- Background: the Withdrawal Agreement and Settlement Scheme
- Decision pending: the law
- Decision pending: brass tacks
- Missed the deadline: the law
- Missed the deadline: brass tacks
The Brexit vote, the triggering of Article 50, the failed May deal, the Johnson capitulation, the legal exit at the start of 2020 and the economic exit at the year’s end have all come and gone. On 30 June 2021 comes another milestone: the deadline for EU residents and their families to secure post-Brexit residence rights. Counterintuitively, people can still apply to the EU Settlement Scheme after that deadline, but from 1 July the free movement laws that have protected European residents from UK immigration control until now are effectively being switched off.
This briefing looks at what happens to people who are still awaiting a decision from the EU Settlement Scheme beyond 1 July, or who miss the deadline altogether. These are not hypothetical concerns. As of last week, the application backlog stood at around 400,000, and getting a decision can take months. The number of non-applicants is unknown and will never be known, because there is no register of those eligible to apply, but no similar scheme in human history has achieved a 100% sign-up rate. Even if we were to assume that, for every 100 people who have applied, just one eligible person has not, that would be over 50,000 people falling through the cracks.
In what follows, we are talking about citizens of European Economic Area countries, plus Switzerland, who were living in the UK before the date of Brexit (for these purposes, 31 December 2020). Anyone who has arrived since then and has no legal status — for example, if they came as a visitor and have overstayed — comes under the regular system of immigration enforcement.
Background: the Withdrawal Agreement and Settlement Scheme
The reason that EU citizens living here pre-Brexit get more lenient treatment than new arrivals is because of the Withdrawal Agreement. This is a deal to provide legal protection to people affected by the UK’s departure from the European Union and its system of free movement laws.
Obviously there is a moral imperative that people who availed of free movement would not be left high and dry by political shenanigans, and indeed the Vote Leave campaign promised:
… there will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present.
The EU Settlement Scheme does not deliver on this promise. Indefinite leave to remain is not granted automatically to those eligible; it requires an application, which can be refused.
But in other ways, the scheme is more generous than the pledge and the Withdrawal Agreement. It is open to people who were not necessarily “lawfully resident” in the strict sense of EU free movement laws, such as students without private health insurance. As we’ll see, the UK government’s protections for those who miss the deadline work in much the same way: they go beyond what is strictly required in law.
We’ll start by looking at the position of people who have lodged a Settlement Scheme application in time (i.e. on or before 30 June) but haven’t received a decision yet. We’ll then go on to look at people who apply after that deadline or not at all.
Decision pending: the law
Article 18(3) of the Withdrawal Agreement says:
Pending a final decision by the competent authorities on any application referred to in paragraph 1, and pending a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities, all rights provided for in this Part shall be deemed to apply to the applicant, including Article 21 on safeguards and right of appeal, subject to the conditions set out in Article 20(4).
Basically, people with a pending application or outstanding appeal keep their residence rights in the meantime.
This provision has been translated into UK law by the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (SI 2020 No. 1209). An explanatory memo accompanying the regulations summarises their effect:
For those EEA citizens who are lawfully resident in the UK by virtue of free movement law immediately before the end of the transition period, and who do not yet have status under the Scheme, and for their relevant family members, this instrument saves their existing residence rights in the UK.
On paper, neither the Withdrawal Agreement nor the regulations protect everyone entitled to apply to the EU Settlement Scheme. They only cover those whose presence in the UK was in full compliance with EU free movement law.
Long story short, that excludes certain categories of people such as students or self-sufficient people without Comprehensive Sickness Insurance. They might have been living in the UK without incident all along, but technically weren’t here completely legally. This situation is variously referred to by lawyers as “not exercising Treaty rights”, “not being a qualified person”, “not satisfying the EEA Regulations” or “not having a right to reside”, all of which come to pretty much the same thing.
Academic experts at UK in a Changing Europe highlighted this issue in a recent report:
There will also be people who made an application on time but have not received a decision by 30 June 2021. In those cases, if applicants cannot demonstrate they have a ‘right to reside’, they will lose their rights immediately, even if their application is valid.
I incautiously tweeted this bit of the report last week and it started to go viral before we thought better of it and deleted the tweet. That is because the reality in practice should be much less stark than the strict legal position.
Decision pending: brass tacks
The Home Office has no way of telling between those who were and were not exercising treaty rights, and no apparent interest in doing so. The system for protecting the position of those covered by the laws discussed above should therefore protect everyone who has applied by the deadline. The department has said:
As the EU [Settlement Scheme] does not verify exercise of Treaty rights, in practice all “in-time” applicants will be treated the same. This means an individual undergoing an eligibility check while the outcome of an application under the EUSS is pending, will be in the same position in respect of access to accommodation, work, benefits and services as they were before the [deadline]. Where needed, the Home Office will be able to confirm whether an application is pending.
Anyone who applies to the EU Settlement Scheme should get proof of having done so. That proof of application can be used as a sort of temporary residence permit by those who applied on time.
