30.EU citizens who have continuously exercised their rights under EU law for five years acquire the right to permanent residence. Once they acquire this right, they can apply for a document to attest their status if they choose to. In its Second Report of the 2015–17 session, our predecessor Committee drew attention to the UK’s 85-page application form for permanent residence—the average across 25 European countries for an equivalent application was four pages—and to the high proportion of applications that the Home Office had refused or declared invalid. The Committee concluded that the process for permanent residency applications was not suitable for handling applications from three million EU citizens in the UK.57
31.In her statement to the House on 26 June 2017 following the European Council, the Prime Minister said that reciprocal agreement had been reached on citizens’ rights and that a new:
system of registration that citizens go through will be as streamlined and light-touch as possible, and we intend to remove some of the technical requirements currently needed to obtain permanent residence under EU rules. For example, we will not require anyone to demonstrate that they have held comprehensive sickness insurance.58
32.EU citizens in the UK can still apply for a permanent residence certificate as a step to citizenship, but applicants are still being refused for reasons such as not having comprehensive sickness insurance.59 As Nicholas Hatton, Co-Chair of the3million, told us, this means that people are eager for the new system:
We are asking why this approach cannot start now. Why wait? There is a lot of anxiety among EU citizens because of the refusals of permanent residence applications.60
33.The Government set out a Statement of Intent for the new system on 21 June 2018.61 To acquire Settled Status, applicants will need to:
The online application form will be “short, simple and user-friendly” and applicants will need to demonstrate:
(1) that they are an EU citizen or family member.62
(2) their continuous residence in the UK. The Government has published a draft list of the type of documentary evidence which the applicant will be able to provide of their continuous residence in the UK, which includes:
The Government’s draft list includes examples of what it considers to be unacceptable evidence, such as references from family and friends, photographs, postcards, scrapbooks, or multimedia evidence.63
The Government has said that it will automatically draw on HM Revenue and Customs (HMRC) and Department for Work and Pensions (DWP) data.64
(3) Criminal checks. The application will ask people to self-declare convictions which will be checked against the UK’s crime databases. Police checks will be carried out on all applicants over 10 (parents fill in the form for children). Criminal convictions before the end of transition on 31 December 2020 will be assessed according to the current EU public policy tests. We discuss this in the criminal record checks section below.
Subject to criminality and security checks, the applicants who can demonstrate five years residence will be granted Settled Status (indefinite leave to remain). Otherwise, they will be granted pre-settled status (limited leave to remain) subject to criminality and security checks, while they accumulate the necessary five years residence.65
34.The Immigration Minister, Caroline Nokes MP told us that:
We want it to make it as wide a range of evidence as possible. One of the reasons why we have laid the immigration rules and the statement of intent [was to enable] people to look at what we are putting forward, the wide range of things that can be included, and indeed come to us with suggestions of what could be used additionally.66
She indicated that the Government will be testing the system at scale during the autumn. She anticipated that it will be introduced in phases towards the end of 2018 before being fully open by March 2019.67
35.The Government states that it will work with applicants to help them avoid any errors or omissions that may impact on the application decision. Caseworkers will have scope to engage with applicants and give them a reasonable opportunity to submit supplementary evidence or remedy any deficiencies where it appears a simple omission has taken place. On 21 June 2018, while announcing the Statement of Intent, Caroline Nokes, said:
Throughout the process, we will be looking to grant applications, not for reasons to refuse them, and caseworkers will be able to exercise discretion in favour of the applicant, where appropriate, to minimise administrative burdens.68
36.The Statement of Intent does not set out how long it will take to process each application, but the previous Immigration Minister, Brandon Lewis MP, said last December that applicants would get a decision within two weeks,69 and the Secretary of State, Rt Hon Sajid Javid MP, has said that the Home Office is increasing European caseworker staffing levels from 700 to 1500.70 Mark Doran, Deputy Director, EU Exit Immigration Strategy at the Home Office, told us that they are hoping to have real-time information displayed on the first application page to help manage demand.71
37.Caroline Nokes, told us that:
discretion being given to caseworkers is a new concept, but that is why we are onboarding caseworkers early, why they will receive comprehensive training, and it is important to us that we recognise that this is an offer that we have made to EU citizens that we will stand by and we want this to be as easy a process as possible. We expect most people to achieve their settled status with a minimum of problems.72
[…] it is, I think, absolutely incumbent upon us that we make sure there is comprehensive training of caseworkers. The requirements for settled status are so significantly lower in terms of ID, residency and non-criminal behaviour that I think it should be perfectly reasonable within the timescale to have caseworkers up to speed and able to make these decisions.73
38.The Government has previously said, in June 2017, that EU citizens in the UK will need to apply to the Home Office for immigration status in UK law, and that this will be evidenced through a ‘residence document’. The Government has stated that:
This will be a legal requirement but there is also an important practical reason for this. The residence document will enable EU citizens (and their families) living in the UK to demonstrate to third parties (such as employers or providers of public services) that they have permission to continue to live and work legally in the UK. […] As such, without a residence document, current residents may find it difficult to access the labour market and services.74
39.Similarly, following difficulties encountered by members of the Windrush generation and the ‘Hostile Environment’ policies, the Government launched the Windrush Scheme. The first paragraph of the Home Office document outlining who is covered by the Windrush Scheme said:
People who arrived in the UK many years ago and do not have documentation confirming their immigration status have faced difficulties in proving their right to work, to rent property and to access benefits and services to which they are entitled. The Government has apologised to people in this position and has made a commitment to help them get the documents they need.75
