Tripwires and timebombs: unnecessary hazards in the plans for dealing with EUSS applications after the deadline
We are hurtling towards the deadline for applying to the EU Settled Status scheme, set up for EU nationals who were resident in the UK before the end of the Brexit transition period, to secure their right to stay. Time is short for addressing the imminent problems, pitfalls and risks posed by the cliff-edge, and by the proposals for dealing with late applications.
Tick, tock: the hard deadline
The first and most imminent timebomb is due to go off on the 30th June 2021. The UK government decided early on to make registration a constitutive part of the right to reside; that is, the award of the status is not a mere ‘declaratory’ badge acknowledging one’s right – the status is the right, and without it, by the deadline, you lose that right. Imagine if you did not renew your passport before it expired, and so lost all right to ever have that passport again. Except instead of ‘just’ losing your right to travel abroad, you lost your right to stay in your home, with your family and friends.
The universal rule of deadlines – as anyone who has ever worked in academia knows – is that people will miss them. The former Home Secretary, Sajid Javid, seemed in denial of this basic law when he asserted the aim of the scheme was that no one would be left behind. As it has become clearer that some will be, it has been confirmed that those who miss the deadline will become, overnight, unauthorised/illegal migrants, subject to the hostile environment and possible removal. From being lawful, in many cases long-term, and economically contributing EU citizens, to people who cannot lawfully work or rent, or even drive a car. The Withdrawal Agreement allows the UK to do this, but it seems this was at the UK’s insistence, while Michel Barnier, the EU’s lead negotiator now seems uneasy over that concession.
A hard deadline was not inevitable, or necessary. It is worth noting that thirteen EU Member States (including Germany) have decided that UK nationals who were resident before 31 December 2020 do not need to apply for a new status, and so have not set any deadline. Of the remainder, only six have set a deadline as early as 30 June 2021 (the earliest the Withdrawal Agreement permits). Two have gone for 30 September 2021, and six for 31 December 2021.
We have long been told that late applications to the UK’s EU Settled Status scheme will be possible where there are ‘good reasons’ for missing the deadline, but it was not until just before the Easter weekend 2021 – less than three months away from the deadline, that the Home Office issued any guidance on what reasons might be ‘good’ enough.
The late application lottery
The guidance is for caseworkers – we have yet to see any accessible guidance on late applications for potential applicants. It is broad and explicitly requires decision makers to be flexible and pragmatic, leaning towards an approach of ‘looking to grant status, rather than for reasons to refuse’. This is all very welcome and gives cause for hope that the cliff edge might not be so destructive as we feared.
However – a number of problems remain, making the system something of a lottery
This is just guidance. There has been no attempt to codify the commitments contained therein, or to create ‘hard’ rights for the vulnerable citizens affected.
This makes it highly susceptible to change. Indeed, the Home Office seems to anticipate pivoting to a not-so-generous stance in the possibly near future. Decision makers will give applicants the benefit of the doubt ‘for the time being’, and ‘Any change in approach will be reflected in a revision of this guidance’.
There will inevitably be different interpretations and applications of this guidance, given that so much is effectively left to decision-maker discretion, which Luke Piper of the3million notes creates greater scope for human error. The Home Office should be attempting to ensure consistency through training, case monitoring, outcome checking, and moderating.
This variation is inevitable not least because of the differences in approach taken elsewhere in the immigration rules to late applications. Immigration specialist Chris Desira has pointed out that the Home Office does not have the most generous track record when it comes to ‘good reasons’ – requiring extreme circumstances, like having been in a coma.
There is a list of example scenarios which would constitute a ‘good reason’ for a late application, and a potential catch-all category of ‘other compelling practical or compassionate reasons’. We have a number of observations about this guidance:
The punitive effect of a time-lag
The guidance states that (in general) the longer the lapse of time between the deadline and the application, the harder it will be to meet the good reason threshold. Indeed, most of the examples given actually feature applications made later in 2021. However, if this results in a shift of the default from looking to give rights, to looking for reasons to refuse, or a loss of the ‘benefit of the doubt’, this could be hugely problematic for vulnerable citizens who simply have not had cause to realise they are without status for some years.
