‘Deserving’ settlement in post-Brexit Britain: challenges posed by the settled status scheme

It's striking that the difference between the proof of continuous residence under the settlement scheme and the EU understanding of “lawful status” has not been more widely debated.  

Gabriella Alberti Roxana Barbulescu
19 December 2018

The 3million movement in action. Facebook. Fair use.

On the morning on which the results of the European Union referendum were announced, Europeans in the UK woke up to a new Britain: the country will ‘take back control’ by leaving the EU and shutting down the freedom of movement of people. It soon became clear that controls would not only be put in place for Europeans who arrived after Brexit but also those already in the country would need to apply for a new discretionary immigration status in order to win the right to remain in the UK and carry on with their lives. 

Less than three months away from exiting the European Union and in anticipation of the Home Office opening registration for the settled status scheme, we examine this new type of residence and its consequences for European citizens in the UK.

The new immigration status 

Settled status is a residence scheme for European citizens in Britain. All European nationals as well as their non-EU family members will need to apply for settled and pre-settled status if they want to continue lawful residence in UK after the transition period expires. When Britain exits the European Union on March 29, 2019, there will be a transition period  – from March 30, 2019 to December 31, 2020 – in which European citizens can still use their full freedom of movement rights as before. They stand to lose many others rights as well, including the right to non-discriminationbased on nationality and voting rights

To gain settled status, one will need to apply electronically from a computer or through an app specially developed for this operation. The application has three steps:

1) Verifying the identity of the person making the application. If the application is made from a smartphone or a tablet via the app then the identity check can be done immediately by scanning the electronic passport (for those who have one) and uploading a picture. If the application is done from a computer and one does not have an electronic passport then the identity document will need to be mailed (by post) to the Home Office.

2) Demonstrating continuous residence. According to the Home Office definition, continuous residence is “5 years in a row you’ve been in the UK for at least 6 months in any 12 month period” (exceptional circumstances when the 6 months rule does not apply include childbirth, serious illnesses, military service). There are a multitude of documents accepted by Home office to show that one has been a resident in the UK (see HO guidance on the matter). The online application has built-in capacity to match National Insurance Numbers (NINO) against HMRC records in real time. 

3)  Check of any criminal records. Each applicant will need to pay a fee of £65 (with a card) before submitting the application. Parents or appointed guardians will need to make separate applications for each child and pay an additional fee of £32,5 per child. In terms of outcomes, only three are possible: (i) settled status is granted for individuals who demonstrate their residence for 5 years prior to making the application; (ii) pre-settled status is granted, this is an intermediate status for individuals who have accumulated less than 5 years of continuous residence at the time of making the application and (iii) the application is refused. Once Home Office decides on the application, a notification is sent to the email of the individual with a link to their electronic settled status. 

What does the first Home Office 'pilot' tell us?

The application for settlement status was tested in a pilot over the summer of 2018 in a number of selected universities and NHS trusts in the North West, with 1000 participants.The second phase of the scheme starts in November 2018, for which only certain categories of European citizens are eligible: employees of universities, employees of NHS trusts and social carers. 

Family members of these employees will not qualify yet for the scheme and European citizens with dependents are being advised to wait, as the software of the pilot does not allow for linked applications. Five months later and one day after Brexit Day, on March 30, 2019, all European citizens and their non-EU family members in UK become eligible for Settled Status. 

The progressive roll out of the scheme is controversial because it effectively creates privileged access to certain occupational categories – academics, doctors, nurses and social carers – demarcating in this way a group of ‘wanted’ and ‘deserving’ European citizens. However, not even this privileged group, can apply for their spouses, children and other dependents or parentsuntil March 30, 2019. All European citizens, HO stresses, have the duty to apply for Settled Status. The scheme is only open until June 30, 2021: after this date, those who will not register for settled status or will be have it refused, will presumably be subject to immigration control under UK immigration law.

The Home Office paints the pilot phaseof the settled scheme as a success that has reassured the European community. ‘No application was refused’ and ‘all participants received the expected outcome’ it notes in its recent report. The application is quick, taking no more than an hour, and decisions were handled quickly within the first 10 days from submission. However, the pilot has been tested with model candidates, and workers in the public sector with full and up to date employment records. Their family members or young children did not participate in the scheme. 

Even so, the report carefully notes that only 64% of the applicants received settled status while over a third were granted only pre-settled status. These individuals will need to continue to evidence their situation in the UK before they acquire 5 years of residence. Since the pilot was conducted with such a small group of people (a thousand out of 3.5 million who will need this status) there are serious concerns about the capacity of the Home Office to deal with this volume in a timely and orderly manner. 

A participant in the pilot who wished to remain anonymous said three months later he has not received any decision on his case as the application is lost and that he was asked to reapply. I have been working in the UK since 2009 and am married to a Brit. The Home Office confirmed that their records showed I had applied, though all I was told was ‘that the system is being tested and glitches are possible.’ It is important to note that the final report of the HO did not mention any glitches such as lost applications, whilst more glitches in relation to passport recognition have been reportedrecently by applicants in the second pilot. 