40.Since 2008, the UK has gradually introduced the regulations requiring non-EU immigrants to apply for biometric immigration permits (or Biometric Residence Permits - BRPs).76 The current position is that anyone applying for leave to remain for longer than six months must have a biometric immigration status document.77 It is common for landlords and employers to be asked to check the immigration status of a tenant to ensure they can legally rent a residential property in England, or employ someone. Those who rent to, or employ, someone here illegally, could be liable to a civil penalty. It is possible to avoid the penalty if they can show they made “checks and retain[ed] copies as required”.78 Commonly accepted forms of identification asked for as evidence of immigration status are UK passport, an EEA national passport or identity card, or a Biometric Residence Permit with unlimited leave.79
41.EU citizens who are successful in acquiring Settled Status will not receive a physical document, but instead will receive confirmation in digital form.80 In evidence to this Committee on 6 June 2018, Anne-Laure Donskoy, Co-Chair of the3million, said EU citizens “absolutely need a document that we can have in our hands and in our pockets.” She raised concerns over the willingness of some landlords to engage with a digital code, and in potential difficulties accessing public services. Barbara Drozdowicz, from the Eastern European Resource Centre (EERC), said it would be similarly difficult for engaging with employers.81 the3million have expressed concern that those asked to make a simple digital check will be a deterrent and they will “choose to provide their services to someone with familiar (physical) documents.”82
42.The Government’s Statement of Intent explains that the grant of Settled Status (indefinite leave to remain) or pre-Settled Status (limited leave to remain) will enable the applicant “to continue their lives in the UK much as before” including to work, study and access public services and benefits. EU citizens in the UK who are successful in securing Settled Status will be able to demonstrate this with a digital code and no physical document will be issued to them. The Statement notes that the UK has started using digital status to allow non-EEA citizens to prove their right to work, and that the Home Office “will monitor this and the digital status issued under the scheme.”83 In contrast, non-EU family members who are successful in acquiring Settled Status, will receive the “digital means of evidencing their status” and “will also be issued with a biometric residence document” which:
will provide them with a convenient way of evidencing their status to those who may need to see confirmation of it, such as an employer, landlord or service provider.84
43.Caroline Nokes explained to us how the digital code would work in practice:
The individual citizen will be able to send a link via e-mail to the landlord [or employer], where they would be able to check it on a one-time basis only so that it remains secure. That would then confirm their rights in much the same way that digital status is already available for right-to-work checks.85
She also explained that those without access to PC, tablet or phone will be provided confirmation by letter:
but that is not a secure document and we have to be very conscious of that. This is one of the factors that we will work through. I do not have, off the top of my head, the number of people in this country who do have access to smartphones, PCs or tablets. Access is incredibly high but I am conscious that in the older-age spectrum there may be those who do not.86
44.Simon Bond, a Strategy Director at the Home Office, explained to us the advantages of a digital code over a physical document:
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. Over time, that is what we would like to move to.87
Mr Bond said that the National Cyber Security Centre had assessed the system.88
45.In the past, the ability of a non-UK passport holder to demonstrate their immigration status has been to show a document such as a Biometric Residents Permit or a non-UK passport with an endorsement showing their status. This has been important to enable individuals to demonstrate their right to be in the UK to employers, landlords, and to access public services. The Government has acknowledged the difficulty in proving a right to work, rent or access public services, without documentation. Documents, such as endorsed passports or biometric cards, are understood as forms of identification and are likely to be the default document requested by a landlord or employer.
46.The Home Office has decided not to issue a hard document or endorsement on passports as evidence of Settled Status, but instead to send the successful applicant a digital code, which is then passed to an employer, or landlord, who would need to input the digital code into a Home Office website, enabling them to access information that confirms the individual’s immigration status. We note that the preferred method is for the individual to have an electronic device—such as a smartphone or tablet to receive the digital code—and for the employer to also have access to an electronic device to be able to go online, and be willing to go through the process. The Government should clarify how employers and landlords are meant to take and keep copies of digital records of settled status as they are currently required to do for physical documents.
47.We have heard evidence from the EU citizens in the UK that they would prefer a hard document to be able to show their legal status and to minimise the chance of them experiencing discrimination. The evidence of the Windrush generation—where many people who were perfectly entitled to be in the UK but found it difficult to persuade others of this without physical documentary evidence—has heightened this concern.
48.The Minister told us that the Home Office has started to roll out online checking of digital status for right-to-work checks. We recognise that, in future, other groups of non-UK passport holders will be using similar digital processes as a matter of course to demonstrate their immigration status. However, we are concerned that this is a task of unprecedented scale for the Home Office and it is being done within a very tight time frame. The experience of the Windrush generation shows that, where errors occur, it can lead to devastating consequences for individuals and their families. We are also concerned about the potential for fraud and the incentive for individuals to be exploited if they cannot persuade an employer or landlord of their status.
49.The Home Office has said the digital code system will be less resource intensive, reduce fraud and be simple to use. We are concerned that the Home Office is introducing a new system on a large scale, and which relies upon employers, or landlords, understanding and embracing a new way of working. This might work well for many, but for some the risk of a civil penalty for employing or renting to someone without the correct immigration status, and a lack of understanding of the new system, may deter them from employing or renting to EU citizens, or create difficulties in enabling their status in other circumstances to be confirmed. We call on the Government to issue a physical document to EU citizens.
