Citizens’ Rights Contents

Chapter 3: EU citizens’ rights in the UK

Background: the EU Settlement Scheme

54.The UK’s EU Settlement Scheme (EUSS) requires eligible citizens who have lived in the UK for five years or longer to apply for settled status, which in turn allows them to remain in the UK indefinitely. Eligible citizens who have lived in the UK for fewer than five continuous years are given ‘pre-settled status’, which gives them a further five years temporary leave to remain in the UK; once they have reached five years’ continuous residence they can apply for settled status.

55.The EUSS is run by the Home Office. A test phase of the Scheme began on 28 August 2018 and it was launched in full on 31 March 2019, well before the entry into force of the Withdrawal Agreement on 31 January 2020. The Scheme has therefore been open for longer than any of those in EU member States with constitutive systems (the earliest of which opened in February 2020, and some of which did not open until January 2021).44 The deadline for applications under the EUSS was 30 June 2021, the earliest date permitted under the Withdrawal Agreement. The legal requirements of the EUSS are set out in full in Appendix EU of the Immigration Rules.45

56.The EUSS checks three basic requirements: identity, UK residence, and suitability. The ‘suitability’ requirement covers matters such as criminal conduct leading to a deportation order, or false information provided during an application. According to Home Office statistics, of the 55,590 applications refused in the period to 31 March 2021, more than 99% were refused on eligibility grounds and fewer than 1% were refused on suitability grounds.46 The Government had also originally intended to charge a £65 fee for registration, which is permitted under the Withdrawal Agreement, but this was waived in 2019.47

57.The Home Office releases monthly and quarterly statistics on the EUSS. As of the deadline on 30 June 2021, there had been 6,015,400 applications in total, of which 5,446,300 had been concluded. Of those applications concluded, 52% were granted settled status and 43% were granted pre-settled status. Some 2% of concluded applications were refused, 1% withdrawn or void, and 1% invalid (see Chart 1).48 These figures account for the number of applications to the system rather than the number of applicants, and therefore include repeat applications (of which there were 311,870 to 31 March 2021, 6% of the total).

Figure 1: EUSS applications by outcome as of 30 June 2021

Pie chart, EUSS applications by outcome

Source: Home Office, EU Settlement Scheme statistics

58.The size of the EU population in the UK appears to have been significantly underestimated by the ONS, which put the resident EU population  in 2019 at 3.7 million although 5.4 million people have so far successfully applied under the EUSS, and the final total will be higher.49 Whatever the precise figure, the resident EU population in the UK is far larger than the estimated UK resident population in the EU as a whole (around 1.1 million),50 let alone that in any one Member State.

The overall implementation of the EUSS

59.Witnesses were broadly positive about the implementation of the EUSS, and agreed that the overall number of applications was “impressive”.51 The UK’s Independent Monitoring Authority (IMA) said that “processing this volume of applications is a considerable achievement by the Home Office”,52 while Fiona Costello, Research Associate at the University of Cambridge, said: “The numbers of applications to date are a tribute to the success of the Scheme so far. To roll out a digital automated scheme to this scale in the timeframe that has been available is extraordinary.” She added, however, that “it is important not to let the big numbers overshadow those for whom the Scheme and its implementation have not worked”.53 Similarly, Kate Smart of Settled said: “The Home Office has done a remarkable job in the circumstances, helping millions of people through the system, but … there is so much more work to be done.”54

60.The EU Ambassador to the UK, João Vale de Almeida, agreed that, judged by the numbers of applicants, the EUSS had been “very good, even excellent, and went beyond our expectations”. The Ambassador also praised the Home Office’s grant funding programme and information campaigns, and added that there had been “constructive co-operation” between the EU and the UK Government, particularly the Home Office, over EU citizens’ rights.55

61.Despite this success, we were warned that the EU resident population in the UK is so large that even a highly successful rollout could leave many EU citizens without rights. Fiona Costello told us: “On the general estimated population figures of between 3.6 million and 5 million … even if 1% of people do not apply to the Scheme, that would be 30,000 to 50,000 people.” Similarly, we heard from the IMA that “it is inevitable in an exercise of this scale mistakes will be made”.56

62.The uncertainty over the number of eligible citizens gives rise to corresponding uncertainty over the number who failed to apply on time. Monique Hawkins, Policy and Research Officer for the3million told us: “By definition, we cannot know what the numbers are,”57 while Madeleine Sumption, Director of the Migration Observatory, said that Home Office figures “do not tell us whether the programme has been ‘successful’ … they tell us nothing about how many people have not yet applied.”58 Ambassador Vale de Almeida also described the EUSS as a “moving target”, due to the uncertainty over the eligible population.59

63.The Home Office states on its website that its application statistics “cannot be directly compared with estimates of the resident population of EU/EEA nationals in the UK. [The] figures … include non-EEA national family members and eligible EEA nationals not resident in the UK”.60 Home Office internal analysis in March 2019 estimated that the number of EEA citizens resident in the UK and their family members eligible to apply to the EUSS by the end of the transition period would be between 3.5 and 4.1 million, but this has been significantly outstripped by the number of applications to date.61 Kevin Foster MP, Home Office Minister responsible for the EUSS, acknowledged the difficulties in estimating the size of the eligible population, but added: “All our estimates, projections and work engagement we undertake indicate that the vast majority have now applied and have secured status.”62 As discussed in paragraphs 117–119, EU citizens in the UK who have “reasonable grounds” for missing the deadline may submit a late application to the EUSS.

64.Better data have been gathered and published in relation to the number of eligible children in care and care leavers. Data collected by the Home Office from local authorities, aimed at identifying how many children in care and care leavers were eligible for the Scheme, highlighted that as of late April 2021 3,660 young people were eligible, of whom only 67% had applied.63

65.Witnesses highlighted other strengths and weaknesses of the EUSS. Fiona Costello said that the “ethos of granting status, rather than not granting status, has been very much welcomed by front-line advice agencies”. Monique Hawkins, on the other hand, said she had “a couple of concerns” about transparency and data sharing.64

66.The EU Rights and Brexit Hub, a legal action research project based at the University of York, told us that their work with local authorities and charities “provides a mixed picture of the Home Office’s roll out of the EUSS”. While the Home Office had been “very successful in communicating about the EUSS to different stakeholders”, it had “tended to approach its role in the EUSS roll-out as one of providing information … rather than proactive co-ordination”. The EU Rights and Brexit Hub also argued that Home Office collaboration with the Department of Work and Pensions (DWP) to identify the contact details of individuals subject to a residual residency test, “Only commenced in April 2021 … [which] was too late, creating a risk of last minute and late applications, and could patently have begun earlier.”65

67.Kevin Foster MP told us that the Home Office had worked closely with other departments, such as Her Majesty’s Revenue and Customs (HMRC) and the DWP, as well as community groups and local authorities, in order to reach EU citizens and process EUSS applications. He concluded:

“Without the partnership-working we have had with other government departments, with local government and community stakeholders more widely, we certainly would not have had the type of success we have had in the sheer volume of applications we have received and managed to decide on.”66

68.The Cabinet Office Minister and UK co-chair of the Withdrawal Agreement Joint Committee, Lord Frost, said:

“We have tried to be as clear as we possibly can that EU citizens here are our friends and neighbours, and we want them to stay. The huge number of registrations there have been with the Scheme already show that the Scheme is working well.”67

69.The number of concluded applications to the EU Settlement Scheme is a considerable achievement by the Home Office. There are many more EU citizens in the UK than there are UK citizens across the EU, and the UK Government faced a huge challenge in encouraging and processing over 5.4 million applications ahead of the deadline. We also welcome the Home Office’s approach of looking for reasons to grant status, rather than reasons to refuse.

70.Some EU Member States have constitutive systems and others have declaratory systems. We note that the UK’s EU Settlement Scheme has been open for nearly a year longer than the earliest constitutive scheme opened in the EU.

71.At the same time, because there are so many EU citizens in the UK, failure by even a tiny percentage of the total eligible cohort to apply may mean thousands of individuals slipping through the cracks. The issues these individuals face will remain an ongoing challenge for the Government.

72.We are concerned that the relatively low numbers of applicants to the EUSS among children in care and care leavers may also be reflected in other vulnerable groups, who, by their nature, may be difficult to reach. While the lack of comprehensive data makes it difficult to know for certain how many EU citizens failed to apply on time, the Home Office should continue to do all it can to reach those who missed the deadline, especially vulnerable persons, and encourage them to make a late application.

