Campaign group the3million, which lobbies for the rights of EU citizens in the UK after Brexit, has published a legal analysis of the settlement scheme those citizens will soon have to apply for. The group says that the government’s proposal, as set out in a statement of intent last month, is still wanting in various ways. These include legal certainty, the design of the scheme and how hard-to-reach groups will be encouraged to apply.
The document raises concerns about the use of the Immigration Rules to implement the scheme, as these can easily be changed. (As the Supreme Court explained in Hesham Ali (Iraq) v Secretary of State for the Home Department  UKSC 60, “the Rules are not law”.) It also argues that introducing the scheme initially via secondary legislation would breach section 9 of the EU (Withdrawal) Act 2018.
The3million is also “strongly opposed to a lack of a physical document evidencing settled status”. The Home Office, for its part, argues that having settled status confirmed digitally is “better than a card. It prevents people from both over-sharing and under-sharing data, it is kept fully up-to-date, and it is far harder to abuse and have fraudulent applications on”.
Its report has an interesting slant on the Home Office’s new-found commitment to caseworking that aims to help people succeed rather than fail with their application:
What course of redress would applicants be provided with if it turned out that the caseworker (or any part of the Home Office) had given incorrect legal or immigration advice? The SOI mentions… that it will work with applicants to help them avoid any errors or omissions, but does not explain what will happen if the Home Office makes errors.
The campaigners argue instead for the provision of free legal advice, although this seems very unlikely.
Overall, the3million says that less than 10% of its 150 outstanding questions about the Settlement Scheme have been answered by the statement of intent. The Home Office’s charm offensive is not, evidently, a blinding success just yet.