Citizens’ Rights Contents

Summary of conclusions and recommendations

The Withdrawal Agreement and citizens’ rights

1.It remains a matter of regret to us that the Parties did not address the onward free movement rights of British citizens in the Withdrawal Agreement or the TCA. In our view, this issue is best addressed via international cooperation. Looking to the future therefore, we call on the Government to raise the issue with the EU through the institutional arrangements introduced by the Withdrawal Agreement or the TCA, as appropriate. (Paragraph 24)

2.The Government should support UK regulators and professional bodies in utilising the machinery of the TCA to negotiate and conclude agreements on the mutual recognition of professional qualifications as soon as possible. We would welcome an update on the Government’s priorities in this respect in their response to this report. (Paragraph 28)

3.The Independent Monitoring Authority, as required by the Withdrawal Agreement, plays an important role in monitoring the operation of the UK’s EU Settlement Scheme and the protection of EU citizens’ rights. It is therefore essential that it makes a strong and concerted effort to make those citizens aware of its existence and its role to support them to exercise their rights under the Scheme. (Paragraph 35)

4.The European Commission, as required by the Withdrawal Agreement, plays an important role in monitoring the implementation of the citizens’ rights provisions in EU Member States and in protecting UK citizens’ rights. We note that groups representing UK citizens report positive engagement with the Commission and we hope this will continue. (Paragraph 38)

5.Currently, the UK, the EU Commission and EU Member States have taken a constructive approach to citizens’ rights, which we welcome. But both sides need to be vigilant that the wider issues in their relationship do not spill over into citizens’ rights issues. Given the importance of these matters to millions of individuals, we recommend both sides continue this positive approach to discharging their citizens’ rights obligations under the Withdrawal Agreement, regardless of wider tensions in their relationship. (Paragraph 53)

EU citizens’ rights in the UK

6.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. (Paragraph 69)

7.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. (Paragraph 70)

8.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. (Paragraph 71)

9.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. (Paragraph 72)

10.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. (Paragraph 80)

11.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. (Paragraph 81)

12.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. (Paragraph 85)

13.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. (Paragraph 101)

14.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. (Paragraph 102)

15.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. (Paragraph 103)

16.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. (Paragraph 104)

17.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. (Paragraph 108)

18.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. (Paragraph 115)

19.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. (Paragraph 131)

20.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. (Paragraph 132)

21.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. (Paragraph 133)

22.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. (Paragraph 134)

23.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. (Paragraph 135)

24.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. (Paragraph 136)

25.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. (Paragraph 143)

26.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. (Paragraph 144)

27.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. (Paragraph 145)

28.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. (Paragraph 146)

29.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. (Paragraph 157)

30.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. (Paragraph 158)

31.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. (Paragraph 159)

32.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. (Paragraph 160)

33.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. (Paragraph 164)

34.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. (Paragraph 174)

35.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. (Paragraph 175)

36.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 … for the time being”. 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. (Paragraph 176)

37.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. (Paragraph 177)

38.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. (Paragraph 182)

UK citizens in the EU

39.It is clear there are problems in identifying accurately how many UK citizens are resident in some Member States and where exactly they live. We urge the EU Commission and the UK Government to do all that they can, when engaging with Member States on citizens’ rights, to ensure that host countries do not miss sections of their own UK national populations. The UK government should also engage with the EU Commission as the monitoring authority within the EU. This engagement should continue after the expiry of constitutive Member States’ deadlines: missed UK citizens may only be identified at this time, with serious consequences for the individuals concerned. (Paragraph 193)

40.As of June 2021, the published data for the progress of UK citizens’ applications across both declaratory and constitutive systems presents a mixed picture. In some Member States this appears to be progressing well, while in others problems exist, including where the number of applications received is significantly lower than the estimated UK population in that country. This is in contrast to the UK, where the number of applications made under the EUSS vastly exceeds the estimated population of EU citizens. (Paragraph 211)

41.Clearly, there is much work still to be done. We therefore call on the EU Commission and the UK Government to work closely with EU Member States to ensure that where UK citizens are at risk of missing an application deadline, or have already done so, they are promptly identified and supported to access their rights. (Paragraph 212)

42.In contrast to the UK authorities, many EU Member States have not yet issued guidance on the approach they will take to late applications. Given the importance of this information to UK citizens, we ask the Government to continue to work with its EU partners to ensure that guidance about late applications is available for UK nationals in every Member State with a constitutive system. (Paragraph 213)

43.The EU-wide biometric residence card provides physical evidence for UK citizens living in the EU of their Withdrawal Agreement rights. In many circumstances, UK citizens will need the card to prove their right to residence and employment, as well as when engaging with the health and social security systems, and when travelling across the EU. The evidence we received from witnesses representing UK citizens living in the EU27 was clear: they welcomed the reassurance that this physical document provides. (Paragraph 219)

44.We note that the Government welcomes the EU’s decision to issue a physical document to all UK citizens falling within the scope of the Withdrawal Agreement, while resisting calls from many quarters to provide EU citizens with a physical proof of their rights under the UK’s system and ask it to clarify why it holds these contrary positions. (Paragraph 220)

45.Whether they have constitutive or declaratory systems, some EU Member States have failed to communicate effectively with their UK populations. There have been problems with inconsistent levels of communication to UK citizens, which, when compounded by other issues such as digital exclusion and the effect of the COVID-19 pandemic, may cause some to fail to access their Withdrawal Agreement rights. We therefore urge the Government to continue to make every effort to raise such issues with the EU Commission and relevant Member States, including at meetings of the Specialised Committee, to ensure they are addressed. (Paragraph 234)

46.The UK Nationals Support Fund provides important support to third party organisations to help UK citizens, particularly those who are vulnerable, to access their rights under the Withdrawal Agreement. We note that it targets those organisations that support the largest populations of UK citizens and we also note that not every Member State may have third party organisations that could receive this funding. However, we are concerned that the fund currently only covers 12 EU countries, and, given the importance of the support it provides, we call on the Government to extend its coverage, as a matter of urgency, to as many EU countries as possible, particularly to those with constitutive systems. (Paragraph 246)

47.We note that this funding is currently provided for the financial year 2021/22. We welcome the fact that the Government is keeping it under review, particularly given its importance to vulnerable UK citizens, who may need support after the various deadlines this year have passed. (Paragraph 247)

48.We note that some UK citizens living in the EU are not confident that the Government will support them and represent their needs, although there was praise for the support given from UK embassies and consulates. We urge the Government to do all that it can to maintain and develop trust with those communities, as it works with the EU to support their rights under the Withdrawal Agreement. (Paragraph 248)

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