Verification of rights under the Withdrawal Agreement

73.Notwithstanding the Government’s significant achievement in rolling out the EUSS, we heard concerns over the legal status conferred under the Scheme, in particular over whether it is aligned with the rights set out in the Withdrawal Agreement. Monique Hawkins described a “fundamental design flaw” in the Scheme: “Some people who get settled status are covered by the Withdrawal Agreement; others are not. Likewise, there are people who are covered by the Withdrawal Agreement who are not able to get proof of being in scope. There is a bit of a mismatch at the heart of it.”68

74.Professor Charlotte O’Brien of the University of York explained that this mismatch arises because the Withdrawal Agreement and the EUSS have “different eligibility conditions”.69 The UK has been “more generous”, by allowing anyone who can evidence residence and ID to apply without having to prove that they were exercising EU free movement rights when they arrived in the UK. But the result of this generosity is that “both those who are in or out of scope of the Withdrawal Agreement are eligible for status” and “there is no way of telling them apart”.70

75.This could give rise to a difficulty, because as well as protecting the right to reside, the Withdrawal Agreement protects certain additional rights for eligible citizens which are not automatically afforded to those who hold settled status. Instead, there is now a ‘true cohort’ and an ‘extra cohort’ who have different rights, but are indistinguishable on the basis of their EUSS status. For example, the Government subjects individuals with pre-settled status who apply for universal credit to a “complex test to see whether they were exercising treaty rights on 31 December 2020”, because their pre-settled status is not treated as evidence of rights under the Withdrawal Agreement.71 The3million suggested that this problem could be rendered “moot” by ensuring that everyone with settled or pre-settled status had “identical rights, without further tests down the line to determine true/extra cohort membership”.72

76.Professor Charlotte O’Brien argued that if the EUSS and the Withdrawal Agreement are different in scope then this “opens up different avenues of enforcement—with some EU citizens benefiting from input and support from the Independent Monitoring Authority; and from input from the CJEU, and others excluded”. Professor O’Brien argued that this could have a “disproportionate and detrimental impact upon vulnerable EU citizens,” who are more likely to be members of the so-called ‘extra cohort’.73

77.Witnesses even suggested that this mismatch could be problematic in terms of the UK’s obligations under the Withdrawal Agreement, pointing out that under Article 18 a new residence status under a constitutive system should “verify whether the applicant is entitled to the residence rights set out in this Title”.74 Professor Charlotte O’Brien asked: “If the EUSS does not confer the rights under that title, then we have to ask—what does?”75

78.The EU also expressed concerns about these matters in the joint statement after the meeting of the Specialised Committee on Citizens’ Rights on 17 June 2021:

“The EU highlighted their concerns as regards the compatibility with the Withdrawal Agreement of the UK’s EU Settlement Scheme in not making a clear distinction between the beneficiaries of the Withdrawal Agreement (the so-called ‘true cohort’) and non-beneficiaries who are granted status under UK immigration law (the so-called ‘extra cohort’), despite not exercising a qualifying Treaty right.”76

79.The Minister, Kevin Foster MP, confirmed to us: “The EUSS’s eligibility criteria are very different from the specific rules around the free movement regulations … because it is much more generous.” He stressed, though, that “no one has any lesser rights than they would be entitled to under the Withdrawal Agreement” and dismissed the EU’s concerns on this issue as a “philosophical point”.77

80.We welcome the Government’s decision to take a more generous approach to eligibility for the Settlement Scheme than the Withdrawal Agreement requires, but this has potentially led to a misalignment between status under the Settlement Scheme and rights under the Withdrawal Agreement. There may be a risk of legal uncertainty for some EU citizens if they cannot use their EUSS status to evidence their rights under the Agreement. Were this to be the case, it could have adverse consequences for those affected.

81.We recognise that there is a difference of opinion between the UK and the EU over this issue, and call on the Government to seek a resolution via the Specialised Committee as a matter of urgency.

Naturalised British citizens, family reunion rights and the EUSS

82.We also heard concerns about naturalised British citizens and their inability to confirm via the EUSS their rights to be joined by other family members. These so-called Lounes dual-nationals, named after the CJEU judgment in which their situation was discussed, exercised their EU free movement rights to come to the UK, became UK citizens, and as a consequence are now unable to access the EUSS as the means by which to confirm their Withdrawal Agreement-based rights.78

83.The3million explained that “Lounes dual nationals have the right under the WA [Withdrawal Agreement] to be joined in the UK by certain family members”. However, because they have now become naturalised British citizens, they “are barred from obtaining evidence of their WA rights, as the EUSS does not allow applications from citizens who hold British nationality”.79 Although naturalised UK citizens already have a right of residence, they may need to be able to prove their WA rights if they want to be able to bring family members to the UK.

84.The Home Office caseworker guidance notes acknowledge that so-called Lounes dual nationals have rights under the Withdrawal Agreement to be joined in the UK by certain other family members, but only explains the application process for the relevant family member.80

85.According to the terms of the Withdrawal Agreement and the Court of Justice’s decision in Lounes, EU nationals who exercised their free movement rights, naturalised as British citizens, and satisfy the relevant criteria, enjoy family reunion rights. Although the Home Office guidance acknowledges the position of so-called Lounes dual nationals, we are concerned that because British citizens cannot access the EUSS, these individuals will find it hard in future to evidence these important rights. We invite the Government to set out how it intends to address this problem in its response to this report.

Vulnerable EU citizens

86.The former EU Justice Sub-Committee highlighted that some EU citizens in the UK are more vulnerable to losing their rights than others (both in terms of missing the deadline and struggling to evidence their status). In a letter to the Home Secretary in February 2019, its Chair, Baroness Kennedy of The Shaws, noted that “a theme throughout these issues [with the EUSS] is whether the Government is doing enough to engage with vulnerable EU/EEA nationals resident in the UK”.81

87.In February 2020 the EU Justice Sub-Committee heard evidence from three organisations—Crisis, Rights of Women and the Refugee and Migrant Children’s Consortium—who had been supporting vulnerable applicants (respectively, the homeless, vulnerable women, and children in care).82 In a subsequent letter to the Immigration Minister, Baroness Kennedy’s successor as Chair, Lord Morris of Aberavon, wrote: “Our concern is that for those with less straightforward lives, including some of the most vulnerable in our society, the [settlement] Scheme does not appear to be suited to (or sufficient for) their needs.”83

88.A report by the Migration Observatory in 2020 identified four categories of vulnerable people who were at risk of missing the 30 June deadline:84

(a)Those who were unaware that the Scheme exists, or that they needed to apply for it: for example, very long-term residents, those with permanent residence, or EU citizens born outside the EU.

(b)Those who already faced social exclusion or reduced autonomy of some kind: for example, children in care and care leavers, victims of domestic abuse or modern slavery, the homeless, and Roma communities.

(c)Those who struggled to navigate the application process: for example, because of language barriers, mental health problems, or low levels of digital literacy.

(d)Those who lacked evidence to prove their eligibility: for example, those without bank accounts or proof of address.

89.We received considerable evidence on the issues facing vulnerable groups. Fiona Costello told the Committee that these included “those who are digitally excluded, those who lack evidential paperwork, those who … have found it difficult to prove their residency … and those who are simply unaware of the Scheme”.85 The AIRE Centre, a legal charity which receives Home Office grant funding to support vulnerable groups, cited “victims of abuse, those who may lack mental capacity, the homeless, and children in care/care leavers”, and criticised a “lack of any adequate proactive steps to identify and assist those whose care and support needs … meant that they cannot apply for themselves”.86

90.The IMA said they had heard “increasing concerns about a lack of awareness and an inability to navigate the process” by vulnerable groups. They added that it will be difficult to know the impact of this, as “there is a lack of data about how many individuals are in these cohorts”.87

91.Another potentially vulnerable group is made up of those with EEA permanent residency. Fiona Costello told us there had been a huge increase in applications for permanent residency in the wake of the referendum, and that these people “may not realise that that permanent residency is now defunct and that they need to reapply under the EU Settlement Scheme”.88 Kate Smart agreed: “People think that it [EUSS] does not apply to them because … [they think] if they have a permanent resident’s card, it is just that—a permanent resident’s card.”89

Older adults and digital exclusion

92.Witnesses told us that older EU citizens were particularly vulnerable to losing their rights, especially those unfamiliar with digital technology. New Europeans UK, a charity supporting EU citizens to access their rights, told us they were “worried” about older EU citizens “both in terms of exercising their rights … and in respect of accessing their digital EUSS status”. They said they had “encountered many individuals who have no mobile phone, no digital access and inappropriate or no documentation”.90

93.New Europeans UK therefore gave us the following warning: “We believe there are a significant number of older Europeans who have still not applied. We are particularly concerned for Italian nationals who came post war … many of whom are now pensioners.”91 Home Office statistics show that just 2% of EUSS applications by 31 March 2021 had come from over-65s, but it is not clear whether this is an accurate reflection of the eligible population.92 Ambassador Vale de Almeida highlighted these figures, adding that the EU was “concerned” about them.93

