employers in the invidious position of risking getting into an unholy mess if they get things wrong, or of unlawfully discriminating should employing UK nationals seem a safer bet; and it will further disempower vulnerable EU nationals – those disproportionately at risk of having missed the deadline – the most.
Thanks also to Monique Hawkins at the3million for her very helpful comments and input on an earlier draft.