3Has the Government learned from the Windrush scandal?
36.The Windrush scandal, which we reported on in July 2018,39 saw thousands of UK residents, who had moved to the UK from Commonwealth countries, treated as illegal immigrants and detained, deported or made destitute. This was through no fault of their own. Several experts and commentators have raised concerns that the EU Settlement Scheme could result in citizens living in the UK becoming similarly undocumented and vulnerable. Maike Bohn, founder of the3million, stated that “The Windrush people trusted the Home Office and many of them got deported because they were citizens but couldn’t prove it”, the Institute for Government announced that “the EU Settlement Scheme has the potential to create a situation with similar hallmarks to the Windrush scandal—but on a much bigger scale”,40 and Jill Rutter said that:
The Home Office must invest in getting the EU settlement scheme right from the start. Failure to do so could cause massive problems in years to come, on a far bigger scale than the Windrush scandal [ … ] Get it wrong and the consequences are dire.41
The Justice Sub-Committee of the House of Lords European Union Committee wrote that there are “several major risks” in the Scheme which “could plunge the UK’s immigration policy into another entirely avoidable scandal”.42
37.The difference between the respective situations for EU citizens and the Windrush generation is in the Government’s approach to assuring their legal right to reside in the UK. For the Windrush generation, the Immigration Act 1971 confirmed the legal right of Commonwealth citizens who were already present and settled in the UK when the Act came into force on 1 January 1973 to stay indefinitely in the UK. The Act also recognised the right of wives and children to join them. The difficulties these citizens have encountered in recent years stemmed from a lack of documentation evidencing their entitlements under the 1971 Act, rather than because there was any doubt about the legal rights of the group as a whole.
38.Under the EU Settlement Scheme, the Government is stating that people who have settled in the UK through exercise of European free movement rights may stay indefinitely, and benefit from associated entitlements, but this right will be conferred upon them individually through their successful completion of the time-limited Settlement Scheme. As stated by Nicole Masri in evidence to us in February 2019, the Government has chosen to make citizens’ rights conditional on the Settlement Scheme:
This is not a scheme that is conferring status on eligible individuals. This is a scheme that requires an individual to take an active step and apply in order to secure their future status in the UK.43
39.The consequence of this approach, which is known as a constitutive system, is that anyone within this class of individuals who, for whatever reason, does not acquire formal settled status—whether because they do not apply or because they are unable to comply with the Scheme’s requirements for evidence of status—may become unlawfully resident and lose the accompanying rights. Giving evidence to the Committee considering the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, Professor Stijn Smismans, Director of the University of Cardiff’s Centre for European Law and Governance, stated that “The main flaw of the design is its basic principle [ … ] the practical consequences can be dire under a constitutive system”.44
Citizens at risk under a constitutive system
40.The Government has made the commitment that “once granted, status under the scheme is secure”.45 However, given the Windrush scandal, this statement may not carry the weight the Government wishes it did, and there remain serious fears that EU citizens are at risk of losing their rights and their legal status in the UK.
41.The deadline for applying to the EU Settlement Scheme is 30 June 2021 (or 31 December 2020 in the case of a ‘no deal’ exit from the European Union). The Home Secretary told a House of Lords Committee in January 2019 that “We are confident that there is enough time for people to register”, and that “there has to be a cut-off period for everyone’s benefit, not least because as a country we can start our new immigration system on time”.46
42.The Withdrawal Agreement stated that:
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.47
However, there has been no explanation as to what will be considered as “reasonable grounds”,48 nor has there has been any official information or guidance on what will happen to citizens who, for many possible reasons, fail to apply to the Scheme and successfully confirm their status by this time. We explore those who may be at risk of being left out in Chapter 4.