There will be exceptions to this general rule – such as for children, who discover they need to apply years later ‘when they first apply to work or study in the UK’. But even they will face an uphill battle just from an evidential point of view, if they need to reach back to show they met the conditions at the end of 2020, and to demonstrate continuous residence since that point – all without having kept, or having had someone else take responsibility for keeping – any evidence during that course of time. This is why immigration specialist Colin Yeo has predicted that rather than facing an ‘apocalypse’ on deadline day, there will be a long, slow burn of ‘lives being quietly ruined’.
All of the examples featuring (former) children in the guidance involve people around the age of majority, typically making applications not long after the deadline (with the longest stated delay being three years). But some adults, who were children at the point of the deadline, may not reach the age of majority for well over a decade after the deadline. For some it may be years again before they realise the need to apply – if instead of engaging in formal work or higher education, they assume care-giving roles in the family/community, for instance, or work in the informal economy, or if they have or develop reduced mental or physical capacity, they may not encounter a need for EUSS status.
A selection of five tripwires in the guidance
(i) Suspicions of ‘sham’ victims
There are two mentions in the late application guidance of a need to consider ‘previous immigration history, particularly where there is evidence that the applicant has made a number of unsuccessful attempts to secure leave to remain in the UK on different grounds’. This is only for persons claiming to be victims of modern slavery, or in an abusive or controlling relationship or situation. It rather implies an assumption that victims of abuse are less likely than other applicants to have good grounds. Moreover, if they have previously tried and failed to regularise their status – and so became even more at the mercy of their abuser – they are deemed likely to be lying.
(ii) Children’s rights not so automatic as they seem
The suggestion of a more-or-less automatic opportunity for children to apply late is welcome, but perhaps misleading. Because if a late application is made while the applicants are still children, then a grant of settled or presettled status will not be of much use to them, if they are dependent upon primary carers who are not granted status under the EUSS and are not deemed to have a ‘good reason’ themselves for a late application.
(iii) Total lack of capacity not automatically a good reason
Where an applicant LACKS physical or mental capacity – not just having reduced capacity, but lack it entirely – that will ‘NORMALLY’ constitute reasonable grounds for a person to make a late application. Normally.
(iv) Having a baby is not disruptive enough
In a sign that the guidance may have been mostly written by men, pregnancy or maternity ‘may’ be a good reason for a late application ‘for example where a woman has a difficult child birth or where a new-born child is in need of medical treatment’. In other words, there needs to be some extra, unusual difficulty in order for pregnancy/maternity to even be considered a ‘good reason’. But ‘normal’ childbirth and healthy new-borns can be hugely disruptive for a significant period – especially for single parents.
(v) ‘Undocumented’ rights of permanent residence
The guidance recognises that some people will have been issued with a permanent residence document under the EEA Regulations and not realise that this is insufficient come the end of the grace period. But it is not necessary to have a certificate in order to have a right of permanent residence under the EEA Regs. Some will have permanent residence rights but no document. They are at risk of missing the deadline, not realising how much of a drastic misnomer permanent residence is about to become. Because it will mean nothing on 1 July 2021. Some will assume that, just as ‘Brexit means Brexit’, ‘permanent’ means ‘permanent’.
