Implementing the Withdrawal Agreement: citizens’ rights Contents

Conclusions and recommendations

What do we know about the procedures in each country?

1.In those countries where UK nationals will be asked to make a new application for a residence status under Article 18(1) of the Withdrawal Agreement, the deadline for applications is 30 June 2021 at the earliest. Each Member State can decide if it wishes to extent this deadline, and we understand that so far seven out of the thirteen countries, where this applies, have done so. We urge other EU Member State to consider extending deadlines if it appears that a large number of UK nationals in their country have not taken the necessary steps, and there is a possibility they would lose their status. (Paragraph 16)

2.We welcome the increased information on how each Member State will choose to implement Part Two of the Withdrawal Agreement to protect citizens’ rights provisions for UK nationals in the EU. The introduction of a constitutive system in EU member countries for UK nationals has caused some concern that it may involve burdensome administrative procedures as part of the application. We welcome the remarks of the Minister that nobody should be asked for information beyond what is necessary to demonstrate that they were lawfully resident before 31 December 2020. We call on the Government to monitor the proposals in each Member State and, working with the European Commission and Member States, ensure that any such process is smooth, transparent and simple, and that any unnecessary administrative burdens are avoided. (Paragraph 20)

How will UK nationals know what they have to do?

3.It is vitally important that UK nationals resident in the EU are aware of how their situation might change and what steps they need to take to protect their rights. It is the responsibility of both the UK Government and the relevant host country to make sure that information is available and communicated to those who may be affected. This has to happen now so people can prepare, and it needs to continue into 2021 reflecting any deadline. The aim has to be to make sure as many people as possible understand what steps they have to take to ensure they do not lose their rights under the Withdrawal Agreement, and that as few people as possible lose rights inadvertently because they did not act in time or did not know they needed to act. (Paragraph 30)

4.We welcome the fact that the direct efforts of the Foreign, Commonwealth and Development Office will be complemented by those of the organisations in receipt of the National Support Fund. We know from the experience of the EU Settlement Scheme in the UK that there are going to be hard-to-reach parts of the British population in Europe and it is important that the NSF organisations emphasise supporting those who may find the procedures required challenging. Particular focus needs to be given to the British population in countries such as Spain and France, given their numbers and their geographical spread across the country, and the proportion who are unregistered. (Paragraph 31)

5.Monitoring of the effectiveness of the National Support Fund will be important. We are pleased that the Minister also thinks this is important and we support the principle set out by the Minister that those in receipt of funding must evidence their work in a series of regular reports. We commend the commitment shown by the Minister in her letter to update Parliament. We recommend that the monthly and quarterly reports are published. Furthermore, given the various procedures and deadlines in each EU Member State, and the potential need for the support to be refocussed to meet demand as it is identified, we recommend that the Government set out a strategy for how the NSF will be used to support citizens in countries or regions where demand increases and there is currently no coverage. (Paragraph 32)

How many UK nationals will this affect and where do they live?

6.It is in the interests of UK nationals to make sure that they are registered in their host state before the end of transition on 31 December 2020. The UK Government needs to focus particular attention on those countries where there is potentially a large number of UK nationals unregistered, and where registering is the first step to gain protection under the Withdrawal Agreement. (Paragraph 40)

7.Understanding the size of the population affected also helps the FCO and host countries reach their target audience. This is crucial given that they may not be aware of what they need to do in order to secure their status, and when they need to do it by. (Paragraph 41)

8.There is evidence of delays happening in some EU Member States earlier in the year when Covid-19 caused offices to close down, reduce their staffing or levels of access. The risk remains that the pandemic could lead to restrictions being reintroduced and delays to the administration of any scheme. We call on Member States to be pragmatic in how they enforce a deadline where someone seeking to comply with the procedure is delayed through no fault of their own, and we call on the UK Government to urge all EU Member State governments to be flexible and pragmatic when administrative delays have been caused by the pandemic. (Paragraph 43)

Scope for improving the situation for UK nationals in the EU

9.We welcome the proposal for a common format residence card for UK nationals so that they can show that their rights are covered under the Withdrawal Agreement, and that the card will state if the holder has acquired permanent residence. It is important that all relevant authorities recognise this card and the entitlements that it brings to the bearer. (Paragraph 48)