43.Colin Yeo, a specialist in immigration law, told us that, as it is inevitable that there will not be full take-up of the Scheme, “there could be hundreds of thousands of people in that position, and we don’t know anything about how you would bring yourself back or regularise your position if you have missed the deadline”.49
44.Witnesses also outlined to us that eligible citizens who fail to apply to the Settlement Scheme before the deadline could become unlawfully resident. Colin Yeo said that while it is not clear that continued residence after the deadline expires would constitute an immediate criminal offence, returning to the UK after an absence would be, and individuals who become unlawfully resident could also end up committing a range of other ancillary criminal offences: for example, it would be illegal for them to work or to drive on public roads. Under measures introduced in the Immigration Acts of 2014 and 2016 as part of the then ‘hostile environment’ for illegal immigrants, employers and landlords could be penalised for employing or renting property to an unlawful resident,50 and the individual would be prevented from receiving free medical treatment.51
45.The fact that hundreds of thousands of EU citizens could become unlawfully resident, and therefore at risk of criminalisation, is a heightened issue because, as Dr Adrienne Yong highlighted to us, there is a presumption in the current Immigration Rules towards automatic deportation of foreign criminals.52 Colin Yeo told us that he was surprised with how tough the criteria were on criminality: individuals will be considered for deportation if they have had any prison sentence, however short, in the last five years, or any one-year prison sentence in the UK at any point.53
The Home Secretary’s response
46.The Home Secretary asserted that “No one is interested in anyone losing their rights”,54 and attempted to reassure us that EU citizens would not lose their rights if they did not secure their status by the Settlement Scheme’s deadline:
it is my intention, my view, that if someone for good reason—there will be exceptional cases—has missed a deadline, they do not lose their rights. [ … ] I want to be clear. I do not want to see anyone, who may have some good reason for why they have missed the deadline, feel in any way that they are unwelcome.55
47.He told us that “I don’t think in any way they should be considered unlawful”, and was reluctant to use the term unlawful “because their status will clearly be very different to someone who has illegally entered the country”.56 However, he did accept that “If they haven’t registered in the scheme prior to the deadline it would be against the immigration rules”.57
48.When we questioned him on outcomes for those who miss the deadline, the Home Secretary failed to offer any concrete confirmation or reassurance. Instead, he alluded to a future process for supporting these individuals:
We need to make sure that we have a system also in place that if someone has missed that deadline for good reasons that we have a common sense, proportionate, sensible approach.
[ … ]
Although they would have missed the deadline, you would want to have a system in place where they would still have the right to register under the EU Settlement Scheme.58
However, this prospective system remains unconfirmed and vague: the Home Secretary told us that the Home Office has “not developed what would exactly happen beyond the deadline”.59
49.He later elaborated that this process might involve keeping part of the Settlement Scheme open beyond the deadline:
Although the scheme would have generally closed at the end of the deadline, aspects of the scheme or a version of it would have to be kept open for those kinds of situations
[ … ]
There is a system in place that allows them to continue to protect their rights. That, for me, means keeping the EU Settlement Scheme open for those cases in a way that continues to protect their rights.60
50.The Institute for Government called on the Home Office to:
recognise that there will be a large number of EU citizens who are covered by the Withdrawal Agreement, or the Government’s ‘no deal’ commitments, but who will not have gone through the Settlement Scheme and will not be able to prove their entitlement. This group may not have a legal right to be in the UK, but most people in the UK would recognise that they have a moral right.
[ … ]
The Home Office will therefore have to think about its approach to enforcement, ensuring that it deals with this problem in a way that commands public support. Every wrong-seeming decision that the Home Office makes will open it up to scrutiny and criticism. If the department does not get this right, the fallout could be significantly bigger than the fallout over the Windrush scandal.61
51.The Government has chosen to establish a constitutive system of registration for EU nationals who are currently resident in the UK and wish to retain their rights of residence after the UK leaves the EU. This places the responsibility on each individual to engage with the Government and to prove their entitlement to remain. The Government has also set a deadline for EU nationals to comply with this requirement.
52.It is therefore unacceptable that, having chosen this approach, the Government has failed to clarify what will happen to EU citizens in the UK who fail to confirm their immigration status through the Settlement Scheme before the deadline. In giving evidence to us the Home Secretary himself appeared unsure what their status and rights would be, only alluding to a vague system that the Home Office “would want” to have in place to support those who might need assistance after the deadline.
53.The Home Secretary’s prevarication over the word ‘unlawful’ with regards to the legal rights and status of EU citizens in the UK who fail successfully to apply to the Settlement Scheme before the deadline will not have reassured the UK’s estimated 3.8 million EU citizens. Whether they are resident legally or illegally will have serious consequences for their ability to live, work, and exercise associated rights in the UK, without risk of criminalisation and the possible consequences that might flow from criminalisation, including deportation.
54.EU citizens residing in the UK before Brexit are right to expect to be able to continue to reside in the UK. We believe Government action is necessary to avoid consequences similar to those experienced by some members of the Windrush generation. The hardship and injustice experienced by those citizens, which we discussed in previous reports, is disgraceful. The right lessons must be learned. The Home Office must therefore:
- clarify the legal rights and status of EU citizens who, for whatever reason, fail to confirm their immigration status through the Settlement Scheme by the deadline. It should do so at least a year before the closure of the Settlement Scheme;
- outline what will be considered reasonable grounds for a late submission to the Settlement Scheme;
- confirm the details of its proposed process to enable EU citizens to establish their status in the UK retrospectively; and
- clarify the legal standing of EU citizens, in the period between Brexit and the deadline, who have not yet applied to or completed the Settlement Scheme. It is vital that their rights and entitlements are clear and widely understood so that, compared with those who either have confirmed their status or who are not required to use the Scheme, they are not disadvantaged in employment, housing or medical treatment. The Government must state what their rights are, how they are to be evidenced, and what recourse individuals will have in cases of disadvantage.