50.There are several categories of people who would be eligible but may fail to register for Settled Status. A report from the Migration Observatory suggested that these include:
In addition, there may be people for whom making the application process could be difficult, such as the victims of domestic abuse who might rely on a partner for evidence, those who have been trafficked or exploited by an employer, or people living in circumstances where they do not have stable housing. By their nature, it is difficult to quantify such groups.90
51.In evidence to this Committee, Ms Drozdowicz, from the East European Advice Centre (EERC), highlighted that vulnerable groups of EU citizens who will be especially difficult to engage with include children in care and people in care homes. She said the EERC has been working with the Home Office working groups around safeguarding of these risk groups but stressed that: “it is not clear to us what sort of support will be given to these particular vulnerable groups.”91
52.When it was suggested that the provision of immigration advice might assist in alleviating some of the concerns of vulnerable people, Ms Drozdowicz cautioned that this is often not available in rural areas:
Rural areas pretty much anywhere are deprived of immigration advice. Our worry is that, for example, eastern European EU nationals, such as agricultural workers, are effectively deprived of access to the advice and information.92
She wanted the UK Government to make sure EU nationals had access to information that is not only based on digital means. Ms Donskoy said that the Government had proposed a telephone helpline, but it was not clear whether calls would be free. She supported “local, face-to-face access to legal advice and legal support.” She said that there was no legal aid, except only “in very special circumstances.” And the people in need would include victims of trafficking and victims of rape, who dare not report issues to the police.93
53.A further vulnerable group of residents are those who may struggle to provide documentation. There are people with chaotic lives, have become estranged from their spouse, or are homeless. They may not have any identification.94 Ms Donskoy also drew attention to other citizens who may have ID documents but not have their names on any supplementary documents that prove they are resident.95 The Migration Observatory has suggested groups who might struggle to provide documents could include:
54.In evidence to the House of Lords EU Justice Committee, Glyn Williams, Director-General, Border Immigration and Citizenship System, Home Office, explained that the Home Office:
have set up three stakeholder groups [including] one for those who are more on the vulnerable side. Secondly, UKVI is already working with a company that is offering a digital assisted service to people applying under UKVI existing schemes. They offer guidance on the telephone and can arrange appointments at libraries or, in the case where people cannot access libraries, send a so-called tutor to do a home visit. We have been trialling that for the last six months and intend to build on it for that scheme. We have set up an email registration service for EU citizens who want to be kept informed of developments—and I think that we have more than 200,000 who are registered for that now. We have been doing a communications campaign through social media on Facebook, and so on.97
55.In evidence to this Committee, Guy Verhofstadt acknowledged that the Home Office is working on this and said that he had told the Home Secretary, Sajid Javid, that national contact points would be a solution:
We want a network of contact points in Britain where these people can go. A contact point does not mean there is one contact point in London and one contact point in Birmingham. That is not what we want. We want a number of contact points where people can easily go. If they cannot go because they are, for one or other physical reason, not capable to do so, the Home Office can come to the home of these people to fill in this registration—we call it a registration—for settled status.98
56.Mr Verhofstadt reiterated this possible solution in his remarks to the European Parliament on 2 July 2018. He also stated that he will urge the UK to set a deadline for registrations so that Home Office officials can respond to an application for settled status in due time. If there is no response by the deadline, the application “would be accepted”.99
57.The Statement of Intent indicates the online application form is being designed “so that it is short, simple and user-friendly.” Applications can also be made via an app on a smartphone. All EEA passports have a chip, which allows holder to use ePassport gates. This chip can be scanned to swiftly upload information on the holder, negating the need to physically present the passport as proof of identity. The Settled Status smartphone app hopes to use this chip-checker facility to scan details from a passport and thus avoid the need to scan individual identification documents. During her statement on 21 June 2018, Caroline Nokes, said:
The digital application will be available on any computer, tablet or smartphone, but the chip-checker is currently available only on Android. […] the Home Secretary has recently raised that matter with Apple, because of course we would like the chip-checker to work on everything.100
58.This Committee heard of the other potential pitfalls of having a digital application process. One of these is the spelling of names, as Ms Donskoy explained:
It is quite common in northern countries for the second name to be used as the first name. There are names with accents, names with hyphens. In some countries, the maiden name is used as the family name and the system says “no”. It is a classic case where the system rejects the applicant because we do not fit within the norm of having a British name where there are no accents, no this, no that. I get kicked out every time I want to go online to check in, because I have a hyphen in my name, so “computer says no”.101
59.The Migration Observatory report on Settled Status said some people will struggle “to navigate an application due to difficulties accessing or using the application”. This could be because of factors such as:
60.Caroline Nokes told us that:
Government services are digital by default. We would prefer that to be the default route and think that it provides a much quicker and seamless service.103
[…] I am very conscious that this is going to be an iterative process that we will learn throughout. I am reasonably confident that we have dealt with the challenges of different fonts, and alphabets that are not the same as our own. Of course there will be challenges. I am conscious that we have in the region of three years to resolve any technological problems that occur, to resolve anything that might come to light during the course. This is why we are working with user groups across the 27 EU member states so that we can address these challenges as they think of them.104
61.We welcome the Immigration Minister’s recognition that some EU citizens living in the UK will face linguistic challenges in dealing with standard application forms designed to accept only English. This is a real concern where the application form may ask for names in a different format to how it is displayed in their passport, or other identity document.
62.The Statement of Intent includes details on categories of people who currently have a right of residence under EU law, but not the Free Movement Directive, and will be protected by the WA. This was a matter previously commented on by the Committee in its Fifth Report of this Session, where the WA appeared to cover the ‘Chen children’ but not the ‘Zambrano children’.105 The Statement of Intent comments on the Chen carers and Ibrahim and Teixeira children or carers, to explain that these persons may be eligible to apply, and if not, provision will be made in the Immigration Rules to enable them to do so, consistent with the WA.106
63.The Statement also identified other caveats. A non-EU citizen family member of a British citizen who is lawfully resident in the UK through the ‘Surinder Singh’ route before the end of transition will be able to apply.107 Zambrano carers—non-EU citizens who are the primary carer of a British citizen in the UK—will be provided for in the Immigration Rules. The Government has said it will provide further information, in due course, for people not covered by the Withdrawal Agreement, but who they intend to provide for through the Immigration Rules.108
64.We welcome the Government’s position that it will protect carers and children who might not be covered by the Withdrawal Agreement or have acquired rights through EU case law and would otherwise be at risk of losing their ability to demonstrate their right to reside in the UK. The Home Office has said it may have to legislate to provide this protection and will provide further information in due course. We look forward to these commitments being given legal effect.
