The settled status scheme’s success is no guarantee of avoiding future policy problems

The stats are impressive. So far 5.3m citizens who came to the UK or Gibraltar before 31 December have been granted settled or pre-settled status since the EU Settlement Scheme (EUSS) went live in March 2019^[1]. The Home Office can be proud of a government scheme that has worked well and has for many been as painless as promised.

But the sheer number of people involved means many will have missed the UK's deadline for applying for settled or pre-settled status (for those with fewer than five years of continuous residence), which expires at midnight on 30 June. There has reportedly been a massive last minute rush of applications, and a growing backlog. Those who have applied by the deadline keep their rights while that application is processed.

But there will be others who have not applied. The first problem for the Home Office is it has no idea how many. Indeed, the number of applications already granted way exceeds estimates made at the time the scheme was set up. At that point there were expectations of around 3.5 million eligible citizens, not 5 million and counting.

The Home Office must be reasonable about reasonable grounds

In theory, missing the deadline means losing rights. But the Home Office has said it will accommodate people who have “reasonable grounds” for applying late, and has set out guidance on what that might mean. They have made clear that they are aware of groups who may have particular difficulty – children whose parents or care home fail to recognise that they needed to apply on their behalf, for example.

The Home Office needs to be careful too with those who were always going to struggle with a scheme which presumed a high degree of digital literacy. The pandemic and labour market dislocation of the past year has got in the way of some of the assistance available reaching hard to reach groups; in other cases, people may simply have found it hard to renew their paperwork in the middle of a pandemic.  

In dealing with late applications, the Home Office needs to carry through the mentality of presumption to grant, which it applied to applications made before the deadline, and be generous with those who fail to meet the deadline. It has told caseworkers to be “flexible and pragmatic”. The Home Office needs to learn from the Windrush experience and apply common sense where people may lack the right documents, but can show what most people would accept as evidence they have spent most of their time in the UK.

The Home Office needs to remember that there will be UK citizens in similar circumstances

In half of EU member states, UK citizens’ rights to stay were simply recognised. The UK joined the other 13 member states in having a system that required an application to guarantee the right to stay after Brexit. UK citizens face deadlines in those countries too.

The European Commission is overseeing EU member states' implementation of such schemes, and concerns can be raised in the Joint Committee on the Withdrawal Agreement or its specialised committee on citizens’ rights. Some are already proposing that a more proportionate response to failing to apply by the deadline is a fine alongside grant of status, rather than losing a right to status. France is already extending the deadline of its scheme, which was slow to get off the ground. The prime minister needs to watch that the Home Office treats EEA citizens here as we would want UK citizens treated in similar circumstances.

UK-EU relations have already been soured by stories of EU citizens being detained at the UK border. EU citizens have long complained about their digital-only proof of status. In the next period, it is vital for the UK’s reputation that proof of status is handled sensitively – and that this message gets out to Border Force, public services and employers and landlords. For the next few months, the assumption should be that such contacts can be useful in persuading people to apply who need to, rather than as triggers for instant enforcement.

The large number of people with pre-settled status is storing up problems for the future

The big thing about 30 June is that it is a single, simple, deadline. But once that deadline passes the 2m people who have only gained pre-settled status will be faced with their next – personal – deadline. They need to upgrade to settled status when they qualify to do so. That requires another application – and the ability to prove they have met the continuous residence test. This is another area where the Home Office may need to belie its reputation and show a degree of flexibility and active encouragement of those eligible to apply.  

The EUSS has been a government scheme that has, so far, worked pretty well. But the final judgement on whether it delivered the message that even Vote Leave made in the campaign – that EU citizens who has moved to the UK were valued and welcome to stay – will depend on how the Home Office handles the hard cases to come.

1.  https://ukandeu.ac.uk/wp-content/uploads/2021/06/The-EU-Settlement-Scheme.pdf