The issue of free movement and the rights of EEA and Swiss nationals was one of the most publicised and controversial aspects of Brexit. It’s an area where the rhetoric has often been very different to the reality.
To remain living in the UK lawfully, European nationals who were resident in the UK before 1 January 2021 had to apply under the EU settlement scheme by 30 June 2021, via an application described as “simple and straightforward” by the government. It’s proving to be anything but for many European nationals and the Home Office caseworkers grappling with more than 200 pages of guidance and growing backlogs of applications.
Not only are certain details of the scheme labyrinthine in their complexity and the underlying legislation badly drafted, but many eligible Europeans simply failed to apply in time.
Indeed, more than 58,000 applications were submitted in the first month after the deadline. While some were from individuals with pre-settled status applying for settled status, or family members applying to join a European national, a significant proportion were simply late.
Some individuals were unaware of the deadline or, in many cases, that they needed to apply at all; with parents who failed to realise that they needed to apply on behalf of their children and people who have lived in the UK for decades believing they were exempt. Those with permanent residency, perhaps understandably, mistakenly assumed they did not need to apply.
Others were temporarily outside of the UK before the deadline and didn’t appreciate they needed to apply or, if outside the EU, were simply unable to access the app. European spouses and children of Irish and British nationals have also been caught out.
The nuances and extent of the scheme were clearly not publicised sufficiently, a problem exacerbated by the fact that Covid was the focus for businesses, the media and individuals over the last year.
As a result, individuals are now facing the drastic consequences of failing to make the deadline. As travel and checks resume, those who failed to apply are being stopped at the border, pulled aside and questioned for hours and denied entry or, at best, granted leave outside the usual immigration rules and given a short period in which to apply. Some are threatened with deportation.
Employers and landlords, who for years have taken on the unwelcome role of unpaid immigration officers, are often the first to highlight a person’s lack of status. If prospective employers discover candidates have not applied under the scheme, it may cost individuals their job offer. Prospective landlords are unwilling to rent their property to someone who has not applied under the scheme or who has applied late.
Lengthy backlogs to process applications aren’t helping, leaving individuals in limbo for weeks or even months. In June, a report from the Institute for Public Policy Research found that more than 100,000 applicants had been waiting at least three months for a decision.
However, there is a glimmer of light at the end of the tunnel. The government is slowly taking action and has deployed extra resources to deal with the backlog. They’ve sought to reassure European nationals they’ll take a pragmatic approach to late applications and give applicants the benefit of the doubt. For now.
As late applications still haven’t been processed, applicants can only wait and see whether this pledge is honoured. The government also recently stated that those who apply late will have their rights protected and has urged landlords and employers to contact the Home Office with queries.
Unfortunately, the law doesn’t yet reflect the rhetoric as, despite government reassurances, the legislation only protects the rights of those who applied before 30 June 2021. Guidance to employers still states that if an EEA citizen applies for a job after 30 June 2021 but has not applied under the scheme by the deadline, they should not be employed.
So, for now, those affected are left in a highly precarious position, uncertain as to when their application will be processed and whether or not it will be approved, and with little meaningful protection, making it hard for them to seek employment or to rent.
As borders reopen and they wish to visit family in Europe, if they travel, they risk being refused re-entry to the UK. No doubt those affected will feel that their rights are far from safeguarded and the promise of a straightforward scheme seems like a distant dream.
Kerry Garcia is a partner at Stevens & Bolton LLP