65.The Government’s Statement of Intent indicates that the fee for applications will be £65 for adults and £32.50 for children under 16. Applicants who have already acquired Permanent Residency will be exempt because they have already paid a similar fee.109 The Secretary of State, Sajid Javid MP, has said that assistance in libraries and home visits for vulnerable people will be free of charge.110 On the price of an application, Ms Donskoy explained that:
The Joint Report [of December 2017] said there should be no fee, but for some reason it has been reinstated, I think in the [Withdrawal Agreement], and has not gone away.111
66.She said “We still think this is totally unfair. […] there is a huge cost when you have a family.” Furthermore, there were indirect costs associated with the application, such as taking time off work and travelling.112 Ms Drozdowicz suggested that:
Removing the fee without any complicated waiver process […] will hugely support people’s decision to actually go and do it.113
Mr Verhofstadt highlighted to the European Parliament on 2 July 2018 that he will insist the fee is scrapped: “We think the people who lived in Britain before the notification of the Withdrawal Agreement shouldn’t pay a fee”.114 The Scottish Government has also called upon the UK Government to scrap the fee and has expressed the concern that for some low-income families and for older people, the cost may deter them from regularising their status. The Scottish Government has also said it will pay the settled status fee for any EU citizen working in the public sector in Scotland.115
67.The Immigration Minister told us that the Government does not intend to provide a waiver scheme,116 although the fee for children who are within the care system will be waived.117 She stressed that the Scheme is going to cost the Government more to administer than they will recover in fee income, because they will have to spend significant sums making sure that they have the human resources and caseworkers.118 Simon Bond explained that the Government will publish estimates of these costs when they lay the rules as part of the impact assessment.119
68.The fee for Settled Status applications has been a factor in the negotiations. The EU-UK December Joint Report said that residence documents will be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents. The Minister told us that the UK and the EU have agreed to a fee being charged for each application. The cost—£65 and £32.50 for children—is the same as the cost charged by the Home Office for permanent residence applications. We welcome the reduction in cost for children and ask the Home Office to consider a comparable reduction for retired people. We welcome the assurance that the Home Office will produce an impact assessment explaining the costs of the Settled Status scheme and look forward to its publication at the earliest opportunity. We call on the Home Office to ensure that this impact assessment examines the likely effect of the fee on the take-up of the settled status scheme. It should review its policy if the impact assessment indicates that take-up would be substantially negatively impacted by the charging of a fee. The European Parliament has maintained that the application should be free; and we would support this position, but only if it were to be reciprocated to the extent that no charges would be imposed on UK citizens in the EU to regularise their status. We are concerned that persons who came to the UK in good faith, in exercise of their right of freedom of movement and with the reasonable expectation that they could continue to do so without charge, should have to pay a fee to apply for a status that is being retrospectively applied to them. If employers choose to reimburse their staff for the cost of any application for Settled Status this should not be classified as a benefit in kind.
69.We heard evidence that the Home Office will need to provide information to EU citizens in the UK, to make them aware of the scheme and to persuade them to apply. The Government’s Statement of Intent indicates that more information will be available shortly on when the EU Settlement Scheme will be open and how to apply. EU citizens and their family members can sign up for email updates on gov.uk.120 Mr Hatton told this Committee that the Home Office is working on a set of frequently asked questions, to be published in the future.121
70.Ms Drozdowicz said there appeared to be some in the Eastern European community who were in denial or unaware about having to apply for Settled Status. The Eastern European Resource Centre website said:
Lately we have been spending a lot of time going around London in Eastern European shops and churches and have been explaining new Settled Status to people and hearing their concerns. We found out that many Eastern Europeans are not convinced yet that they would need to apply for some sort of documentation to be able to stay in the UK after Brexit. For example, some believe that as long as they are law abiding citizens (paying their taxes, not breaking the law), they will be able to stay here without applying for any papers. Others believe that this status will be awarded automatically. Some are frustrated that they need to apply for anything and are thinking about leaving the UK. Others are worried about friends or family that have an uncertain status at the moment (for example working cash in hand) and whether they will be able to apply for this new status.122
71.Ms Drozdowicz told the Committee:
It really worries us that some sections of people seem to choose, if you can choose that, to be in some form of immigration denial. Uncertainty has been with us for so long, it has been so deeply normalised, that people just refuse to engage, full stop. It worries us that people will not register to the scheme, not for any malevolent reason; they just do not understand why they should be doing that. The logic is: “I have been here eight years”—or 10, 12 or 15 years—”and I have been working. The Government can go and check Revenue and Customs records. I have been here legally. Everything is fine. I am not going to do anything about that”.123
72.She explained that the Home Office has said it will roll out a digital assistance scheme in libraries. However, she expressed concerns about their accessibility:
This is not the first place where people who are struggling with, for example, language or literacy barriers would go. So far, there is no solution to the problem of overcoming the barriers. If the scheme exists to support people who will face problems in accessing the scheme, the scheme itself is inaccessible.124
She also pointed out the deficiencies in other planned channels of information, and a lack of meaningful engagement with the third sector to help cascade information, advice and support, to those hard to reach groups. She doubted whether social media on its own would be sufficient, and whether the messaging had to take into account people who are not fluent in English.125 She felt that face to face provision was the best means to address this in some circumstances, such as the elderly or children in residential care.126
73.During her statement on 21 June 2018, Caroline Nokes said that:
I am very conscious that a significant part of this is about communications. We have already started our communications plan, but that will ramp up significantly over the course of the next few months. It is crucial that EU communities, wherever they live in the country, have the opportunity to know what the scheme is about and to understand it. Today, I have published an op-ed piece in a Polish newspaper. There will continue to be significant engagement with foreign newspapers.127