A declaratory system
55.Witnesses outlined to us that “there is another way forward”, similar to how Commonwealth citizens in the UK had their immigration status legalised in the 1970s: as Colin Yeo said, “you just pass a law saying, “You are lawful. We will sort out the difficulties later, as and when they arise””.62
56.A declaratory system would operate on the presumption that EU citizens residing in the UK before a certain date (which could alter depending on whether the UK leaves the EU with or without a deal) have a legitimate and recognised residency status and just need to be provided with a document to prove it. This would, according to Luke Piper, legal adviser to the3million, “secure and protect and limit the damage” that people might otherwise experience as a consequence of the operation of the compliant environment against individuals with uncertain status.63 Colin Yeo added that under the terms of the withdrawal agreement the Government “can go as light touch as they want and there is an opportunity here and a possibility that there could be a fairer and safer way to register EU citizens in the UK”.64
57.When we asked the Home Secretary why the Government had decided not to take such an approach, by enshrining the rights of EU citizens in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, he responded, “In a word: Windrush”.65 He claimed that a declaratory approach “would lead to terrible problems”:
The challenge is this: you could push me, the Government today could take the easy route out, which sounds good, which is change the law and say, “We declare that you have all got your rights”. I guarantee to you if that happened 10 years from now there would be a Select Committee sitting there with a Home Secretary here and it would be Windrush all over again. We have to learn the lessons of Windrush and there is no point in parliamentarians saying, “Let’s learn the lessons of Windrush” and not doing anything about it.
[ … ]
No one wants what has happened to the Windrush generation to happen to anyone else. That is the reason why you have to have a system that eventually leads to some sensible way of documenting to be able to protect their rights, not to take them away.66
58.However, this assertion that the problems encountered by the Windrush generation were derived from the declaratory approach taken in the 1970s does not tally with the evidence heard and published by this Committee,67 the National Audit Office,68 or the Joint Committee on Human Rights.69
59.During debate on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, the Immigration Minister, Rt Hon Caroline Nokes MP, repeated that “a declaratory system is not the answer”, arguing that “requiring EEA nationals to apply for and receive a formal grant of status via the settlement scheme is key to ensuring that life continues smoothly for them in the future”.70 The Home Secretary had similarly previously suggested to us that a declaratory system would not work in this instance because, as the Government does not know how many EU citizens there are in the UK nor who they are, the Government requires them to self-identify.71
60.The Immigration Minister also claimed that a declaratory system for the resident population would provide them with less of an incentive to apply for status.72 However, it has been argued that a declaratory system need not necessarily discourage people from applying, as individuals would still require the proof of their status obtained through application to the Settlement Scheme.73 Official documentation or records of confirmation would be necessary to distinguish the individual as someone entitled to certain rights as resident in the UK prior to its departure from the European Union, as opposed to someone who arrived in Britain after the deadline, and would be required when applying for a job, renting property or accessing other benefits.
61.Witnesses acknowledged that a basic declaratory system could risk people being left undocumented as, if their rights are secured, many may not feel the need to apply for documents until they are needed, which could cause problems down the line. Both Colin Yeo and Luke Piper however agreed that this chance of being undocumented would be a lesser issue than being left illegally resident and without rights.74 The option of a compromise process—whereby a declaratory system confirming citizens’ rights in statute is combined with the requirement on citizens to apply to the Scheme to obtain proof of those rights—remains open to the Government.
62.A declaratory system which protects EU citizens’ rights in primary legislation would also give reassurance to citizens and increase confidence in the Government’s approach, as it is more difficult to change primary legislation: such changes would require further Parliamentary scrutiny and agreement. Currently, the Settlement Scheme functions as an amendment (Appendix EU) to the Immigration Rules, which set out immigration-related policy and practice. However, British Future reported that the Home Office has made more than 5,700 changes to the Immigration Rules since 2010, often with little or no explanation.75
Documentation
63.Part of the Home Secretary’s rationale for pursuing a constitutive system over a declaratory alternative was the Home Office’s previous experience of the Windrush scandal, and he emphasised the malign effects of the failure of government to adequately keep and preserve records and documentation for the Windrush generation:
A lack of documentation became an increasingly important issue [ … ] When someone from that generation was not documented right at the beginning in the early 1970s it became increasingly harder for them to prove their residency and so forth.76
64.It is therefore highly surprising that the Government has decided not to provide successful applicants to the Settlement Scheme with official physical confirmation of their status. EU citizens who secure their status receive only online confirmation and a digital code, while non-EU citizens who are family members of EU citizens receive a biometric residence card. The digital code— “a secure and permanent record held by the Home Office that is accessible to the holder at any time”77—must be passed on to employers and landlords, who will be required to input the code into a Home Office website to confirm the individual’s immigration status.
