The EU settlement scheme could lead to the unnecessary and unlawful deportations of people who should be entitled to live and work in the UK, a parliamentary report has stated.
The report by the Home Affairs select committee identified two key issues with the scheme: the requirement for EU nationals to individually apply for settled status, while bearing in mind a complex array of deadlines; and the use of a digital system without issuing documentation, as the key issues.
Politicians on the committee noted that for the Windrush generation, the Immigration Act 1971 confirmed the legal right of Commonwealth citizens who were already present and settled in the UK when the Act came into force on 1 January 1973 to stay indefinitely in the UK. The Act also recognised the right of wives and children to join them. But a lack of documentation to support their entitlements under the 1971 Act led to at least 83 people being wrongly deported and many others being detained and denied legal rights.
Under the EU settlement scheme, the government has said that people who have made their homes in the UK through exercise of European free movement rights may stay indefinitely but this right is dependent on them individually completing the time-limited settlement scheme. The report found: “This is not a scheme that is conferring status on eligible individuals. This is a scheme that requires an individual to take an active step and apply in order to secure their future status in the UK.”
As a “constitutive system”, the report stated, anyone who, for whatever reason, did not acquire formal settled status – whether because they do not apply or because they are unable to comply with the scheme’s requirements for evidence of status – would become unlawfully resident and lose their rights. Professor Stijn Smismans, director of the University of Cardiff’s Centre for European Law and Governance, told the committee: “The main flaw of the design is its basic principle – the practical consequences can be dire under a constitutive system.”
Committee members wrote in the report: “We believe the EU citizens legally resident in the UK before its departure from the European Union should have their rights protected and their entitlement to remain enshrined in law.”
A lack of documentation under the scheme was also highlighted by committee members as deeply problematic. Stuart McDonald, the SNP member of the committee, said the government needed to issue printed documents and not a digital system to enable EU citizens to deal with landlords, employers and officials at airports and ports.
Home Office officials believe that the digital system being used is an improvement on hard documents which can be lost, stolen, or become out of date, is easier for visually impaired and dyslexic users, and provides more space for explanatory information than a physical card. But the committee found that most EU citizens would prefer “also to possess a hard document, passport endorsement, or other form of tangible official certification”.
For Kerry Garcia, partner and immigration expert at Stevens & Bolton LLP, there were many ways EU nationals could fall through gaps and find themselves in the Windrush predicament. She said: “Some will need to provide additional documentation evidencing when they came to the UK and how long they have been here. The entire system relies on people remembering to apply before the relevant deadlines and so it’s inevitable that many will simply forget or not get round to it. Those who have been here for decades are also proving reluctant to apply and are often disbelieving that they even need to do so.”
She added: “The system is not practical or user-friendly. It relies upon information provided when an individual first came to the UK (i.e phone numbers, addresses), which naturally change over time. If you fail to update the Home Office of these changes, it could cost you your job and your home. Lives move on and this system simply will not keep up.”
In February an NHS consultant, a German national, told Personnel Today he was troubled by the scheme: “I have refused to do anything with the 85-page document. I can work anywhere in the EU; all Europeans I’ve spoken to are sick to the teeth with being buggered about and will vote with their feet unless the government’s tone changes. The whole thing is very distressing – I’m not playing any kind of Windrush game with the Home Office.”
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The Home Affairs committee concluded that the correct status for an EU citizen who has been legally resident in the UK for more than five years is settled status, regardless of whether they have complete documentary evidence to prove this. The implementation of a declaratory system, which automatically grants rights and status to individuals entitled to them, would be a fairer and more accurate way of attributing immigration status to EU citizens residing in the UK.
Responding to the report the Home Office stated: “We disagree with the Home Affairs select committee’s assessment of the scheme, which is performing well with more than 600,000 applications received by the end of April and hundreds of thousands of people already being granted status.”
Earlier this month the Home Office issued a report hailing the fact that no applicant to the scheme had so far been rejected.
The government is far from united on the future of the settlement scheme with backbench MP Alberto Costa’s Commons February victory for EU citizens’ rights to be ringfenced attracting support from more senior figures. Costa lost his government role after his amendment’s success.
Party leadership candidate Michael Gove supports Costa’s campaign and said earlier this week that he would pledge free British citizenship for the three million EU nationals after Brexit if he became prime minister, as well as abolishing the burden of providing proof of settled status.