10.Furthermore, we welcome the Minister informing this Committee in advance of a meeting of the Specialised Committee of the UK position on the common format residence card for UK nationals in the EU. We look forward to similar examples of such transparency in future, and we call on the Minister to keep our Committee updated on progress with regard to Member State governments recognising the common format residence card for UK nationals. (Paragraph 49)

11.We welcome discussions in the Specialised Committee regarding the possibility of combining the rights under the Withdrawal Agreement with the mobility rights of a third country national in EU law and urge the Government and the EU to support measures that would ensure that UK nationals with five years residence would not be treated less favourably, in terms of mobility rights, than third country nationals with five years residence. (Paragraph 52)

12.The position of the UK and the EU on non-visa visits are consistent with their respective established policies. It is less clear whether the UK, in the negotiations on the UK-EU future relationship, proposed any form of change to the EU’s 90 day in 180 day rule in order to allow UK nationals, such as those who own second homes or have family in different European countries, to visit for more than 90 days in a 180 day period. In the absence of it being part of the negotiations with the EU, the UK Government should state whether it intends to try and negotiate bilateral arrangements with any EU Member State. (Paragraph 57)

The EU Settlement Scheme

13.The EU Settlement Scheme has been a success for the majority of applicants. The system for applying has clearly worked for a large proportion of those who have applied. For the scheme to have received over 4 million applications is a considerable achievement. (Paragraph 73)

14.We welcome the fact that such a large proportion of those who have applied received a grant of status successfully. Many EU citizens are of working age, can provide evidence of residence, and have the digital skills to navigate the process. At the same time, we do not know how many people are eligible to apply and are yet to apply, because the estimates of how many EU citizens, and other people eligible to apply for the scheme, are not reliable. (Paragraph 74)

15.There is potential in using the data to show which categories of applicant are applying and receiving the correct status. We also know more about those categories who might not be applying in the numbers expected, or are applying and receiving the incorrect status, or getting refused on eligibility grounds. This is as important now as it was at the beginning of the scheme. We urge the Home Office and ONS to continue to gather data on the administration of the Settlement Scheme and publish statistics on its operation up to and beyond the deadline of 30 June 2021. The intelligence gained needs to feed back into how the Home Office targets its communications and the support it provides, including but not only, to the current grant funded bodies. (Paragraph 75)

Improvements to the EU Settlement Scheme

16.We support the call for EU citizens in the UK to be able to have the option of applying for a physical document to evidence their residency status under the Withdrawal Agreement, in addition to their digital status. (Paragraph 83)

17.From 1 January 2021, there will be a transition from the familiar passport or identity card check to an online process. This will apply in a range of situations where an immigration status check is made, be it employers, landlords, public service providers such as the DWP and the NHS. But it will only be for EU citizens. For non-EU citizens, the same checks will be carried out in a way that is already known and familiar. We urge the Government to publish guidance as soon as possible, aimed at all those who currently carry out immigration status checks and who may be faced with having to carry out parallel procedures—digital for EU citizens and physical checks for non-EU citizens—from 1 January 2021. (Paragraph 84)

18.We recommend that the Government set out how it intends to monitor the introduction of the digital checks and that a review of its implementation should be published within six months of 30 June 2021. (Paragraph 85)

19.EU citizens coming to the UK did not expect to have immigration controls imposed on them afterwards, so alongside explaining to them that they need to apply, there needs to be better communication of the difference between Pre-Settled Status and Settled Status, and what options are available if awarded Pre-Settled Status. In addition, the Government should ensure that those granted Pre-Settled Status are clearly informed that they need to reapply at a date in the future. Again, any interaction with the system requires the applicant to have the documents they used for their original application. There will need to be support in place for people whose Pre-Settled Status matures over the next five years. (Paragraph 93)

20.The Government should explain how it will remind EU citizens with Pre-Settled Status when they have acquired five years residence and can make a new application to upgrade to Settled Status, and how much notice they will give. Reminding people to upgrade is preferable to thousands of EU citizens inadvertently becoming unlawfully resident in the UK because their Pre-Settled Status expired, and they were unaware that they needed to take further action. The Government should also be flexible and pragmatic in cases where it has not managed to make confirmed contact with a person who has Pre-Settled Status, to remind them to apply for Settled Status. In such cases such individuals should be given reasonable additional time to apply. (Paragraph 94)