74.Before our Committee, she said that the best way to communicate with EU citizens in the UK was to engage with the embassies, the consulates, and our user groups. She said that 200,000 EU nationals have signed up to the Home e-mail updates on this subject, which allows the Home Office to notify them directly. She said that the Home Office is using digital media—such as Facebook adverts which can be targeted to particular community groups—and foreign-language newspapers. Regarding vulnerable groups, she said:
We are working particularly with user groups around vulnerable individuals so that they can used the assisted digital, and at different locations they will be supported through the process. Some face-to-face applications will be allowed and we are looking at ways that we can make postal routes as simple and straightforward as possible.128
[…] We are working across the piece to make it the most straightforward and seamless route to use, but of course I understand that there will be those who still will not be able to.129
75.She added that “it is incumbent upon us to work with all arms of Government” and that it is “absolutely imperative that we work with all the devolved administrations.”130 This included raising awareness among local government, although she was “reluctant to place burdens on local authorities”.131 She also thought that Government would be “well advised to increase communications and work with employers more intensively” if Government thought there would be a “significant shortfall” in the numbers registering.132 When asked if the Home Office would publish Performance Indicators on the number of applications received, the speed of response, and approval rate, the Minister said
I do think that we have to do that. […] I do think that would be useful both for the scrutiny of the scheme by individual Members of Parliament and indeed for the public.133
76.The UK Government has said it wants EU citizens in the UK to stay. The provision of information relating to the new scheme will be of paramount importance in ensuring its success. There are two clear audiences that need to know why it is necessary and how it will work: EU citizens currently resident in the UK and those who may have reason to ask a EU citizen to demonstrate their immigration status. The 3 million European citizens are spread throughout the UK, including many remote and rural locations. They may not all be connected to the internet or have a good mobile telephone signal. Many do not currently understand that applying will be necessary to regularise their status in the UK. It would be regrettable if there was a low take-up for the scheme due to a lack of awareness.
77.The Home Office will not be the only body delivering any information campaign. We welcome the engagement that the Home Office has started with Embassies, consulates, user groups, and local authorities. It will be very important to disseminate information through representatives of the various European communities established in the UK so that the message can be amplified to the people who need to apply. The Government should consider how it might provide additional resources to such community organisations that will be doing valuable work on the Government’s behalf.
78.It is clear that the Home Office is moving towards greater reliance on digital methods to carry out its work. It has invited EU citizens to sign up to email alerts to keep abreast of the Settled Status scheme. Bearing in mind the scale and diversity of the settled EU population in the UK, it is important that the Home Office utilise a variety of media to make sure they get their message across. For example, given that many EU citizens travel back and forth, and will do so during the transition period, a cost-effective measure would be to publicise the scheme via transport operators and ticketing agencies.
79.The Statement of Intent indicates that criminal and security checks will be carried out on all applications for status under the scheme. It states that criminal convictions before the end of transition period, by a person protected by the Withdrawal Agreement, will be assessed according to the current EU tests for deportation, as set out in the EEA Regulations. After transition, their conduct and criminal convictions relating to it, will be considered against UK deportation thresholds.134 Mr Doran, Deputy Director, EU Exit Immigration Strategy at the Home Office, told us that:
The existing EU public policy test requires us to look at each individual set of circumstances. There is no absolute threshold. It is about a genuine, present and sufficiently serious threat to the UK. In general that is a serious offence; one serious offence of the type the Minister alluded to,135 or a number of less serious crimes. The caseworker also needs to take into account things like how long ago the offence was, and the conduct of the person since the time of that offence or conviction. The public policy test is not black and white. What we are doing under the Withdrawal Agreement is assessing any criminal convictions before the end of the implementation period under the EU public policy test and any criminal convictions committed after that point, under the UK test, which is more black and white, and that is very clear; if you have had a 12-month sentence, you will be considered for deportation.136
Caroline Nokes told us that the Withdrawal Agreement will allow the Government “to ask other EU countries about foreign criminality”.137
80.We heard evidence concerning future denial of settled status on the basis of criminality. Barbara Drozdowicz said that there was a lack of understanding of what the test for deportation would be—she gave the example of someone who had asked whether their conviction for shoplifting in France in 1973 would count against their application—and said it had the potential to deter people from engaging with the scheme: “They would rather do nothing and just go underground”. She called for further guidance “to help people understand what it is that disqualifies them and potentially puts them at risk of being deported” because at the moment, “I will be honest: it is not at all clear to anyone.”138 Mr Hatton pointed out that:
allegedly about 20,000 EU citizens a year have a conviction that could make them fail the settled status application. The question is what happens if you fail. Are you going to get a deportation order? What is going to happen?139
81.There needs to be clear guidance on what the threshold is for not being awarded Settled Status on the grounds of criminality. Such guidance for applicants and Home Office caseworkers will help ensure fair and consistent application of the law. The Government has said it wants all EU citizens in the UK to apply for the Settled Status. We do not want large numbers of people to be deterred because they fear a minor or old conviction would disqualify them before they have even applied. But it is right that the Government should know about the serious criminal convictions of someone applying for settled status in order to decide whether it should be refused. Importantly, clear guidance will encourage EU citizens in the UK to feel they can apply and be treated fairly. In turn, this should also reduce the potential number of appeals.