65.Our colleagues on the Exiting the European Union Committee raised this issue in a report in July 2018. They outlined that this system risks being confusing, increases the workload on employers and landlords, relies on their goodwill and engagement with this new and unfamiliar process, requires individuals and employers to have the necessary electronic hardware, and could result in individuals not employing or renting to someone due to the confusion and difficulties involved in proving status.78 The Justice Sub-Committee of the House of Lords European Union Committee added that a failure of the electronic system “could leave EU/EEA nationals in limbo, unable to assert their rights”.79
66.The digital system will also be unfamiliar to citizens. Marianne Lagrue, Policy Manager for the Coram Children’s Legal Centre’s Migrant Children’s Project, told us that:
We saw lots of problems with people thinking they had not had a response within a month, where actually they had not recognised that the e-mail that they received from the Home Office was actually a decision.80
Many applicants will be similarly confused by the fact that the emailed ‘confirmation’ they receive from the Home Office is not actually confirmation of their status. This is just notification of the decision; the status is only confirmed when they log into the online portal.
67.The Home Office has said the digital code system will be less resource intensive, reduce fraud and be simple to use, and is “part of moving the UK’s immigration system to digital by default, introducing a simpler and more convenient system for conducting immigration checks that is accurate, secure and reliable”. It believes that it is an improvement on hard documents which can be lost, stolen, or become out of date, is easier for visually impaired and dyslexic users, and provides more space for explanatory information than a physical card.81 It also claimed that “the service has been well-received by both migrants and employers”.82 However, we believe that the majority of EU citizens would prefer also to possess a hard document, passport endorsement, or other form of tangible official certification, as recommended by the Exiting the European Union Committee and the House of Lords’ EU Justice Sub-Committee.83
68.The Government has not provided sufficient justification for its decision not to take a declaratory approach in establishing citizens’ rights after the UK leaves the EU. The response of ‘Windrush’ does not stack up; the Immigration Minister’s assertion that “a declaratory system is not the answer” is not convincing; the requirement of citizens to apply to the Scheme so as to formally identify as an EU citizen in the UK is entirely for the benefit of the Home Office, not the individual; and a declaratory system is not incompatible with accurate documentation. If a lesson is to be learned in this case from the example of Windrush, it should be that providing adequate documentation should be considered a vital part of any such status-giving process, whether declaratory or not.
69.The Government could easily have afforded EU citizens certainty over their rights and secured their legal status by stating at the outset and in legislation that all who were here legally at the time of Brexit would remain so. They would then have been required to apply to the Settlement Scheme to obtain formal, physical confirmation of their status. Thus far, the Government has failed to mitigate the risk of thousands of EU citizens being left in an insecure legal position after Brexit, but there is still time for the Government to set this right.
70.We call on the Government to confirm in primary legislation the rights of EEA nationals who are resident in the UK at the time of its exit from the EU. These rights include the right to remain in the UK, and to retain the associated rights they have thus far been afforded. No-one should be left without rights because they have not completed the scheme. Individuals need certainty and should not be left reliant on the goodwill of a future Government to uphold non-statutory rights. Individuals should, however, be required to apply to the Settlement Scheme for documents to evidence their rights.
71.We recommend that the Government amend the Immigration and Social Security Co-ordination (EU Withdrawal) Bill so as to provide for the automatic granting of settled or pre-settled status in the UK to anyone who would, under current Government proposals, be entitled to that status under the EU Settlement Scheme on the day on which the UK ceases to be a member of the European Union. The Settlement Scheme would function as currently proposed by the Government for people who arrive in the UK after this date.
72.We also recommend that the Government provide all citizens who successfully apply to the Settlement Scheme with hard copy confirmation of their status. This need not replace the digital system but would complement it. The Government cannot suddenly impose a ‘digital first’—indeed, ‘digital only’—system upon people without giving them, employers and landlords time to adapt. People can have the best of both worlds: a more secure and forward-thinking digital system in parallel with the more familiar and reassuring hard copy. We would hope to see new applicants being routinely provided with physical certification of their Settlement Scheme status by the end of the year, with documents provided retrospectively to those who have already completed the process.