The effect of the COVID-19 pandemic

94.We also heard that existing vulnerabilities had been exacerbated by the COVID-19 pandemic. Fiona Costello explained: “If your barrier to making an application to EUSS is your digital skills, you will struggle to access … support that went remote and digital.”94 Similarly, the AIRE Centre said that lockdowns had “limited the ability of organisations to provide in-person appointments and direct support to clients, which are particularly helpful/needed when assisting vulnerable groups to apply using the relevant technology”.95

95.An alternative view of the effect of the pandemic was put forward by the EU Rights and Brexit Hub, which said it had had a “mixed effect” on the roll-out of the EUSS to vulnerable groups, with positives as well as negatives. They acknowledged that “the end of face-to-face support significantly impedes access to the online system for applicants with literacy, disability or technological barriers”. But they also said that the pandemic had “strengthened local community networks and enabled local authorities to gain access to groups they did not previously have contact with”, such as homeless individuals who were housed in empty hotels.96

96.COVID-19 has also disrupted EU embassy and consular services in the UK, to the detriment of those needing to acquire or renew identity documents. Monique Hawkins explained, “In order to apply using the app, you need valid ID.97 There has been a real problem with being able to get appointments with consulates and embassies to renew passports.”98 The IMA also said that difficulties accessing EU embassies during COVID-19 had been “a theme in complaints we have received”.99

Government support for vulnerable persons

97.The Government has put in place provisions to help vulnerable people. In 2019 it awarded £9 million of funding to help vulnerable EU citizens, with a further £8 million subsequently announced for the 2020/21 financial year, and an additional £4.5 million announced in February 2021.100 This funding supports 72 organisations working with vulnerable or hard-to-reach individuals, and currently runs until 30 September 2021.101

98.The Home Office Minister, Kevin Foster MP, emphasised that his Department was focused on “the quality … rather than just the quantity” of assistance from these organisations, and was therefore not setting numerical targets for assisting applications, as grant-funded organisations might need to “put in more time per case”.102 He also highlighted that the Home Office had been able to reach vulnerable groups by collaborating with other bodies, such as local authorities with respect to children in care.103

99.Witnesses also raised questions over the longevity of this Government funding. The EU Rights and Brexit Hub cited “the long-term costs of supporting EU citizens with late applications and the need for upgrading from pre-settled status to settled status over the next five years” as reasons why long-term funding may be needed.104 Kevin Foster, however, told us that when the current funding expires, the Home Office will “work with the grant-funded organisations to see what demand there is … then we will take a decision on whether we need to fund beyond that”.105 He also suggested that in the future, “with the sheer numbers who have now applied, we expect … [it to be] more common that we are supporting those with status, and to access that, rather than supporting them in making an application”.106

100.The Home Office’s guidance to caseworkers on dealing with late applications includes a list, which is “not exhaustive”, of potential “reasonable grounds” for a late application. These are aligned with the issues facing particular vulnerable groups (children in care, those lacking in physical or mental capacity, and victims of modern slavery or domestic abuse are all cited, as are “other compelling practical or compassionate reasons”).107 Monique Hawkins told us, though, that this approach still does not take into account the difficulties faced by the vulnerable, due to the lack of a legal safety net for late applicants (discussed in more detail in paragraphs 137–146).108 The IMA observed that the vulnerable groups will be “a key test for the way in which the Home Office deals with late applications to the Scheme”.109

101.Some EU citizens living in the UK are particularly vulnerable to losing their rights, such as older adults, those with now defunct EEA permanent residency, and those unfamiliar with digital technology. These vulnerabilities have, in many cases, been exacerbated by the lack of in-person support and services during the pandemic. How many of these individuals missed the deadline, and the Government’s response to their circumstances, will be key indicators of the Settlement Scheme’s success.

102.We are concerned by the low proportion of applications from older EU citizens, who are more vulnerable to digital exclusion: just 2% of all applications to the Settlement Scheme are from over-65s. Some witnesses suggested that this may indicate low take-up. We call on the Government to explain whether it shares these concerns, and if so, what steps it intends to take to ensure that over-65s are supported in making late applications.

103.We welcome the Government’s support for vulnerable groups via grant-funded organisations. While this funding is currently set to expire at the end of September 2021, we anticipate that the problems facing vulnerable EU citizens will persist for longer. We welcome the Minister’s indication that the Government will consult on extending this funding further. In our view it should be, and we request that the Government update Parliament on the outcome of those consultations as soon as possible.

104.Vulnerable EU citizens are classed as such because they were at risk of missing the 30 June deadline. The best way to protect the rights of the vulnerable is to ensure protections are in place for late applicants. While we welcome the inclusion in current Home Office guidance of a number of vulnerabilities as potential “reasonable grounds” for late applications, we remain concerned that these protections may not be sufficient. Greater clarity and more comprehensive legal safeguards may be needed.

The 30 June 2021 deadline

105.The deadline for applications under the EUSS was 30 June 2021, the earliest date permitted under the Withdrawal Agreement.110 In evidence taken ahead of the deadline, several witnesses suggested that there was a case for an extension. Monique Hawkins, for example, said that while “you need a deadline to encourage people to take the step to make the application”, it would be “sensible” to have an extension of six months to a year given “the unique circumstances of COVID”.111

106.At the same time, witnesses warned that extending the deadline would not solve all the problems, and that it was more important to have protections in place for those who miss the deadline. Monique Hawkins said that extending would mean “kicking the same problems down the road, in a sense” and stressed the need to “put in place the legislative protection” for late applicants “regardless of what the deadline is”. Kate Smart added that “if you have a 12-month extension, there will still be some people who miss that deadline … there will need to be a safety net for people”.112

107.In evidence given on 22 June 2021, the Minister, Kevin Foster MP, confirmed that the Home Office would not be extending the deadline, citing the “sheer volume” of successful applications to date and the fact that the UK’s Scheme had been open for a longer window than equivalent schemes in the EU.113

108.The Government chose not to extend the 30 June deadline for the EUSS. Although we heard support from witnesses for a short extension, this would not in itself have resolved the fundamental issues facing many EU citizens in the UK. Now the deadline itself has passed, putting appropriate protections in place for those who have missed it is all the more important. In line with the criteria in Article 18 of the Withdrawal Agreement, simply missing the deadline of 30 June 2021 must not result in the automatic rejection of an application.

Application backlog

109.As of the 30 June 2021 deadline, Home Office statistics show that 6.02 million applications had been made, and 5.45 million concluded.114 The gap of around 550,000 between these two figures suggests that there was a significant backlog in processing applications in the run up to the deadline, leaving thousands of EU citizens who applied on time but did not receive a decision until after the deadline (and in some cases may still have not received a decision).

110.The IMA told us that “delays with the processing of applications is a recurrent theme in many of the complaints we receive”.115 The AIRE Centre, which had seen a “significant rise” in requests for assistance ahead of the deadline, were “concerned that for vulnerable applicants, the processing of outstanding applications ahead of the deadline does not amount to a smooth, transparent or simple process”.116

111.The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (the Temporary Protection Regulations) provide legal safeguards for those whose applications were pending as of 1 July. Those who were exercising a right to reside under the Immigration (EEA) Regulations 2016 at the end of the transition period, continue to do so, and applied to the EUSS before the deadline retain the right to reside in the UK. The Minister, Kevin Foster MP, told us: “Anyone who applies before the deadline will have their rights protected while the application is pending. That is set out in law.”117

112.Nonetheless, we heard concerns that the requirement under the Temporary Protection Regulations to check right-to-reside criteria at two different points in time creates “a substantial administrative burden”, as well as “uncertainty” for those who are out of scope of the 2016 EEA Regulations. The EU Rights and Brexit Hub warned of a “potentially stark difference in outcome” between those who received a decision before the deadline and those who did not, which “creates an arbitrary difference in treatment beyond the applicants’ control”.118

113.There is also a question over how those awaiting a decision prove their rights. Individuals who applied but are awaiting a decision should receive a “certificate of application”. However, we heard that this “is proof that they have applied … not proof that they have status.”119 Fiona Costello warned that this could lead to difficulties: “If a person was about to start a new job or move to a new house, an employer or landlord might be nervous about accepting their certificate of application and might err on the side of caution not to, because it is not proof of status.”