82.For those who denied settled status, there is also a related issue of access to data. On 25 May 2018, Parliament passed the Data Protection Act 2018, implementing the General Data Protection Regulation (GDPR). It states that GDPR provisions will not apply “to personal data processed for any of the following purposes: the maintenance of effective immigration control or the investigation or detection of activities that would undermine the maintenance of effective immigration control”.140
83.the3million argues that this exemption will make EU citizens and others “second-class citizens” without full access to Home Office files. They argue that the general nature of the exemption could prevent people from accessing data from all public organisations caught up in Home Office decisions, including HMRC, the police and private contractors such as G4S. the3million argues that this means that should an application for Settled Status be rejected, it would be more difficult to appeal successfully, without access to such data. Mr Hatton explained to this Committee that the3million are launching a legal challenge to the provision. He highlighted the lack of clarity concerning use of the exemption:
We understand that the exemption will be used case by case, so it is not clear how [the Home Office] would apply the exemption. Because the exemption exists, it worries people that they will not have full access and it will be used against their own case to cover up mistakes if there are mistakes.141
84.In May 2018, the Secretary of State, Sajid Javid, wrote a letter to Guy Verhofstadt addressing these concerns:
I understand there has been concern about the proposed immigration restriction in the Data Protection Bill but would like to reassure you that it will only be used where there is a likelihood of prejudice to effective immigration control, for example in relation to on-going or planned enforcement activity. EU citizens will, as now, be able to request data via a Subject Access Request to the Home Office, and if necessary, to rectify the data held about them. However, we do not expect this to happen frequently owing to the simple design of the Scheme.142
85.There is understandable concern that appellants might not have access to all the data that the Home Office has used to form a decision on their application. This may lead to individual circumstances where EU citizens are denied Settled Status and the applicant is unable to challenge a refusal without access to the evidence which led to the decision. We therefore call upon the UK Government to waive the data protection exemption to EU citizens and give them full access to their Home Office files in cases where their application is rejected.
86.Caroline Nokes told us that the system will be tested at scale in the Autumn, and that it will be launched towards the end of the year in phases and fully open by March 2019.143 The Government’s Statement of Intent explains how the timetable for applications runs alongside the dates for the UKs withdrawal from the EU, and the transition period:
There will be plenty of time—until 30 June 2021, six months after the implementation period ends on 31 December 2020—for all those resident here by 31 December 2020 to apply for status under the EU Settlement Scheme, and they will remain protected by the Withdrawal Agreement pending the outcome of such an application made by 30 June 2021. Close family members joining an EU citizen here after 31 December 2020 will have three months from their arrival in which to make an application for status under the scheme (or until 30 June 2021 if they arrive before 1 April 2021).144
It also states that, where someone misses the deadline for their application for a good reason, they will be given a reasonable further period in which to apply.145
87.The Home Secretary, Rt Hon Sajid Javid MP, has said that the Home Office wanted to be “very sensible and open-minded” about EU citizens coming forward after the scheme has closed, for those with a “good, legitimate reason” for missing the six months grace period after the end of transition.146 The Statement of Intent also clarifies that:
Until the end of the implementation period, applicants refused status under the scheme will still be able to assert their free movement rights and will retain their statutory right of appeal against any restriction of those rights under the EEA Regulations.147
The Immigration Minister, Caroline Nokes MP, told us to us that “there has to be a proportionate response to those who may have missed the deadline through no fault of their own.”148
88.In our Second Report of this Session, we warned that if: “the processing of applications continues after the two year implementation period then there will be a proportion of EU citizens in the UK unable to demonstrate their settled status and therefore their right to live and work in the UK.”149
89.At Chequers, on 6 July the UK Government agreed to publish a White Paper setting out its vision for the Future UK-EU relationship. We asked the Immigration Minister about the ability of EU citizens to come to the UK now, and the future labour mobility proposal agreed at Chequers and subsequently published in the White Paper.150 She said she hoped there would be:
an agreement with the EU so that EU nationals can come here on visits and that we will be able to go the EU 27 without requiring a visa. […] we will have to make provision in the future Immigration Bill for people from the EU to come here for business visits or to work should they wish to.151
90.When asked to give an example of a labour mobility framework that we could look to, Caroline Nokes referred to the youth mobility schemes that the UK has with eight different countries, including Australia, New Zealand and Canada.152 She further pointed to the Government White paper published on 12 July and the forthcoming Immigration White Paper in the Autumn, as providing more detail.153 The White Paper section on Mobility Framework said that the UK’s future economic partnership should therefore provide reciprocal arrangements “consistent with the ending of free movement”, that:
It also states that “the principle of non-discrimination between existing Member States should apply to all of the provisions agreed as part of the framework for mobility.”154
91.A test version of the online site is expected to be available in Autumn 2018 and open to all by March 2019. We note the difficulty in anticipating the rate at which people might apply once the online Settled Status scheme is operational. Similarly, it is difficult to anticipate the number of EU citizens who might not have applied by the end of the transition period. For those who arrive before 31 December 2020—the end of the transition period—but do not submit an application, the Government has offered a six-month grace period. In addition, the Government has said it will take a ‘proportionate response’ to those who apply after the deadline through ‘no fault of their own’.
92.However, the scale of the task means that if even a small proportion of those eligible to apply do not do so, or are refused, there is a risk of a large number of EU citizens in the UK by July 2021 not having certainty as to their legal status. The UK Government needs to set out what it would do with thousands of EU migrants unable to demonstrate their legal status.
93.While we welcome the spirit of the Government’s approach to those who apply after the end of the transition period, it is not certain what will be required of an EU citizen entering the UK after transition. The Government’s White Paper published on 12 July says that free movement will end when the UK leaves the EU and describes an aspiration to a future labour mobility framework. We look forward to taking evidence on this fundamentally important aspect of the future UK-EU relationship as the negotiations progress.