39 Home Affairs Committee, Sixth Report of Session 2017–19, The Windrush generation, HC 990, 3 July 2018
40 Institute for Government, Managing migration after Brexit, March 2019, pp12–3
41 The Guardian, ‘EU citizen registration in UK could become ‘new Windrush’, say migration experts’, 21 January 2019
44 Oral evidence taken by the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, 14 February 2019, col 132
45 Department for Exiting the European Union, Citizens’ Rights—EU citizens in the UK and UK nationals in the EU, December 2018
46 Oral evidence taken before the House of Lords Select Committee on the European Union Justice Sub-Committee, Brexit: citizens’ rights, 22 January 2019, Q33
47 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European Council on 25 November 2018, p30
48 the3million, Questions for the Home Office on ‘Settled Status’, 27 February 2019, p84
50 The 2014 and 2016 Immigration Acts introduced civil and criminal penalties for employers who knew, or had reasonable cause to believe, that they were employing an illegal worker, and for landlords or agents who rent property to a person knowing or having reasonable cause to believe that they were in breach of the immigration rules. This formed part of what has become known as the ‘hostile’ or ‘compliant environment’; Free Movement, ‘Briefing: what is the hostile environment, where does it come from, who does it affect?’, 1 May 2018
52 Q69; The Conversation, ‘Settled status for EU citizens—Q&A with law expert on what it does and doesn’t guarantee’, 22 January 2019; Department for Exiting the European Union, Citizens’ Rights—EU citizens in the UK and UK nationals in the EU, December 2018, pp3–5
54 Oral evidence taken on 27 February 2019, The work of the Home Secretary, HC 434, Q768
55 Oral evidence taken on 27 February 2019, The work of the Home Secretary, HC 434, Q804
56 Oral evidence taken on 27 February 2019, The work of the Home Secretary, HC 434, Qq773–6
57 Oral evidence taken on 27 February 2019, The work of the Home Secretary, HC 434, Q772
58 Oral evidence taken on 27 February 2019, The work of the Home Secretary, HC 434, Qq768, 776
59 Oral evidence taken on 27 February 2019, The work of the Home Secretary, HC 434, Q770
60 Oral evidence taken on 27 February 2019, The work of the Home Secretary, HC 434, Qq776, 804
61 Institute for Government, Managing migration after Brexit, March 2019, pp12–3
65 Oral evidence taken on 27 February 2019, The work of the Home Secretary, HC 434, Q759
66 Oral evidence taken on 27 February 2019, The work of the Home Secretary, HC 434, Qq767–8
67 Home Affairs Committee, Sixth Report of Session 2017–19, The Windrush generation, HC 990, 3 July 2018
68 National Audit Office, Handling of the Windrush situation, HC 1622, Session 2017–2019, 5 December 2018
69 Joint Committee on Human Rights, Sixth Report of Session 2017–19, Windrush generation detention, HC 1034, 29 June 2018
70 Immigration and Social Security Co-ordination (EU Withdrawal) Bill, 5 March 2019, col 359–60
71 Oral evidence taken on 27 February 2019, The work of the Home Secretary, HC 434, Q767
72 Immigration and Social Security Co-ordination (EU Withdrawal) Bill, 5 March 2019, col 359–60
73 Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee, 5 March 2019, col 360–1
75 British Future, Getting it right from the start: Securing the future for EU citizens in the UK, January 2019, p9
76 Oral evidence taken on 27 February 2019, The work of the Home Secretary, HC 434, Qq761–2
77 Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee, 5 March 2019, col 362
78 Exiting the European Union Committee, Eighth Report of Session 2017–19, The progress of the UK’s negotiations on EU withdrawal: the rights of UK and EU citizens, HC 1439, 23 July 2018, paras 46–9
81 Exiting the European Union Committee, Eighth Special Report of Session 2017–19, The progress of the UK’s negotiations on EU Withdrawal: The rights of UK and EU citizens: Government Response to the Committee’s Eighth Report, HC 1872, 11 January 2019, p5; Immigration and Social Security Co-ordination (EU Withdrawal) Bill, 5 March 2019, col 363;
Letter from the Home Secretary to the Chairman of the EU Justice Sub-Committee, 17 April 2019
83 Exiting the European Union Committee, Eighth Report of Session 2017–19, The progress of the UK’s negotiations on EU withdrawal: the rights of UK and EU citizens, HC 1439, 23 July 2018, para 49; Letter from the Chairman of the EU Justice Sub-Committee to the Home Secretary, 27 February 2019; Letter from the Chairman of the EU Justice Sub-Committee to the Home Secretary, 3 April 2019
Published: 30 May 2019