114.The Home Office’s caseworker guidance states that a certificate of application “does not confirm that the person has immigration status in the UK”, and the Government’s guidance for applying to the EUSS states that “you cannot use the [application certificate] letter itself to prove your status”.120 On the other hand, Kevin Foster told us that an individual’s certificate of application, “When used alongside the Home Office checking system … proves their right to work, rent housing and apply for eligible benefits.”121

115.Most EU citizens who applied before the deadline but have not yet received a decision have their rights protected in law until a decision is made. This is welcome, given the apparent backlog in processing applications just before the deadline. We are concerned over the extent to which certificates of application can be used to prove rights in practice (given that these certificates do not confer status), and the uncertainty for those who may be out of scope of the 2016 EEA Regulations. We call on the Government to provide clarity on these points.

After the deadline: late applications

116.In theory, EU citizens who did not apply before the 30 June deadline lost their right to residency overnight, along with their right to work, rent accommodation or claim benefits in the UK.

117.Article 18 of the Withdrawal Agreement, though, requires the Parties to accept late applications where there are “reasonable grounds” for the individual missing the deadline.122 The Home Office’s online system for the EUSS remains open for late applications if the applicant can demonstrate that they have reasonable grounds.123 Successive UK Governments have also stated that, as a matter of policy, they will take a “flexible” approach to applicants who miss the deadline.124

118.There was little clarity over what this “flexible” approach would look like in practice until April 2021, when the Home Office published internal guidance for caseworkers. Although the applicant is required to explain the reason for their failure to meet the deadline, Home Office caseworkers are encouraged, “for the time being”, to “give applicants the benefit of any doubt,” and, as with on-time applications, to look for reasons to grant status, not reasons to refuse.

119.As discussed in paragraph 100, the guidance includes examples of “reasonable grounds” which take account of particular vulnerable groups.125 The Minister, Kevin Foster MP, was keen to stress that these examples are “non-exhaustive”.126 He also told us that there would be “a second process after 30 June when we … write again to encourage people to apply”.127

120.Immigration enforcement officers who encounter a person without settled status after the deadline who may have been eligible for settled status will provide the person with a written notice, giving them an opportunity to make a valid application within 28 days. During that period the person will be exempt from further immigration enforcement action.128 The AIRE Centre warned that “protection against removal does not protect individuals from the raft of other Hostile Environment policies”, such as losing the right to work, rent, hold a bank account or claim benefits.129 We note, though, that Government guidance on right-to-rent checks states that landlords should encourage tenants without status after 30 June 2021 to apply within the 28 day period—offering some protection against immediate loss of rights in this area at least.130

121.Ambassador Vale de Almeida told us on 24 June that the position of late applicants was “maybe the most important” concern the EU had about the EUSS, although he added that the Minister had offered “good feedback, which I am sure will materialise … that these citizens will be treated in a fair way”.131

Issues with the Home Office guidance

122.The new caseworker guidance featured prominently in the evidence we received. There was praise for the guidance in some quarters, with the IMA describing it as “pragmatic and inclusive”. Equally, there were also concerns and recommendations for improvement.

123.A number of witnesses were concerned that the “benefit of any doubt” approach was described as applying only “for the time being”. Kate Smart said that it was currently “unclear how long that [approach] might last”.132 The AIRE Centre recommended that “the approach of giving late applicants the ‘benefit of the doubt’ should apply indefinitely”.133

124.Kevin Foster MP offered some reassurances: “If it was very obvious that someone was here in the early part of 2021 and stated they had been here from the very late part of 2020, we would be likely to give the person the benefit of the doubt on a more permanent basis.”134 He gave the example of “a child aged five in care today whose authority did not apply for them. If at 18 they go for their first job… we would still regard that as a reasonable ground for a late application to the EUSS even though it is 13 years later”.135

125.The guidance states, on the other hand, that “in general”, the later an application is after the deadline, the harder it will be to argue that there were “reasonable grounds” for missing the deadline. The AIRE Centre said it was “unclear why such a general presumption needs to be imposed”.136 In explanation, Kevin Foster highlighted the need to balance fair treatment of EU citizens against the possibility of the EUSS being a ‘back door’ for new arrivals: “The longer we move away from the deadline, the greater the chance that there are people who were not here before 31 December.”137

126.Witnesses stressed the need for consistent implementation. The IMA told us that it was not clear “how the Home Office will ensure consistency in decision-making when case workers have discretion”.138 Kate Smart said the approach to late applications needed to be “joined up” across other public bodies: “It is all very well for the Home Office to say that it is taking a sympathetic approach, but unless that is translated across other government departments people will still fall into difficulty.”139

127.There were also concerns over the impact of the late application provisions on vulnerable groups. The EU Rights and Brexit Hub pointed to the relatively narrow allowances for pregnancy and maternity at or around the deadline, which “may” be considered reasonable grounds, but only “where a woman has a difficult child birth or where a new-born child is in need of medical treatment.”140 The AIRE Centre noted that the deadline for applications on behalf of children born after 1 April 2021 was only three months from their date of birth, and recommended that this be increased to six months.141

128.The guidance also requires caseworkers to check the immigration history of victims of domestic abuse or modern slavery, even though there is no similar requirement for other vulnerable groups.142 The EU Rights and Brexit Hub claimed that this disparity suggests “that victims should be treated with suspicion”.143

129.The AIRE Centre described measures to protect those who lack mental capacity, who may need someone to make a late application on their behalf, as “inadequate”. They warned in particular that although Home Office guidance permits applications to be made by third parties, “Organisations will be wary of making applications on behalf of people who lack capacity for fear of breaching data protection rules.”144

130.In evidence submitted ahead of the 30 June 2021 deadline, the IMA pointed out that the guidance was drafted to assist caseworkers rather than late applicants themselves, arguing that “easy to follow guidance designed specifically for potential applicants is required urgently”.145 Since the deadline, though, the landing page for applying to the EUSS online has been amended to include some guidance aimed at late applicants, setting out examples of reasonable grounds as well as the EUSS’ eligibility requirements.146

131.Citizens’ basic rights under the Withdrawal Agreement should not be affected by virtue of simply missing the June deadline. If the Government does not meet its obligations under Article 18 of the Withdrawal Agreement, we fear that this could lead to unnecessary and stressful litigation. We will continue to monitor this issue going forward.

132.We welcome the Government’s confirmation that it will continue to look for reasons to grant status rather than reasons to refuse when processing late applicants, and will be giving late applicants “the benefit of any doubt.” We also welcome that the online system for EUSS applications remains open; it should remain so for as long as late applications are possible.

133.We are concerned, however, that current guidance suggests the “benefit of any doubt” approach may only be temporary. We call on the Government to provide greater clarity on how long this approach will last, and to consider a commitment to continuing it on a longer-term basis. The “benefit of any doubt” approach is yet to be tested, and we will keep these matters under close scrutiny.

134.Although the current guidance on handling late applications is inclusive and comprehensive, the Government will need to ensure that late applications are handled consistently, not only by Home Office caseworkers, but also by other Government departments and public bodies.

135.We are concerned by the general presumption in caseworker guidance that the longer an application is after the deadline, the less likely it is to meet the “reasonable grounds” criteria. We call on the Home Office to explain the rationale for this presumption.

136.We also note the concerns expressed over the guidance on late applicants from pregnant and recent mothers, as well as new-born babies, and invite the Government to look again at these issues. In addition, we are deeply concerned that Government guidance appears to subject victims of modern slavery and domestic abuse to more intrusive immigration history checks than other groups. We call upon the Government to respond to these concerns.

The need for a ‘safety net’

137.One of the biggest problems our witnesses identified with the late application policy was that many rights—including the right to work, rent, or claim benefits—are only conferred when and if status is granted, rather than from the point of a late application. The EU Rights and Brexit Hub said that this leaves individuals with a “status gap”, during which they may be exposed to “hostile environment” policies.147

138.This “status gap” differs from issue to issue, with some public bodies taking a more generous approach. The right to free healthcare, for example, is conferred from the point of application. However, Monique Hawkins warned that this still leaves a potential gap between the 30 June deadline and the date when an individual applies. During this interim period, EU citizens could incur NHS charges, which are not subsequently written off.148

139.Witnesses therefore sought a legislative “safety net” to prevent a loss of rights for those who miss the deadline. Monique Hawkins recommended that the Government “grant people rights from the point of application, rather than from grant of status”, and that late applicants “should also have an intervening period of unlawfulness later made lawful”.149 In written evidence, the3million argued that “to not grant rights pending a decision is in breach of the Withdrawal Agreement” under Article 18(3).150

140.Other witnesses stressed that policy and guidance should be buttressed by additional legal protections to prevent an arbitrary and inconsistent approach to late applications. The EU Rights and Brexit Hub argued that “The lack of codification is key because ultimately welfare officers, landlords and employers comply with rules and regulations, not political sentiment or intent.”151 The AIRE Centre also argued that the generous treatment of those making late applications should be enshrined in law:: “[The] guidance can be subject to regular change and revision … A non-exhaustive definition of ‘reasonable grounds’ to make a late application should be incorporated into Appendix EU [of the Immigration Rules].”152

141.In addition, Fiona Costello recommended additional support for those making late applications, as “there are significant advice deserts throughout the UK [and] immigration advice is no exception”.153 Kate Smart agreed: “There need to be helplines, resolution centres and voluntary sector advice services in place for years as these situations start to unfold.”154

142.Kevin Foster MP told us that the Home Office will “have protocols in place… to accelerate decisions where we may need to make a quick decision”, for example if a late applicant needs to access health or care services or take up a job.155 In more general terms, Lord Frost also confirmed that the Government would be “extremely understanding” of late applications.156

143.The Government’s assurances that it will adopt a “generous” approach to late applications is not yet underpinned by a corresponding legal safety net for those who have missed the deadline. An individual who applies late could be left in legal limbo while they await a Home Office decision, potentially for months.