The application for settled status speaks to the vulnerability and uncertainty that is being shared by over three million people in the UK. ‘To some degree, we were already used to the emotional limbo that Brexit has put our lives in. But the registration process has amplified the worry and feeling of powerlessness and voicelessness.’

Who, what and where will settled status fail? 

There are different requirements for individuals to gain settled and pre-settled status as compared to the previous permanent residence for EU citizens. The 38/2004 Directive indeed establishes the full right to freedom of movement on the basis of EU citizenship only for the first 3 months of their stay (during which however they also have no right to social assistance).

EU citizens’ right to lawful residence for longer periods (and thereby to exercise their free movement rights into any member state other than their own) is indeed conditional upon them demonstrating their status as workers, jobseekers, students, a ‘financially self-sufficient person’ and or a family member of these. According to the ‘Citizens Directive’, EU migrants have a right to reside in other member states if they work or if they are out of work but have sufficient resources not to become an “unreasonable burden on social assistance”, and if covered by sickness insurance.  

The notion of “habitual residence” (different from the UK newly proposed one of continuous residence) is not defined under EU law, but national case law over the years has established under which circumstances someone is habitually resident, whereby length and continuity of residence and family links are usually taken into account to ascertain where a citizen’s “centre of interest” lies. 

In this regard the UK has demonstrated a stricter approach than other EU member states, especially in the area of non-contributory benefits, since the system requires that, beside the “habitual residence test” migrants must demonstrate that they have a ‘right to reside.” Under the new system, and differently from the notion of lawful residence under EU law where a kind of link with employment and economic self- sufficiency remain, UK requirements to obtain settled status appears to consist only in proof of continuous presence in the territory of the UK, apparently de-linked from work situation. For EU applicants to either settled or pre-settled status, it therefore becomes a question of evidencing physical and continuous presence in the UK, independent from economic self-sufficiency, employment, the necessity to hold health insurance or proof of not having been a ‘burden’. 

This is where we see an element of ambiguity because the kind of evidence that is listed on the Government website rather suggests that a link with the labour market is still required: national insurance number (NINO), P60 or P45; payslips, bank statements, utility bills, annual business accounts, employers contracts or letters confirming employment, letters invoices or certificates form by accredited educational organisations, passport stamps confirming entry at the UK border, tenancy agreements, airlines or train tickets.  

As employment remains the easiest and fastest way to demonstrate ‘continuous residence’ in the UK there is still much confusion about whether workers will have to prove continuous employment (problems with illegal/undocumented working, ancillary, cash-in hand, zero hours contracts type of work). This shows that the government is still failing to provide effective communication about settled status for those with precarious histories. We find it striking that the difference between the proof of continuous residence under the settlement scheme and the EU understanding of “lawful status” has not been more widely advertised in the media and public discourse.  

In such a turbulent political climate, where hundreds of thousands including British citizens have demonstrated for a People’s Vote on the deal achieved by the PM, and while we are still waiting for (a very unpredictable) outcome by the Parliament, EU nationals may want to take the time to think more inventively about how people without continuous employment and in vulnerable situations can produce evidence to obtain settled status. 

Pieces of evidence listed by the HO during a local meeting organised with local authorities are for instance: medical appointment letters or letters from schools demonstrating that migrant parents have attended school-family meetings consistently across a period of time. Such helpful examples are still currently missing from the official HO website and it should be the ongoing work of communities and their reps to demand more clarity from the government about what would constitute ‘sufficient evidence’. By contrast, in a recent guideline documentthe HO has specified that personal documents such as personal letter birthday cards would not attest presence, despite the fact that such documents are accepted by judges in immigration courts.

Another key takeaway from meetings with the HO is regarding family re-union rights for ascending and descending relatives(including elderly parents and adult children). European citizens who obtain settled status will be in a position to call on their family members to join them in UK after July 2021. One example that was given is that of a French national who comes to study in UK, and finds work. His parents in 10 years’ time decide to retire to the UK to be close to their daughter. In this case the French national will be able to bring their parents over based on the rights emerging from settled status. But what will happen to those whose relatives have non-EU nationality? And what will happen in the event of a ‘no deal’ to this family re-union right as well as the right to return to the EU country of origin with the non-EU relative or carer? All these issues are still worryingly uncertain (see the EU rights clinic blog).

Vulnerable communities will find it particularly difficult to secure settled status. In the briefing session with the HO attended by the authors, there was a critical intervention from a social worker who raised the example of a vulnerable woman from eastern Europe who has been out of work and was abused by her husband, on whom she is economically dependent. The front desk worker admitted that she had no alternative but to advise this migrant woman to go back to her country, leaving her children with the abusive father, as she was unable to produce any evidence. We report this example as an obviously extreme scenario to show clearly how already marginalised individuals can be failed by the system, their (family) life and the lives of their children potentially destroyed. This case also indicates lack of training for front desk social workers, and the many problems this will create in the future, with the worst consequences for vulnerable migrants and women locked in abusive relationships. 