94.The enforcement arrangements for citizens’ rights have yet to be clarified in detail. It has been agreed, under Article 151 of the draft WA, that preliminary reference procedures to the Court of Justice of the EU in respect of citizens’ rights will continue for eight years. Furthermore, Article 152 provides that citizens’ rights are to be monitored in the UK by a new Independent Monitoring Authority (IMA). The Joint Report agreed by the UK and the EU in December 2017, said:
The implementation and application of the citizens’ rights Part will be monitored in the Union by the Commission acting in conformity with the Union Treaties. In the UK, this role will be fulfilled by an independent national authority; its scope and functions, including its role in acting on citizens’ complaints, will be discussed between the parties in the next phase of the negotiations and reflected in the Withdrawal Agreement. There should be regular exchange of information between the UK Government and the Commission.155
95.A further issue brought to the attention of the Committee was the legal basis for the Settlement Scheme, as Mr Hatton explained:
Having a scheme that starts beforehand will not be an application of the withdrawal agreement. It will be done through secondary legislation without any statutory right of appeal. There are a lot of question marks legally on starting the scheme before the withdrawal agreement starts.156
96.the3million have published a list of 150 questions to the Home Office about settled status, which includes several relating to the working of the IMA.157 In May 2018, in its response to the Committee’s third report, the Government said, it would “publish further details of how the IMA will carry out its work and arrangements for appointments in due course.”158 The Government’s Statement of Intent indicates that, ahead of the IMA being setup by primary legislation, the implementation of the scheme will monitored by the Independent Chief Inspector for Borders and Immigration (ICIBI).159
97.Guy Verhofstadt has highlighted his concerns around the UK Government’s current proposals do not include details of an “independent authority to scrutinise the whole process”.160 And in a letter of 3 July 2018, to the Home Secretary, Guy Verhoftsadt outlined the concerns of the European Parliament Brexit Steering Group to the Settlement Scheme, the first of which related to the IMA and the temporary role for the ICIBI. He wrote:
We assume that refers to the period between the Scheme’s launch in late 2018 and the entry into force of the Withdrawal Agreement expected on 30 March 2019. It is crucial that as of the latter date, the IMA is up and running. Otherwise, it would potentially constitute a breach of Article 152, as the ICIBI would not have the powers and responsibilities outlined in the draft Withdrawal Agreement, which go beyond carrying out inspections. In fact they include conducting inquiries, receiving complaints and, crucially, bringing, on the basis of a complaint, legal actions before a UK court or tribunal.161
98.The Immigration Minister, Caroline Nokes MP, told us that the Government will be setting out details of how the IMA will operate “in due course.”162 She added that:
The Withdrawal Agreement says there will be an independent monitoring authority to monitor the Government’s implementation. That requires primary legislation to set up, so obviously we will have to do that. In the meantime, the EU Commission will continue to monitor both our implementation but of course the implementation of the EU 27 and how they are treating British citizens who are living in EU member states.163
She stressed that the Government is “content” that the ICIBI can fulfil the role in the meantime before the IMA is setup, but that they “are conscious that that is suboptimal”.164 She concluded that she is “very happy to provide an update on what work is going on, and can do that in writing.”165
99.The Withdrawal Agreement is to be incorporated in UK law, meaning that applicants can rely on it directly in front of UK courts to check that the Government is correctly implementing their rights. The Independent Monitoring Authority cannot directly refer matters but will take account of CJEU law for eight years from March 2019. UK courts may refer issues to CJEU.
100.The Immigration Minister told us that she was confident that the Independent Chief Inspector of Borders and Immigration (ICIBI) will be able to carry out the role of safeguarding the rights and EU citizens in the UK, until the Independent Monitoring Authority (IMA) is ready. We are not as confident that the ICIBI is entirely suitable for the role, and fulfils the requirements set out in Article 152 of the draft Withdrawal Agreement. Part of the reason for the delay is that the IMA will require primary legislation to pass through Parliament before it can be operational. However, this should not stop the UK Government from providing detail in relation to the IMA’s powers, procedures and resources. This is vitally important to instil confidence in the process, particularly given concerns expressed about the ability of the Home Office to manage such a task effectively. We look forward to receiving an update in writing on the work being carried out.
101.Irish citizens are the largest group of UK residents with nationality of a state other than the UK. More than a million UK residents hold Irish citizenship and at least 6 million may be entitled to it. Most of these people also hold British citizenship by birth in the UK, or by descent from a British citizen parent. Many Irish citizens resident in the UK do not hold British citizenship. 389,000 UK residents are Irish citizens by birth in the Republic of Ireland. Only a minority are likely to also be British citizens by descent (i.e. through a British born parent or grand-parent), and small numbers hold British citizenship by naturalisation. Concerns have been expressed that the current legal framework—comprised of the Common Travel Area and the Ireland Act 1949—is insufficient protection to maintain the status quo for Irish nationals in the UK as most of their rights derive from EU law.166
102.The Government’s Statement of Intent reiterates that Irish citizens enjoy a right of residence in the UK that is not reliant on the UK’s membership of the EU. They will not be required to apply for status under the EU Settlement Scheme (but may do so if they wish), and their eligible family members (who are not Irish or British) will be able to obtain status under the scheme without the Irish citizen doing so.167
103.We took evidence from representatives from the Irish in Britain.168 Catherine Hennessy, Trustee, Irish in Britain said that the Windrush scandal had affected the community’s confidence in reliance on the Common Travel Area to some degree, particularly among older people who are worried they may have to demonstrate their rights to benefits, healthcare and housing. She specifically referred to documentation:
Many fear they will not have the documentation required, given that their early employment may have been of a casual nature and may have taken place several years ago, because they are now retired.169
Dr Mary Tilki, former Chair of the Irish in Britain, said there had been “anecdotal evidence of people having problems already with the habitual residency test when they go for benefits” and suggested that separate information should be provided to explain that Irish citizens have different rights and entitlements from some other EU citizens.170
104.The Immigration Minister, Caroline Nokes MP, clarified to us that:
The reality is that we take very seriously the rights under the common travel area. We could not have obliged [Irish citizens to apply], but [that if they] wish to, they could.171
105.She did point out however, that:
There is one element, which is when it comes to EU citizens with settled status and their right to bring in non-EU spouses or people with whom dependence pre-exists. [Irish citizens] might choose to do so to facilitate bringing in a non-EU spouse. I say “spouse” for easy reference, but that could be a durable relationship that pre-existed.172
Mr Doran suggested it would be “easier” both for the Home Office and for Irish citizens if Irish citizens exercising this right were registered under the scheme.173
106.Irish citizens in the UK have a unique set of rights. As they have the option of applying for Settled Status and may find it easier to exercise some of their rights if they have Settled Status, we recommend the Government sets out detailed guidance to clarify the situation and avoid uncertainty. Given their special status we do not think any Irish citizen should be charged a fee to apply for settled status.