144.It is not too late for the Government to address this issue, and we have heard many specific suggestions from witnesses, including proposals to grant late applicants rights provisionally from the point when they apply, rather than from when status is granted, or to write off liabilities rising from an “interim period of unlawfulness” between the 30 June deadline and the point of application. We call on the Government to set out how it intends to resolve the legal uncertainty facing late applicants, so as to give greater certainty to vulnerable individuals.

145.The Government should also ensure funding and support for helplines and resolution centres are in place to support those making late applications over the long-term.

146.We recommend that the Home Office also continues to provide long-term statistical updates on applications to the EU Settlement Scheme until at least June 2026, when the final awards of pre-settled status for on-time applications expire. This will ensure transparency regarding the number of late applications, and thereby facilitate continued parliamentary scrutiny of the Scheme.

Proving status: the lack of a physical document

147.Holders of settled or pre-settled status may need to prove their status in the future, for example to immigration enforcement, employers and landlords. Proving status under the EUSS is a digital-only process, and EU citizens will not receive a physical document as proof of their status. Proof of status in digital form is permitted under the Withdrawal Agreement.157

148.The process for proving one’s digital settled status was described to us as a “multiple-stage process”.158 New Europeans UK explained that applicants would need to provide the details of the identity document they used when they applied, the phone number or email address they used when they applied, and their date of birth.159 Monique Hawkins drew a contrast between a typical digital document such as an airline boarding pass, which can be printed out, and the digital EUSS status:

“Imagine a locked box inside a room in the Home Office. First, you have to find your way to that room. Secondly, you have to be let into the room. Thirdly, you need a key to get into the box. Then, the key needs to work. All those things relate to the complicated steps you need to access digital status.”

149.The lack of a physical document proving status under the EUSS has prompted considerable criticism. In a February 2019 letter to the Home Secretary, the former EU Justice Sub-Committee said that the lack of a document would “disadvantage those without access to online technology”, and concluded that “the Home Office must provide physical documentation”.160 Both the Home Affairs Committee and the former Future Relationship with the EU Committee in the House of Commons have also recommended the option of a physical document.161 The lack of such a document was also cited as a reason for low confidence in rights being upheld in a recent survey of EU citizens by the IMA.162

150.The Government has responded that the digital-only EUSS is part of a wider policy of moving the UK immigration system to “digital by default”.163 In his response to the EU Justice Sub-Committee’s letter in 2019, the then Home Secretary Rt Hon Sajid Javid MP said that physical documents could be lost or stolen, and that a digital system was “simpler, safer and more convenient”.164 Nonetheless, the lack of a physical document continues to be raised as a key concern by citizens’ rights campaigners and front-line support organisations.

151.A commonly cited concern is that the digital-only status will exclude vulnerable groups. New Europeans UK said that it would be “particularly problematic for older people”, while the EU Rights and Brexit Hub said it “disproportionately disadvantages the socially, economically and technologically excluded”.165

152.EU citizens will also need to have access to the contact details with which the original application was made. The EU Rights and Brexit Hub said this was “particularly problematic for those who required support to make an application in the first place”, for example by using someone else’s contact details.166 The AIRE Centre agreed:

“The Home Office is placing an indefinite onus on the applicant to have digital skills. For vulnerable applicants without digital skills, this means that the Home Office is making them indefinitely reliant on another person with digital skills. This has obvious issues around independence, potential abuse/exploitation, and where the relationship no longer exists for whatever reason.”167

153.We also heard concerns that the complexity of proving digital status would “look suspicious to the person on the receiving end” and that this could lead to discrimination against EU citizens.168 The EU Rights and Brexit Hub described a “risk of user error from landlords or employers who, when threatened with legal penalties for non-compliance with immigration regulation, will err on the side of caution when recruiting employees and choosing tenants”.169 They added that they were “already seeing cases … where EU citizens are being denied Universal Credit due to the barriers created by the digital status checks”. In one case this had led to an EEA national with settled status not receiving Universal Credit for over three months, and becoming reliant on food banks.170

154.Many of our witnesses called on the Government to address these issues by changing tack and issuing physical proof of status, either to all EU citizens or for specific groups. Monique Hawkins said the Government’s proposals for potential COVID-19 status certificates, which involve “a document with a secure QR code that is on your phone, but you can also print it” could be repeated for the EUSS.171 Other witnesses suggested that a physical proof of status be issued either to those who are “disproportionately disadvantaged” by the current policy (EU Rights and Brexit Hub)172, or on request (the AIRE Centre).173

155.The Minister, Kevin Foster MP, confirmed that “we do not plan to issue physical documents”. He highlighted that there were “analogue fallbacks” in the form of resolution centres, which individuals could ring, and reiterated that the general direction of immigration policy is towards a digital system and that physical documents could be lost or stolen. The Minister also rejected comparisons to the Windrush scandal, which he argued had been caused by the lack of a “centralised record”, rather than the lack of a physical document.174 The Home Office has also produced guidance for EU citizens on viewing and proving their digital status.175

156.In the absence of physical status, witnesses sought action to inform relevant authorities of the digital status system. Kate Smart suggested “some sort of mass information programme to inform all the authorities, landlords, employers and the general public”.176 The IMA said it was “imperative” that “clear guidance is provided to those who will examine digital proof”, while the EU Rights and Brexit Hub called for “extensive training” for benefits officers, landlords and employers.177 There are signs that the Government has begun to take action in this area: existing guidance to employers and to landlords highlights that EUSS holders will be proving their rights digitally.178

157.While we note the advantages the Government sees in a digital-only system, we nevertheless regret that it has persisted with this approach in respect of the EU Settlement Scheme. It has done so despite repeated concerns raised by campaigners, support organisations, and the views of parliamentary committees of both Houses.

158.The lack of a physical document places an onus on EU citizens to have digital skills, and puts predominantly vulnerable individuals who are digitally excluded or required support when they submitted their original application at risk of dependency and exploitation. There is a risk that the difficulties EU citizens may face in proving their rights will undermine the Government’s considerable success in ensuring millions of EU citizens secured their status in the first place.

159.We strongly recommend that the Government offer holders of settled or pre-settled status the additional option of requesting physical documents, which would complement rather than replace their existing digital status. This could draw on the precedent of COVID-19 status certificates, and would be of particular benefit to those currently disadvantaged by digital-only status.

160.In parallel, we call on the Government to launch a major communications and training campaign to ensure that all relevant public and private sector authorities—including Border Force, welfare officers, landlords and employers—are aware of how EU citizens will be proving their status. This should build on the existing guidance to employers and landlords, which we welcome.

Pre-settled status

161.EU citizens who have lived in the UK for fewer than five continuous years are given pre-settled status, which gives them a further five years’ temporary leave to remain in the UK. Those with pre-settled status can apply to switch to full settled status once they reach five continuous years living in the UK, rather than needing to wait until their pre-settled status expires. This means they are subject to two separate five-year deadlines: for example, an EU citizen who moved to the UK in January 2017 and secured pre-settled status in October 2019 will be able to apply for settled status from January 2022, and will need to do so before their pre-settled status expires in October 2024.

162.The five continuous years test generally means that in order to qualify for settled status, the applicant must not have been absent from the UK for more than 6 months in total in any given 12-month period. Early on in our inquiry, we heard concerns that the pandemic might cause many EU citizens to have “absences that were much longer than planned”, which could disqualify them from upgrading to settled status.179

163.On 10 June, however, the Home Office issued new guidance allowing applicants to be absent for up to 12 months without breaking their continuous residence, if they can provide evidence that this was for any reason related to COVID-19. Absences of longer than 12 months are also permitted if COVID-19 prevented the applicant from returning to the UK within 12 months.180

164.We welcome the new COVID-19 exemption to the rules around permitted absences; without this, an unknown number of EU citizens could have rendered themselves ineligible for full settled status by leaving or being prevented from travelling to the UK during the pandemic. We urge the Government to publicise these changes as widely as possible.