Vulnerable communities  

The concern with vulnerable communities and their access to settled status is two-fold as it involves both procedural and substantial issues:

1) At the point of access, people with little or no digital literacy will be more likely to not apply correctly or may fall prey to wrong-doers who charge extra for this service. Similarly, the cost of the application will be difficult to cover for disadvantaged people and large families; 

2) Many Europeans especially from the new member states in the EU would have fragmented employment histories, having worked cash-in-hand and or through self-employment and they lived in shared accommodation in properties that include sublet properties in the private market. It is likely that those with stronger bargaining power (according to their sector and contract of employment) will also be in a better position to obtain their employers’ cover for expenses (as is happening in some universities), but what about those in informal employment/exploitative relations and already highly dependent on their employers?

3)  Furthermore, there is no clarity as to what will happen with children in care and foster children, their rights and those of their (biological) parents, as they are not part of the calculation in the current format of settled status.  

4) Another great unknown is regarding the conditions under which settled status can be lost. These continue to be elusive with certainty only when it comes to terrorism offences leading to loss of settled status. These conditions must be clarified before settled status is issued, so people are aware of them.

With regard to point (ii) an interesting question has emerged in relation to the opportunity that “others” may apply on your behalf (indeed some employers have the IDs and documents of their workers). As the Home Office said during the meeting with the local authority mentioned above: “we cannot take the finger prints of those who submitted the application”. 

A member of the audience raised the point that some employers may decide to apply for you without your consent. Also, some recruitment agencies may do the same if they want to keep workers on their books. By letting employers and agencies apply on the workers’ behalf, employment dependency can put the worker and his family in a situation of further uncertainty/vulnerability. 

This is yet another example of how immigration controls and the process of “regularisation” may once again ‘filter’ differently more or less desirable migrants, and entrench dependencies in employment relations.

Online status only

A core problem of settled status continues to be having only an electronic status. Border UK officers, landlords and employers will be able to check ‘immigration’ status by verifying it online. Hostile environment policy has already introduced additional duties for employers, landlords, educational institutions to conduct independent checks of immigration status. The hostile environment not only amplified the number of border guards but it also extended immigration areas to include new actors particularly in the private sector. The Windrush affairwas a direct consequence of such a hostile environment policy and its racist application. 

Since an electronic immigration status is unique and has no replica anywhere in the world, there are many questions as to how an electronic immigration status will perform in real life situations: 

1)  How well does settled status protect the rights it provides to its bearer and family members? Settled status is not solely a residence permit, it is the very source of many rights for European citizens, including those of family reunion after Exit day; 

2) How will private landlords, NHS staff, Border UK officers respond to the new status? What do we know about how settled status will be incorporated into hiring procedures, for example? Will there be guidance to train people how to verify online electronic status? 

Only testing registration to settled status is not sufficient. The comments from the Migration ministerto the effect that it is up to employers to check the right of work of EU nationals before the transition period ends has been far from helpful. HO should test how settled status works in practice. Just imagine if, when the NHS was set up, we had only monitored registration in the National Service and not how to protect the good health of the individual, and how this contributes to public health. 

Finally, as the UK leaves the European Union, European citizens will enter British immigration laws becoming what is known as ‘subject to immigration control’. In a country with a proud tradition of rejecting state issued ID documents and where identity can be proved with cards and driver licences for EU and non-EU citizens alike, they would now need to indicate their permits and settled status number to confirm identity. This is a dangerous conflation of identity and immigration check and it institutes a differentiated regime for British nationals from non-citizen residents.  

Conclusions: those who ‘deserve’ settlement and (im)mobility

To trickle down information on EU nationals’ regularisation under Brexit from the national to the local level and to avoid EU migrants becoming de facto illegalised, is clearly a challenging task. The ongoing anxiety and uncertainty attached to a ‘no deal’ scenario for both UK nationals in the EU and EU people in the UK, goes in the opposite direction from one encouraging applications. Communities and academics can play an important role in ensuring that the right information reaches everyone, especially those most isolated, to voice issues and concerns from the bottom up, and create the right support network that will protect those who fall through the cracks.

Overall, we are witnessing the ‘hostile environment’ creeping into the new settlement scheme process. Despite reassurances that the settlement scheme is more flexible than the permanent residence one, and the rhetoric that the online application is designed to grant status by default, it still seems that it will be harder for precarious migrants with less-linear pathways to obtain settled or pre-settled status. If detailed guidance on evidence is not provided, precisely those who are more vulnerable risk providing their details to the government only to then see their application rejected.

Attempting a more optimistic stance in the midst of never ending frustrating limbo, there may be a chance to reverse the rhetoric of the “contributing or deserving migrants” whereby the proof of having used social services and the NHS can be twisted and used strategically to support the case for settled status. 

But can it be, really? Anecdotal evidence rather suggests that migrants without a clear 5 year track, are being advised to sign on as jobseekers and/or of not leaving the country to avoid losing continuity of residence. Or else to postpone visits to their home countries until they have obtained settled status, leading to the old paradox that restrictions to mobility make people actually less keen to move back to their countries. 

The likely outcome is a more divided and anxious migrant population, precarised and immobilised by a system over which they had no chance to be consulted, as with the decision in the first place to leave the EU.

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