21.The Government should produce a more detailed analysis of the significant proportion of applicants for Settled Status who are instead only being granted Pre-Settled Status. An equality impact assessment should be carried out to clarify how many long term residents, with gaps in employment in the last five years, for example due to caring duties, are affected and ensure that the current system is not resulting in women being disproportionately granted only Pre-Settled Status. In addition, we recommend that the Government update and publish its Policy Equality Statement for the EU Settlement Scheme. (Paragraph 95)

22.Some applicants are likely to face difficulties applying for the scheme, be it through language barriers, lack of support to complete the application, or because they are unable to source the documentary evidence to support their application. There are, by definition, people who are going to be hard-to-reach, possibly through remoteness and social isolation. These factors may combine, such as for elderly people living in rural areas where sources of advice are limited. Communications and support to such groups need to be enhanced as the deadline approaches. This can be through intermediaries, and the Government needs to learn from the experience of NGOs who are already working to try and support those marginalised and vulnerable groups. (Paragraph 102)

23.It is vitally important the Government publish the guidance for case workers on late applications. The Home Secretary said she would do so in April 2020. We hope that the default approach would remain to look for reasons to grant status rather than not grant status. (Paragraph 109)

24.The risk of refusing a large number of applications after the deadline, where the applicant would pass all the criteria and be granted status if they had applied one month earlier, would simply create a group of people living in the UK unlawfully. This would be unacceptable for UK nationals living in the EU and we urge Ministers not to apply an unduly restrictive approach in the UK. (Paragraph 110)

25.The Home Office must prepare for the possible increase in applications leading up to the deadline and prepare accordingly. This includes ensuring that certificates of application are sent out promptly, so that people are not put in a no man’s land where they are unsure of their position and unable to explain their status until they receive a decision. (Paragraph 111)

Grant Funding Support

26.The Home Office’s grant funding to organisations providing support and advice to EU citizens has been crucial in reaching out to a wide range of communities and individuals in particular circumstances. If there is an increase in applications leading up to the 30 June 2021, particularly among those with complex cases, then such organisations are going to need continued support beyond the end of this financial year. The Government should consider how it could target support to organisations, including but not solely the Grant Funded Organisations, that are able to provide the necessary legal advice. The Government should provide grant funding up to and beyond the deadline of 30 June 2021 and make clear that it will do so in good time before the end of the current financial year. (Paragraph 114)

After 1 January 2021

27.The UK will leave the transition period at the end of 2020 and forge its future outside the EU with its own independent immigration policy. There will be changes on 1 January 2021, some quite fundamental, for citizens across Europe. For EU citizens in the UK they will still have six months left to apply for Settled Status. This could potentially coincide with an increase in complex cases and the consequences of a digital system for demonstrating their status. For the UK nationals in the EU, thousands could be contemplating a new application process to acquire a status that protects their rights in the country which they thought was their home. The need for examining the implications of these changes has not diminished, in fact, it is likely to increase. (Paragraph 116)

Ongoing monitoring and Parliamentary scrutiny

28.We ask the Government to provide an update on progress for the Independent Monitoring Authority to be fully operational on 1 January 2021, and how it intends to communicate to EU citizens the Independent Monitoring Authority’s existence, its role and how it can support them. We expect the Independent Monitoring Authority to make its reports public and on its own terms. (Paragraph 121)

29.Many of the matters we have discussed in this report relate to what needs to be done now, but others may either only arise or intensify after the transition period ends. There needs to be continued monitoring of EU citizens’ rights in the UK and effective oversight beyond 31 December 2020. That includes the Independent Monitoring Authority being accountable to Parliament. (Paragraph 122)

30.As we have seen this year, the Joint Committee—with representatives from the UK Government and the European Commission—is a powerful and influential body. It, along with its specialised committees, will have an important role in how the citizens’ rights elements of the Withdrawal Agreement are implemented. Unfortunately, its internal working is not transparent. This makes it difficult to understand what it is being asked to decide on or the outcome of those decisions. We consider this to be wholly inadequate. There needs to be a better formal structure for Parliamentary scrutiny of the Joint Committee, and we intend to return to the question of its transparency in the future. (Paragraph 123)

Published: 20 October 2020