Switching from pre-settled status to settled status

165.As of the 30 June 2021 deadline there had been 2,329,400 successful grants of pre-settled status, 43% of all concluded applications to the EUSS.181 As of 31 March 2021, 147,660 of these people had already moved from pre-settled status to settled status, suggesting that just over 2 million people with pre-settled status will need to switch to settled status if they wish to stay in the UK.182

166.Some of these 2 million will not wish to switch to settled status—though it is unclear exactly how many. As Madeleine Sumption told us:

“Based on currently available data, it will not be possible to know which pre-settled status holders are still in the UK, and thus what share successfully upgrade to settled status in practice. This is because many of the roughly 2 million people with pre-settled status are likely to leave the UK permanently or will already have done so.”183

167.The onus is on pre-settled status holders to apply for full settled status, and concerns have been raised that the absence of a systematic scheme to move people across could lead to a loss of rights. In its February 2019 letter to the Home Secretary, the EU Justice Sub-Committee concluded:

“Without a scheme to move people from pre-settled status to settled status there is a serious risk of simply postponing rejections of people’s applications for settlement rights, undermining the Government’s aim in creating pre-settled status in the first place.”184

168.The EU has also raised concerns about this matter. At the June 2021 meeting of the Specialised Committee on Citizens’ Rights, the EU “expressed concerns about the fact that EU citizens lose their residence status if they do not apply in time from pre-settled to settled status”.185 The3million went further, arguing that the Withdrawal Agreement “does not allow for loss of [Agreement] rights (once obtained and established by being granted pre-settled status) for merely the administrative error of not applying for a new settled status”.186

169.Madeleine Sumption told us that “for certain groups of people … the challenge will be greater the second time around”, because “more evidence is required for a grant of settled status than pre-settled status”.187 The EU Rights and Brexit Hub added that this higher evidential bar had “led to some receiving pre-settled status incorrectly” in the first place.188

170.Arguably the biggest challenge the Government faces is communicating individual deadlines for pre-settled status. The first grants of pre-settled status, given under the initial test phase of the EUSS in August 2018, will expire in August 2023.189 As Monique Hawkins told us, this means that the 30 June deadline was just the first of “millions of individual deadlines”.190 Fiona Costello and Madeleine Sumption both highlighted that communicating the original 30 June 2021 deadline had been “easier in theory”, as “all applicants faced the same deadline”, whereas the next phase will involve “personal deadlines for different people”.191

171.Kevin Foster MP said that the Government would issue “automated reminders” to individual citizens ahead of their deadlines for pre-settled status.192 The IMA, however, warned that this “may not be wholly effective where citizens have not kept their details up to date, do not realise they need to switch or miss their opportunity”.193 On this issue of contact details, the Minister urged individuals to keep their details up to date, and added that “in most cases we normally have an email, phone number and address, so in most cases at least one of those will still be relevant in a five-year period”.194

172.Several witnesses recommended additional support in this area. Fiona Costello highlighted that holders of pre-settled status are “likely to be more vulnerable” and stressed that “using the [community] networks that are already there to communicate with groups” was “key to getting multilingual messages out there about the deadline”.195 Kate Smart said that “some sort of helpline and resolution recourse will be needed for years to come” to support those switching from pre-settled status to settled status.196

173.As with those who missed the 30 June 2021 deadline, those who fail to switch from pre-settled status to settled status on time risk losing their rights. The Minister told us that “exactly the same list of reasonable grounds” for late applications will apply to holders of pre-settled status who miss their personal deadline, as they did vis-à-vis the 30 June.197 We note, though, that the current approach of giving applicants the “benefit of any doubt” (discussed in paragraphs 118–124), is described as temporary in current Home Office guidance.

174.The Government successfully ensured that over 5.4 million eligible citizens applied under the EUSS ahead of the 30 June 2021 deadline. But over 2 million of these were granted time-limited rights in the form of pre-settled status, placing the onus squarely upon them to preserve their rights by successfully applying in due course for settled status. If they do not, they may lose their rights in the coming years.

175.Replicating the initial success of the Settlement Scheme will be more difficult in the next phase; rather than one deadline for millions of people, there are now many individual deadlines. We welcome the Home Office’s plans to send individual reminders, but this relies on EU citizens keeping their contact details up to date. The Government should therefore make full use of community networks, and maintain helplines and resolution centres, to support holders of pre-settled status in applying on time.

176.Holders of pre-settled status who miss their deadline for applying for settled status can make late applications if they have reasonable grounds to do so. The Government has undertaken, for the time being, to give late applicants the “benefit of any doubt”. But as the first of these deadlines are not until August 2023, we are concerned that pre-settled status holders are vulnerable to a reversal of the temporary and non-binding “benefit of any doubt” policy.

177.There is a lack of data on how many holders of pre-settled status are still residing in the UK, and uncertainty over how many will want or need to apply for full settled status in the future. This will make it difficult to assess the Government’s success in ensuring people make the switch to settled status on time.

Pre-settled status and welfare rights

178.Unlike settled status, pre-settled status does not automatically qualify the holder to claim benefits. Holders of pre-settled status wishing to claim benefits therefore have to demonstrate their right to reside through other means, such as the 2016 EEA Regulations.198

179.The criteria in the 2016 EEA Regulations are narrower, however, and could exclude certain vulnerable groups. The EU Rights and Brexit Hub gave the examples of long-term residents, those with caring responsibilities, and those with disabilities, adding: “Denial of benefit support is particularly concerning as these groups, and vulnerable citizens more generally, are also more likely to be dependent on this support.”199

180.We also heard evidence of citizens being wrongly excluded from benefits or social housing. The EU Rights and Brexit Hub cited an EEA national with pre-settled status who was removed from the social housing waiting list due to her lack of full settled status, with no attempt by the local authority to establish whether she had a qualifying right to reside under the EEA Regulations (which, as it transpired, she had).200

181.The lack of automatic welfare rights under pre-settled status is currently subject to two separate legal challenges, one before the Supreme Court201 and the other before the CJEU.202

182.We note that the issue of pre-settled status and access to welfare rights is currently the subject of two separate legal challenges. We await with interest the outcome of these cases.


44 Cabinet Office, Third Joint report on the implementation of residence rights under part two of the Withdrawal Agreement (28 April 2021): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/990420/Specialised_Committee_on_Citizens__Rights__Third_UK-EU_Joint_Report_on_Residence_28_April_2021.pdf [accessed 14 July 2021]

45 Home Office, ‘Immigration Rules’ (25 February 2016): https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-eu [accessed 14 July 2021]

46 Home Office, ‘EU Settlement Scheme quarterly statistics, March 2021’ (1 June 2021): https://www.gov.uk/government/statistics/eu-settlement-scheme-quarterly-statistics-march-2021 [accessed 14 July 2021]

47 BBC News, ‘Brexit: Theresa May scraps £65 fee for EU citizens to stay in UK’ (21 January 2019): https://www.bbc.co.uk/news/uk-politics-46950719 [accessed 14 July 2021]

48 Home Office, ‘EU Settlement Scheme statistics’ (30 May 2019): https://www.gov.uk/government/collections/eu-settlement-scheme-statistics [accessed 14 July 2021]

49 Office for National Statistics, ‘Population of the UK by country of birth and nationality: 2019’ (21 May 2020): https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/bulletins/ukpopulationbycountryofbirthandnationality/2019 [accessed 14 July 2021]

50 Cabinet Office, Third joint report on the implementation of residence rights under part two of the Withdrawal Agreement (28 April 2021): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/990420/Specialised_Committee_on_Citizens__Rights__Third_UK-EU_Joint_Report_on_Residence_28_April_2021.pdf [accessed 14 July 2021]

51 Q 1 (Monique Hawkins)

52 Written evidence from the Independent Monitoring Authority (CIT0006)

53 Q 1 (Fiona Costello)

54 Q 1 (Kate Smart)

55 Oral evidence taken before European Affairs Committee, inquiry on UK-EU relations, 24 June 2021 (Session 2021–22), Q 8 (Ambassador Vale de Almeida)

56 Written evidence from the Independent Monitoring Authority (CIT0006)

57 Q 2 (Monique Hawkins)

58 Written evidence from Migration Observatory (CIT0007)

59 Oral evidence taken before European Affairs Committee, inquiry on UK-EU relations, 24 June 2021 (Session 2021–22), Q 7 (Ambassador Vale de Almeida)

60 Home Office, ‘EU Settlement Scheme quarterly statistics, March 2021’ (1 June 2021): https://www.gov.uk/government/statistics/eu-settlement-scheme-quarterly-statistics-march-2021/eu-settlement-scheme-quarterly-statistics-march-2021 [accessed 14 July 2021]

61 Home Office, ‘Impact Assessment for EU Settlement Scheme - Updated analysis’ (March 2019): https://www.legislation.gov.uk/ukia/2019/74/pdfs/ukia_20190074_en.pdf [accessed 14 July 2021]

62 Q 18 (Kevin Foster MP)

63 Home Office, ‘EU Settlement Scheme - Home Office looked after children and care leavers survey 2021’ (13 May 2021): https://www.gov.uk/government/publications/eu-settlement-scheme-home-office-looked-after-children-and-care-leavers-survey-2020/eu-settlement-scheme-home-office-looked-after-children-and-care-leavers-survey-2021#fn:5 [accessed 14 July 2021]. Even this figure could be an over-estimate if there are some children in care who were not identified by local authorities. This is concerning because, as Madeleine Sumption told us, “there is no reason to believe that children in care and care leavers are the only vulnerable group with substantial numbers who have not applied”. Written evidence from Migration Observatory (CIT0007).

