The UK government has long taken the position that EU citizen students and self-sufficient people who do not have Comprehensive Sickness Insurance are living in the UK unlawfully. The Home Office has now confirmed that people in this position will remain unlawfully resident in the post-Brexit “grace period” unless they successfully apply to the EU Settlement Scheme. The department has told the Immigration Law Practitioners’ Association (ILPA) that it has no plans to pull EU nationals out of possible illegality, despite passing regulations that could easily be tweaked to do the job.

Comprehensive Sickness Insurance (CSI) essentially means having private health insurance or a European Health Insurance Card from one’s home country. The European Commission recently began the first stages of legal action to force the UK to change its position on CSI. It is important to stress that CSI is not needed to apply for or retain immigration status under the Settlement Scheme — the issue is people who have not yet applied.

The grace period

Although the transition period easing the UK out of the European Union comes to an end on 31 December 2020, there will be a further six-month grace period in which EU citizens can still apply for pre-settled or settled status. During that period, those who haven’t yet applied will have their existing EU law right to reside carried over, to ensure they still have a legal basis for living in the UK.

That protection requires the person to have an EU law right to reside to carry over in the first place, though. Many EU citizens are, probably without knowing it, unlawfully resident already. Such people will not have any legal protection during the grace period either, although they can still apply to the EU Settlement Scheme to sort out their status until the end of the grace period on 30 June 2021.

Unlawful residence as an EU citizen

Why would a law-abiding EU national be resident here unlawfully? Nobody with an EU passport is crossing the Channel in a dinghy, after all. The answer lies in the gulf between the seamless exterior of EU free movement law — open borders, live wherever you like — and the hidden wiring. Free movement is not a free-for-all and there are certain conditions that people must meet for their residence in another EU country to be legal.

People who are working or self-employed don’t normally need to worry about the fine print, but it does get complicated for people who are out of work, studying or self-sufficient. Such people can find that they no longer meet the conditions needed to keep their residence legal. This situation is variously referred to as “not exercising Treaty rights”, “not being a qualified person” or “not satisfying the EEA Regulations”.

The most notorious practical example of where people turn out to lack legal status is if they are students or self-sufficient and lack Comprehensive Sickness Insurance. “Self-sufficient” would include, say, stay-at-home parents who aren’t working because their partner is the breadwinner. The number of people in this situation is unknown and probably unknowable, since it normally only comes to light when the state takes a close look at someone’s legal status: when they apply for benefits, for example, or for British citizenship.

The Home Office position

The regulations confirming the grace period for settled status applications do nothing for people who are unlawfully resident. They preserve the EU law rights only of people who have EU law rights to preserve.

On 2 October 2020, ILPA wrote to the Home Office raising concerns about this situation. It said that those affected “could… face difficulty in, e.g., accessing services such as healthcare, or employment, during the grace period, or during the time that any in-time application is decided, or appeal is pending”. The letter also pointed out that a situation where people are living their lives in breach of the law is not much of a “grace period”.

ILPA recommended that, instead of the grace period regulations protecting the legal status of those “lawfully resident”, they could refer to those “resident or present” in the UK.

The Home Office position is that nothing has changed. Replying to ILPA on 22 October, a senior official said:

An EEA or Swiss citizen or their family member who is resident in the UK at the end of the transition period but who does not have permanent residence and is not exercising Treaty rights – as a worker, self-employed person, self-sufficient person, student or family member – will still be able to apply to the [EU Settlement Scheme] by the deadline of 30 June 2021. They will not have residence rights under EEA free movement rules to be protected during the grace period, which is their current position, and they will not be able to start exercising free movement rights in the UK after free movement to the UK has ended at the end of the transition period. However, they will still be able and encouraged to secure the status they need under UK law to continue living in the UK beyond 30 June 2021 by obtaining status under the scheme.

The letter goes on to say that “it was never the Government’s intention” to do anything about unlawful residence beyond what it is required to by agreements with the EU.

Becoming lawfully resident

The Home Office, like God, helps those who help themselves. As the department’s letter points out, people unlawfully resident can remedy that situation fairly easily by applying to the EU Settlement Scheme. For that purposes of that scheme, Treaty rights and Comprehensive Sickness Insurance and all the rest of it are irrelevant; living in the UK is the main criterion. A successful Settlement Scheme application makes unlawful residence go away, in other words (although it will remain a problem for a naturalisation application for up to ten years).

The Home Office has also advised employers and landlords that they should continue to hire and house EU citizens who can show a passport or ID card, without making further enquiries as to their legal status, until 30 June 2021. That should limit the odds of any Windrush-like experiences for EU citizens in this position — although that relies on government advice being properly communicated, and complied with. And after 30 June, for those who miss the application deadline, all bets are off.

My thanks to Chris Benn for his comments on a draft of this article, and to ILPA and their members Jonathan Kingham and Simon Cox for first raising the issue.