Not minding the gap
Even where someone has a solid, cast iron, good reason for missing the deadline – so might not even be considered in ‘breach’ of the rules – they nevertheless stand to lose their status and right of residence in the interim. This could be devastating, and the guidance makes no attempt to address the issue of status-gaps/chasms. Those affected could face a loss of access to public services, including benefits and housing, and see their rights to work and to rent disappear. Employers and landlords face something of a messy, grey area - if they know or have reason to suspect an employee or tenant has not applied to the EUSS by the deadline, but also know of a good reason why (or if they simply have not checked whether an application has been made) – will they be opening themselves up to criminal or civil liabilities if they decline to dismiss or evict them? The Home Secretary stated that the Home Office would ‘work with employers’ when giving evidence to the Home Affairs Select Committee in February this year, but there has been no amendment to the existing legal obligations.
So while, in due course, a good reason for a late application may be recognised, and an applicant’s status regularised, they may still have, in the interim, lost their job, home, or more. Further, the3million, in their thorough report to the IMA in February 2021, noted that 'lack of protection can have various serious consequences, most notably when it comes to accessing healthcare'.
Things are not clear-cut even for those who do apply before the deadline, but who haven’t had an EUSS decision by then. The 2020 regulations provide for a continued right to reside in that situation, IF the applicant was exercising a right to reside under the 2016 Regulations (typically being a worker, or had a right of permanent residence) ‘immediately before’ the end of transition. This creates stark differences in treatment between people who have applied in time, with some facing a total (temporary) loss of rights as a result of delays in the system – not applicant error.
Defusing the bomb: a different approach
We understand that the Home Office wishes to encourage EU nationals to regularise their stay as soon as possible, but this should not be on penalty of complete and irreversible loss of rights that may have been accrued over many years.
The attempt to create expansive and generous guidance is to be welcomed. But the multiple gaps and concerns it creates demonstrate the impossibility of trying to anticipate all possible permutations of late applications. The fact the system is essentially discretionary means there will be differences in approaches – some decision makers will treat the guidance as ‘nearly’ exhaustive; some will note the reliance upon examples where applications are only a few months late, and so on. Frictional injustice during the period of administrative transition is inevitable.
In spite of emphasising the need to reduce administrative burdens, the hard deadline in combination with the absence of any hard right of late application, makes for an unnecessarily cumbersome process. And it will only get more cumbersome, and destructive in the future, as applicants have to reach further and further back in time for evidence of ‘good reasons’. It would make more sense to simply recognise a right to make late applications. Where an applicant can demonstrate underlying eligibility for EUSS they should not lose their right to reside (and to work, to rent, etc). But where they cannot provide a ‘good reason’ for a late application, they could pay a late application fine to offset any administrative inconvenience. This would be a similar system to, for example, the late submission of tax returns, and would represent a proportionate penalty. A fixed sum penalty would avoid fines getting out of hand for the few applicants who may apply years late.
In the alternative, we simply recommend addressing the tripwires listed above.
In any case, the Home Office must, as a matter of urgency:
(a) Address the ‘status gap’ faced by people making late applications, providing for a temporary right to reside to those eligible to apply late to the EUSS, whether or not they have yet applied, until such a time as the final EUSS decision is produced. This would not only protect the EU nationals in question; it would also protect employers and landlords from civil and criminal penalties, so reducing the imperative to dismiss or evict EU nationals who are in fact eligible for EUSS, and who can demonstrate good reasons for applying after the deadline.
(b) Remove the extra conditions imposed on applicants who make in time applications, but whose application has not yet been determined by the deadline. They are arbitrary and risk pitching people who have complied with all the EUSS requirements over a legal cliff edge.
(c) Publish average waiting times, and give details on the number of applicants, at different points, have waited over three months, over six months, and over twelve months.
Ensuring consistency in decision-making:
At the very least, we suggest that the Home Office needs to train all decision makers working with late application requests, and monitor and moderate all late application decisions, to spot outliers and to ensure (some) consistency in approach – and publish the number and outcomes of late application requests. It is one thing to promise the ‘benefit of the doubt’ in guidance – it is another thing to actually give it.
These are emergency measures
The situation is urgent; we call upon the government to act quickly to mitigate the substantial risks currently posed to vulnerable EEA+ nationals.