65 Written evidence from the EU Rights and Brexit Hub (CIT0005)

66 Q 17 (Kevin Foster MP)

67 Oral evidence taken before European Affairs Committee, inquiry on UK-EU relations, 24 June 2021 (Session 2021–22), Q 6 (Lord Frost)

68 Q 1 (Monique Hawkins)

69 Written evidence by Professor Charlotte O’Brien (CIT0004)

70 Written evidence from the3million (CIT0010)

71 Written evidence from the3million (CIT0010)

72 Ibid.

73 Written evidence by Professor Charlotte O’Brien (CIT0004)

74 Written evidence by Professor Charlotte O’Brien (CIT0004), written evidence from the3million (CIT0010) and Withdrawal Agreement, Article 18(1).

75 Written evidence by Professor Charlotte O’Brien (CIT0004)

76 FCDO, ‘Citizens’ Rights Specialised Committee meeting, 17 June 2021: joint statement’ (17 June 2021): https://www.gov.uk/government/news/citizens-rights-specialised-committee-meeting-17june-2021-joint-statement [accessed 14 July 2021]

77 Q 20 (Kevin Foster MP)

78 Court of Justice of the European Union, Toufik Lounes v Secretary of State for the Home Department (2017) C-165/16

79 Written evidence from the3million (CIT0010)

81 Letter from Baroness Kennedy of The Shaws, Chair of the Justice Sub-Committee, to Rt Hon Sajid Javid MP, Home Secretary, 27 February 2019: https://www.parliament.uk/globalassets/documents/lords-committees/eu-justice-subcommittee/CWM/HKtoSJ-SettledStatus-260219.pdf [accessed 14 July 2021]

82 Oral evidence taken before the EU Justice Sub-Committee, inquiry on Brexit: citizens’ rights,
4 February 2020 (Session 2019–21), QQ 59–67

83 Letter from Lord Morris of Aberavon, Chair of the EU Justice Sub-Committee, to Kevin Foster MP, Parliamentary Under Secretary of State for Immigration, Home Office, 25 February 2020: https://committees.parliament.uk/publications/39/documents/673/default/

84 Migration Observatory, ‘Unsettled Status - 2020: Which EU Citizens are at Risk of Failing to Secure their Rights after Brexit?’ (24 September 2020): https://migrationobservatory.ox.ac.uk/resources/reports/unsettled-status-2020/ [accessed 14 July 2021]

86 Written evidence from the AIRE Centre (CIT0001)

87 Written evidence from the Independent Monitoring Authority (CIT0006)

90 Written evidence from New Europeans UK (CIT0009)

91 Ibid.

92 Home Office, ‘EU Settlement Scheme quarterly statistics, March 2021’ (1 June 2021): https://www.gov.uk/government/statistics/eu-settlement-scheme-quarterly-statistics-march-2021/eu-settlement-scheme-quarterly-statistics-march-2021 [accessed 14 July 2021]

93 Oral evidence taken before European Affairs Committee, inquiry on UK-EU relations, 24 June 2021 (Session 2021–22), 8 (Ambassador Vale de Almeida)

95 Written evidence from the AIRE Centre (CIT0001)

96 Written evidence from EU Rights and Brexit Hub (CIT0005)

97 Eligible citizens can use the EU Exit: ID Document Check app to complete the identity stage of their application under the EUSS, although they can also do so in person or by post.

98 Q 2, see also written evidence from the AIRE Centre (CIT0001).

99 Written evidence from the Independent Monitoring Authority (CIT0006)

100 Home Office, ‘£8 million to help vulnerable people apply to the EU Settlement Scheme’ (6 March 2020): https://www.gov.uk/government/news/8-million-to-help-vulnerable-people-apply-to-the-eu-settlement-scheme [accessed 14 July 2021]

101 Home Office, ‘Landmark EU Settlement Scheme reaches five million applications’ (11 February 2021): https://www.gov.uk/government/news/landmark-eu-settlement-scheme-reaches-five-million-applications [accessed 14 July 2021]

102 Q 23 (Kevin Foster MP)

103 Q 17 (Kevin Foster MP)

104 Written evidence from EU Rights and Brexit Hub (CIT0005)

105 Q 23 (Kevin Foster MP)

106 Q 23 (Kevin Foster MP)

109 Written evidence from the Independent Monitoring Authority (CIT0006)

110 Article 18(1)(d) of the Withdrawal Agreement deals with the consequences of late applications. The Government must allow all late applicants “to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline” and must also “assess all the circumstances and reasons for not respecting the deadline”. Late applications are discussed further in paras 116–136. Withdrawal Agreement, Article 18(1)(d).

111 Q 5 (Monique Hawkins); see also Q 5 (Kate Smart) and written evidence from the AIRE Centre (CIT0001).

113 Q 18 (Kevin Foster MP)

114 Home Office, ‘EU Settlement Scheme statistics’ (30 May 2019): https://www.gov.uk/government/collections/eu-settlement-scheme-statistics [accessed 14 July 2021]

115 Written evidence from the Independent Monitoring Authority (CIT0006)

116 Written evidence from the AIRE Centre (CIT0001)

117 Q 18 (Kevin Foster MP)

118 Written evidence from EU Rights and Brexit Hub (CIT0005)

119 Q 4 (Fiona Costello)

120 Home Office, EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members and HM Government, ‘Apply to the EU Settlement Scheme (settled and pre-settled status)’ (2021): https://www.gov.uk/settled-status-eu-citizens-families/after-youve-applied [accessed 14 July 2021]

121 Q 18 (Kevin Foster MP)

123 HM Government, ‘Apply to the EU Settlement Scheme (settled and pre-settled status)’ (2021): https://www.gov.uk/settled-status-eu-citizens-families/eligibility [accessed 14 July 2021]

124 House of Commons Library, EU Settlement Scheme, Library Note, CLN 8584

125 It should also be noted that some applicants are subject to different deadlines – for example, those who have limited leave to remain under another part of the immigration rules, or who cease to be exempt from immigration rule after 30 June 2021. For these individuals, the same “reasonable grounds” approach applies with respect to applications after their own, potentially later, deadlines. Home Office, EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members

126 Q 19 (Kevin Foster MP)

127 Q 18 (Kevin Foster MP)

129 Written evidence from the AIRE Centre (CIT0001)

131 Oral evidence taken before European Affairs Committee, inquiry on UK-EU relations, 24 June 2021 (Session 2021–22), Q 8 (Ambassador Vale de Almeida)

132 Q 5 (Kate Smart)

133 Written evidence from the AIRE Centre (CIT0001)

134 Q 19 (Kevin Foster MP)

135 Q 18 (Kevin Foster MP)

136 Written evidence from the AIRE Centre (CIT0001)

137 Q 19 (Kevin Foster MP)

138 Written evidence from the Independent Monitoring Authority (CIT0006)

139 Q 5 (Kate Smart)

140 Written evidence from EU Rights and Brexit Hub (CIT0005), see also Home Office, EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members.