We can see how this will (or is supposed to) work in practice in various documents. There are of course no guarantees that things will work out smoothly, especially if people like employers and landlords are unaware of what they are supposed to do.
First up is the Employer’s guide to right to work checks. It has a section on “outstanding UK EU Settlement Scheme application made up to and including 30 June 2021”. That section says that the person should have proof of application in one form or another, whether a proper certificate of application or just an email confirmation. Employers can verify that with the Home Office — details of the process are in the guidance — and hire the person on the strength of their pending application.
This is for new hires after 30 June 2021. Existing employees do not need to be rechecked (see page 39).
As above. The wording in the guidance mirrors that for employment checks.
Right to rent checks apply in England only.
For existing benefits claimants with a pending application, government policy is simple:
Those who have made an application to the EU Settlement Scheme, but have yet to receive an immigration status before the deadline, will continue to receive benefits as long as they satisfy the entitlement conditions for that benefit.
It is more complicated for someone applying for benefits for the first time on the strength of a pending application. They would have to establish a right to reside, but that was always the case, so there is no real change.
On access to the NHS (in England), we have Guidance on implementing the overseas visitor charging regulations. It says:
Those who are awaiting the outcome of an application submitted on or before 30 June 2021 will remain entitled to free healthcare, subject to the ordinarily resident test, until that outcome is known.
Again, one assumes, showing proof of having applied on time should be enough if this arises in practice.
Missed the deadline: the law
We now turn to people who miss the deadline. The first thing to say is that they can still apply. The Withdrawal Agreement again:
where the deadline for submitting the application… is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and shall allow those persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline…
There is Home Office guidance on what counts as “reasonable grounds”. Chris Desira discusses it in this article: Late applications to the EU Settlement Scheme. For present purposes, it’s enough to know that you can still secure residence rights if you apply late.
But what is the legal status of someone who has missed the deadline? You would assume that such a person is in the UK unlawfully, unless and until they are granted status under the “reasonable grounds” rule.
Let’s take the hypothetical example of Christian, an Austrian citizen who moves to the UK in 2015. He doesn’t read or watch any news and has no idea that Brexit affects him, so doesn’t apply to the Settlement Scheme by the deadline.
Scenario 1: no late application
It is now 1 August 2021. Christian still hasn’t applied to the Settlement Scheme. He now has no lawful status in the UK. You would assume that he can be kicked out of the country. Section 10 of the Immigration and Asylum Act 1999 says:
A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave [permission] to enter or remain in the United Kingdom but does not have it.
In fact there is an argument that Christian is not actually breaking immigration laws. That is because UK immigration legislation is set up to penalise crossing the border without permission or remaining in the UK after that permission expires. Christian never needed permission because of EU free movement laws, so he does nothing wrong by simply staying put, in much in the same way that a baby born in the UK without British citizenship (which is quite common) is not in the country illegally.
While that might make an interesting court case some day, the UK government’s interpretation of the law is simpler: if you don’t have permission to be in the UK, you’re here illegally.
Scenario 2: late application pending
Let’s say Christian eventually realises that Brexit is a thing. On 1 September 2021, he applies to the EU Settlement Scheme, arguing that he had reasonable grounds for missing the deadline.
From this point on, he may actually have residence rights again. That is because of how Article 18(3) of the Withdrawal Agreement is worded: the protections for someone with a pending application seem to apply to any pending application, even a late one that relies on “reasonable grounds”. So arguably he should now be in the same position as those who applied before the deadline and have a pending application, who we covered in the first half of this article.
That’s our reading of the agreement anyway; that interpretation seems to be shared by the EU. The UK government doesn’t see it this way and there is nothing in the regulations to protect people with pending late applications. Under UK law, late applicants are no different to non-applicants. However, this is mitigated by various policy statements about what will happen in practice to people who miss the deadline. The operational approach is more lenient than the letter of domestic law.
Missed the deadline: brass tacks
The basic rule is that an EU citizen found by someone in authority to have missed the Settlement Scheme deadline will be given 28 days to apply late. We see this first of all in guidance on the fundamental question of kicking people out of the country:
From 1 July 2021, where a person without status under the EU Settlement Scheme is encountered by Immigration Enforcement (or referred to them, e.g. by a Local Authority), the officer will… provide the person with a written notice giving them an opportunity to make a valid application under Appendix EU, normally within 28 days of the date of the written notice.
The existence of this grace period was widely reported last week — the Home Office must have done a press release about it — but in fact it has been in the Settlement Scheme guidance (pdf) for months.
During the grace period, “no immigration enforcement action for being in the UK without leave will normally be taken”. The guidance is silent on what happens if the person doesn’t apply within 28 days (or however long the notice gives them). By default, normal immigration enforcement — detention centres and removal from the country — kicks in.
For new hires, the guidance says:
If an EEA citizen applies for a job with you after 30 June, but has not applied to the EUSS by the deadline and has no alternative immigration status in the UK, then they will not be able to pass a right to work check and should not be employed.