57 Second Report of Session 2016–17, The Government’s negotiating objectives: the rights of UK and EU citizens, 5 March 2017, HC 1017
62 Non-EU citizen family member will have to provide proof of the continuous residence of their EU family member
63 Statement of Intent, EU Settlement Scheme: Statement of Intent, Annex A
64 Where the automated checks of HMRC and DWP data do not indicate continuous residence, the applicant will then be asked to upload documentary evidence, or evidence that they are in one of the categories eligible for settled status with less than five years’ continuous residence
65 Leave to remain is permission given by the Home Office to remain in the UK. It may be time limited, and conditions may be attached, such as restrictions on the ability to seek employment and a requirement to not rely on public funds. Indefinite leave to remain (ILR) is a form of immigration status given by the Home Office that gives permission to stay in the UK on a permanent basis.
74 Policy paper, The United Kingdom’s exit from the European Union: safeguarding the position of EU citizens living in the UK and UK nationals living in the EU, 26 June 2017
76 Sections 5–15 of the UK Borders Act 2007
78 For landlords, the penalty ranges from £80 for a first-time penalty for a lodger in a private household, up to £3,000 for a subsequent penalty of a tenant in rented accommodation.
89 Migration Observatory, Report, Unsettled Status? Which EU Citizens are at Risk of Failing to Secure their Rights after Brexit?, 12 April 2018
90 Migration Observatory, Report, Unsettled Status? Which EU Citizens are at Risk of Failing to Secure their Rights after Brexit?, 12 April 2018
96 Migration Observatory, Report, Unsettled Status? Which EU Citizens are at Risk of Failing to Secure their Rights after Brexit?, 12 April 2018
100 HC Deb, 21 June 2018, col 512
102 Migration Observatory report
105 Third Report of 2017–19, The progress of the UK’s negotiations on EU withdrawal (March to May 2018)
106 Statement of Intent, Paras 6.10–6.11. A Chen carer is a primary carer of a self-sufficient EU citizen child or children in the UK; An Ibrahim and Teixeira child is a child of a former EU citizen worker and is in education in the UK, and an Ibrahim and Teixeira carer is the primary carer of such a child; and others who need a right of residence in the UK in order for a Chen or Ibrahim and Teixeira child to remain in the UK (e.g. other children of the primary carer)
107 Statement of Intent, para 6.12
108 Statement of Intent paras 6.10–6.12; Q2255–2258; and Home Affairs, Oral evidence: Work of the Home Secretary, HC 434, 28 March 2018, Q219–220
115 Letter from Fiona Hyslop MSP, External Affairs Secretary, to Sajid Javid, Home Secretary, 15 July 2018; BBC News, Sturgeon says government will pay EU ‘settled status’ fee, 8 October 2017;
122 Eastern European Resource Centre, One year to go – Brexit, 28 March 2018
127 HC Deb 21 June 2018, col 515 EU Settlement Scheme
135 The Immigration Minister said that “serious criminality” would be the current benchmark, “so sentences of more than 12 months or three lesser convictions” (Q2297)
140 Legislation.gov.uk, Data Protection Act 2018
150 The Future Relationship between the United Kingdom and the European Union, Cm 9593, Section 1.4, Framework for Mobility
152 Q2260 A Tier 5 (Youth Mobility Scheme) visa is available for people aged 18–30, from the specified countries, who wish to live and work in the UK for up to 2 years. To apply, the applicant has to pay £244 and the NHS surcharge (£150 per year), and have £1,890 in savings. If successful, the applicant can come and go, as long as the visa is valid.
153 Q2262 and Q2264
155 Joint Report on progress during phase 1 of negotiations under Article 50 TEU on the UK’s orderly withdrawal from the EU, 8 December 2017, para 40
158 The progress of the UK’s negotiations on EU withdrawal (December 2017 to March 2018): Government Response to the Committee’s Third Report
159 EU Settlement Scheme: Statement of Intent The ICIBI inspects all elements of the UK borders and immigration system, and is independent of the Home Office, providing impartial reports for the Home Secretary which are laid in Parliament.
160 Politico, MEPs to send UK complaint over post-Brexit plans for EU citizens, 3 July 2018; See also the Draft Statement of the Brexit Steering Group 12 July 2018
166 The Traveller Movement [Simon Cox], Brexit and Irish citizens in the UK How to safeguard the rights of Irish citizens in an uncertain future, December 2017, para 98
Published: 23 July 2018