141 Written evidence from the AIRE Centre (CIT0001)

143 Written evidence from EU Rights and Brexit Hub (CIT0005)

144 Written evidence from the AIRE Centre (CIT0001)

145 Written evidence from the Independent Monitoring Authority (CIT0006)

146 HM Government, ‘Apply to the EU Settlement Scheme (settled and pre-settled status)’ (2021): https://www.gov.uk/settled-status-eu-citizens-families/eligibility [accessed 14 July 2021]

147 Written evidence from the EU Rights and Brexit Hub (CIT0005)

148 QQ 2, 5 (Monique Hawkins)

149 QQ 5, 8 (Monique Hawkins)

150 Written evidence from the3million (CIT0010)

151 Written evidence from EU Rights and Brexit Hub (CIT0005)

152 Written evidence from the AIRE Centre (CIT0001)

153 Q 8 (Fiona Costello)

154 Q 3 (Kate Smart)

155 Q 19 (Kevin Foster MP)

156 Oral evidence taken before the European Affairs Committee, inquiry on UK-EU relations,
18 May 2021 (Session 2021–22), Q 6 (Lord Frost)

157 Written evidence from the Independent Monitoring Authority (CIT0006) and Withdrawal Agreement, Article 18(1)

158 Q 3 (Kate Smart)

159 Written evidence from New Europeans UK (CIT0009)

160 Letter from Baroness Kennedy of The Shaws, Chair of the EU Justice Sub-Committee, to Rt Hon Sajid Javid MP, Home Secretary, 27 February 2019: https://www.parliament.uk/globalassets/documents/lords-committees/eu-justice-subcommittee/CWM/HKtoSJ-SettledStatus-260219.pdf [accessed 14 July 2021]

161 Home Affairs Committee, EU Settlement Scheme (Fifteenth Report, Session 2017–19, HC 1945), para 15, see also Committee on the Future Relationship with the EU, Implementing the Withdrawal Agreement: citizens’ rights (Second Report, Session 2019–21, HC 849), para 83

162 Independent Monitoring Authority, European citizens’ concerns after Brexit: Report on the IMA’s first survey (May 2021): https://s3-eu-west-2.amazonaws.com/jotwpublic-prod-storage-1cxo1dnrmkg14/uploads/sites/4/2021/05/IMA-report-European-citizens-concerns-after-Brexit-1.pdf [accessed 14 July 2021]

163 Letter from Kevin Foster MP, Parliamentary Under-Secretary of State, Home Office to Monique Hawkins, the3million, 19 April 2021: https://249e1c0f-a385-4490-bfe6-875269a8d3d5.filesusr.com/ugd/cd54e3_12b5aa7c27624d5dafef0672111eceb7.pdf [accessed 14 July 2021]

164 Letter from Rt Hon Sajid Javid MP, Home Secretary, to Baroness Kennedy of The Shaws, Chair of EU Justice Sub-Committee, 20 March 2019: https://www.parliament.uk/globalassets/documents/lords-committees/eu-justice-subcommittee/CWM/SJ-LettertoHK-EUSS_20-03-19.pdf [accessed 14 July 2021]

165 Written evidence from New Europeans UK (CIT0009) and written evidence from EU Rights and Brexit Hub (CIT0005). See also written evidence from the AIRE Centre (CIT0001).

166 Written evidence from EU Rights and Brexit Hub (CIT0005) and written evidence from New Europeans UK (CIT0009)

167 Written evidence from the AIRE Centre (CIT0001)

168 3 (Kate Smart)

169 Written evidence from EU Rights and Brexit Hub (CIT0005) and written evidence from the AIRE Centre (CIT0001)

170 Written evidence from EU Rights and Brexit Hub (CIT0005)

171 Q 3 (Monique Hawkins)

172 Written evidence from EU Rights and Brexit Hub (CIT0005)

173 Written evidence from the AIRE Centre (CIT0001)

174 Q 22 (Kevin Foster MP)

175 Home Office, ‘Your Immigration status: an introduction for EU, EEA and Swiss citizens’ (1 July 2021): https://www.gov.uk/government/publications/view-and-prove-your-immigration-status-evisa/your-immigration-status-an-introduction-for-eu-eea-and-swiss-citizens-accessible-version#where-we-provide-automatic-access-to-your-immigration-status [accessed 14 July 2021]

176 Q 3 (Kate Smart)

177 Written evidence from the Independent Monitoring Authority (CIT0006) and written evidence from EU Rights and Brexit Hub (CIT0005).

178 Home Office, Landlord’s guide to rent checks (1 July 2021): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/994998/Landlords_guide_to_right_to_rent_checks.pdf [accessed 14 July 2021] and Home Office, EU Settlement Scheme: introduction for employers (24 June 2021): https://www.gov.uk/government/publications/eu-settlement-scheme-introduction-for-employers/eu-settlement-scheme-introduction-for-employers [accessed 14 July 2021]

179 Q 7 (Monique Hawkins)

180 Home Office, ‘Coronavirus (COVID-19): EU Settlement Scheme — guidance for applicants’ (15 December 2020): https://www.gov.uk/guidance/coronavirus-covid-19-eu-settlement-scheme-guidance-for-applicants [accessed 14 July 2021]

181 Home Office, ‘EU Settlement Scheme statistics’ (30 May 2019): https://www.gov.uk/government/collections/eu-settlement-scheme-statistics [accessed 14 July 2021]

182 Home Office, ‘EU settlement Scheme quarterly statistics, March 2021’ (1 June 2021): https://www.gov.uk/government/statistics/eu-settlement-scheme-quarterly-statistics-march-2021/eu-settlement-scheme-quarterly-statistics-march-2021#concluded-applications-to-the-eu-settlement-scheme [accessed 14 July 2021] and written evidence from the Migration Observatory (CIT0007)

183 Written evidence from the Migration Observatory (CIT0007)

184 Letter from Baroness Kennedy of The Shaws, Chair of the EU Justice Sub-Committee, to Rt Hon Sajid Javid MP, Home Secretary, 27 February 2019: https://www.parliament.uk/globalassets/documents/lords-committees/eu-justicesubcommittee/CWM/HKtoSJ-SettledStatus-260219.pdf [accessed 14 July 2021]

185 FCDO, Citizens’ Rights Specialised Committee meeting: joint statement (17 June 2021): https://www.gov.uk/government/news/citizens-rights-specialised-committee-meeting-17june-2021-joint-statement [accessed 14 July 2021]

186 Written evidence from the3million (CIT0010)

187 Written evidence from the Migration Observatory (CIT0007)

188 Written evidence from the EU Rights and Brexit Hub (CIT0005)

189 Letter from Baroness Kennedy of the Shaws, Chair of the EU Justice Sub-Committee, to Rt Hon Sajid Javid, Home Secretary, 27 February 2019: https://www.parliament.uk/globalassets/documents/lords-committees/eu-justicesubcommittee/CWM/HKtoSJ-SettledStatus-260219.pdf [accessed 14 July 2021]

190 Q 4 (Monique Hawkins)

191 7 (Fiona Costello) and written evidence from the Migration Observatory (CIT0007)

192 Q 24 (Kevin Foster MP)

193 Written evidence from the Independent Monitoring Authority (CIT0006)

194 Q 24 (Kevin Foster MP)

195 Q 7 (Fiona Costello)

196 Q 8 (Kate Smart)

197 Q 24 (Kevin Foster MP)

198 Written evidence from the EU Rights and Brexit Hub (CIT0005)

199 Ibid.

200 Ibid.

201 In Fratilla vs Secretary of State for Work and Pensions, the Court of Appeal of England and Wales found in December 2020 that holders of pre-settled status were entitled to equal treatment when claiming benefits, and that UK policy was discriminatory and, while the UK remained in the transition period, a breach of Article 18 TFEU. Although this refers to a breach of EU law which no longer applies post-transition, the definition of discrimination on grounds of nationality under Article 18 TFEU is preserved under Article 12 of the Withdrawal Agreement. The case is now before the Supreme Court. Department for Work and Pensions, ‘A5/2021: Pre-settled status - effect of the Court of Appeal decision in the Fratila case’ (27 May 2021): https://www.gov.uk/government/publications/housing-benefit-adjudication-circulars-2021/a52021-pre-settled-status-effect-of-the-court-of-appeal-decision-in-the-fratila-case [accessed 14 July 2021]

202 CG vs Department for Communities in Northern Ireland, currently before the CJEU, is substantively similar to the Fratilla case. The Advocate General recently issued an opinion on the case, finding that a situation where “an economically inactive national of another Member State … is unable to receive social assistance solely because of the nature of his or her right of residence constitutes indirect discrimination on the ground of nationality”. As the CJEU case predated the end of the transition period, its findings would be binding on the UK. Court of Justice of the European Union, Advocate General Richard de la Tour: The grant without conditions as to resources of a right of residence by a Member State to Union citizens cannot have the effect of systematically excluding them from social assistance granted to nationals of that State without constituting discrimination based on nationality (24 June 2021) C-709/20: https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-06/cp210115en.pdf [accessed 14 July 2021]




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