It adds that if the would-be employee “believe they are eligible for the EUSS, you could signpost them to make an application”. But it conspicuously does not say that someone with a pending late application can safely be hired. Someone in this position will be a labour market leper.
For existing employees, no rechecks are necessary. If an employer does become aware that an existing employee has missed the deadline, they can give them 28 days to apply rather than the sack. But:
If they do not make an application to the EUSS within 28 days, you must take steps to cease their employment in line with right to work legislation.
This 28-day grace period concession is also only temporary and expires on 31 December 2021. The implication is that any current worker found to lack status after that date will have to be fired rather than directed to make a late application.
Employers should bear in mind that they aren’t required to investigate the status of existing employees and only have to worry about it if the issue comes to their attention.
For prospective tenants after 1 July 2021, EU nationality is no longer enough in itself to pass landlord immigration checks and someone who could apply to the Settlement Scheme but missed the deadline will not be able to rent a home.
Existing tenants do not need to be checked. If the landlord is foolish enough to make enquiries or unfortunate enough to find out by chance, they do not need to evict the person but do need to:
make a report via GOV.UK to the Home Office in order to maintain your statutory excuse: https://eforms.homeoffice.gov.uk/outreach/lcs-reporting.ofml.
The guidance also tells landlords: “You should advise the individual they must make an application to the EUSS within 28 days in order to regularise their immigration status”. This does not seem to be the trigger for the concession the way it is for employers; rather, making a report is what protects landlords in this position. The concession also does not have an end date, although it may be prudent to operate on the assumption that it will end on 31 December like the one for employers.
These checks apply in England only.
Recent media reports suggested that existing benefits claimants who missed the deadline would have their payments stopped straight away. The immigration minister, Kevin Foster, has flatly denied this, saying on 22 June that “people [will] not be losing benefit payments on 1 July”.
It is understandable that there is confusion: guidance to staff at the Department for Work and Pensions says that “anyone who submits their EUSS application after the end of the grace period, becomes an unlawful resident in the UK until that application is decided”. I haven’t been able to find anything in writing that covers the government’s actual policy, perhaps because it is coming together last minute. But as explained by Foster, the process is as follows. Once the deadline passes, the Home Office and DWP will compare notes and write to anyone who they think is an EU citizen claiming benefits and has not applied to the Settlement Scheme:
we would look to signpost them to the EUSS — I think our intention is to give them 28 days — and after that we would advise DWP, but they would then take them on as individual cases. There wouldn’t just be a block removal of support.
Home Office officials have said that this will be implemented by way of an “extra-legislative concession”, whatever that means. It is frustrating not to be able to point to detailed guidance on this one, but if it turns up we’ll add it to this piece. At all events, the policy intention seems clear enough and in line with the 28-day grace period on offer in other circumstances.
That concession is for existing claimants. An EU resident with no post-Brexit immigration status who tries to apply for benefits for the first time after 1 July will be refused. Nor will they be able to claim on the strength of a pending late application. Eligibility will only open up following a successful late application (subject to the million and one other benefits rules).
The NHS guidance for England does distinguish between people who have applied late and people who have not applied at all. The former will not be charged for treatment:
Where a late application has been made to the Home Office, as evidenced by a Home Office Certificate of Application, the person should be considered as nonchargeable from the date of their application until such time as the outcome of that application is determined by the Home Office. Should a patient claim to have a Certificate of Application but is unable to provide it at the time of treatment, OVMs [Overseas Visitor Managers] should contact the Home Office SVEC service for confirmation, by emailing ICESSVECWorkflow@homeoffice.gov.uk.
The latter will be charged:
An individual who is eligible to apply to the EUSS but who has not submitted an application by 30 June 2021, who is therefore in the UK without immigration status, will be chargeable.
Nor will someone forced to pay for treatment be refunded if they later make a late application and are granted pre-settled or settled status.
As we have seen, there are various protections in place for EU citizens who have not secured residence rights by 30 June 2021. Whether they will help in reality, especially in respect of those who miss the deadline, is another matter. Guidance is all very well but employers, landlords and civil servants need to both know about and follow the guidance in order for it to be effective. We can expect some not to know about it, and even for some who do know about it to misapply or ignore it.
On paper, at least, people who have applied by the deadline are in the strongest position, followed by people who have missed the deadline but at least applied late. There is no pressing reason to treat those cohorts differently and the process in place to protect the position of people with pending in-time applications could easily be used to protect those with pending out-of-time applications. Once someone has applied late, the incentives in place to drive them to do so have taken their course and there is no remaining need to punish them. It would have been better to allow confirmation of application in or out of time to serve as a temporary residence permit.
People who do not apply at all are in the weakest position. Nobody knows how many people are about to miss the deadline, but there is a broad consensus that it will mostly be people who are vulnerable in some way. People who have not managed to apply to the Settlement Scheme over the course of two and a half years are not likely to get around to it in 28 days. The Home Office has played a blinder in getting so many people signed up to the scheme so far, but can still blow it if it mistreats the minority who have slipped through the cracks.