10 January 2020

Windrush
The UK Windrush scandal in 2018 concerned members of the ‘Windrush generation’ who were wrongly denied legal rights and NHS care, detained and (in a number of cases) deported by the Home Office.

A case which typifies Windrush is Baker v Abellio London Ltd, where Mr Baker, an individual born in Jamaica but had lived in the UK since childhood, was dismissed from his job as he was unable to provide documentation evidencing his right of abode in the UK.

Mr Baker made a claim for unfair dismissal against his former employer at the Employment Tribunal. He explained to the Tribunal that he did not apply for the relevant immigration documentation because it was legally unnecessary and he could not afford the application fee.

Whilst Mr Baker was successful in his appeal of the Employment Tribunal’s original decision to dismiss his claim, the circumstances of his case are a classic example of the challenges faced by the Windrush generation in the Conservative Party’s ‘hostile environment’. A false and often baseless equivalence of the absence of prescriptive documentation with the lack of permission to reside and work in the UK, combined with the increasingly excessive application fees to obtain immigration documentation left many individuals (and companies wishing to avoid civil and criminal penalties) helpless in their fight against the Home Office’s denial of their rights and often corresponding disproportionate enforcement action.

The European Settlement Scheme (EUSS)
The EUSS opened to applicants on 30 March 2019, allowing all EEA nationals and their family members who enter the UK before the transition period ends (currently on 31 December 2020) to apply for ‘Settled’ or ‘Pre-settled’ status which would protect their right to reside in the UK in the future.

A notable feature of the EUSS is that it is free to apply to the scheme. It could therefore be argued that, unlike Windrush, those who fail to make an application within the required timeframe will be unable to blame their inability to pay the application fees. This would, however, ignore the numerous technical and technological issues with the scheme which is likely to have left many applicants in need of inaccessible legal assistance to proceed with making their application.

Perhaps the most noteworthy similarity between Windrush and the EUSS is the emphasis on evidence or ‘status’ to live a life in the UK. Currently, EEA nationals and their family members have an automatic right to reside in the UK as a matter of fact subject to satisfying the relevant provisions of the Immigration (European Economic Area) Regulations 2016. Their right to reside in the UK is not dependent on possession of any form of documentation evidencing this right.

As noted by the Home Affairs Committee in a report in May 2019, the EUSS alters this position by requiring those who are eligible for status in the UK to actively apply for it. In February 2019, the then Home Secretary Sajid Javid confirmed that those who had not registered in the EUSS by the deadline would be in contravention of the Immigration Rules. He was, however, keen to emphasise that that such individuals would not be considered “unlawful” in the same manner as someone who has illegally entered the country. Whilst this should be reassuring, it is the view of Colin Yeo, a barrister specialising in immigration law, that it is likely it will become criminal offence for those who miss the deadline to take employment in the UK and that they are also likely to encounter difficulties in renting property and accessing medical treatment. Furthermore, the echoes of Windrush and its real-life consequences in addition to the complete lack of clarity in relation to the system which will be in the place for those who miss the deadline also makes it difficult to believe that the Home Office will adopt a somewhat humane approach, particularly given that the Home Office holds no historical records of EU citizens.

In response to the Home Affairs Committee report, a Home Office spokesman defended the EUSS by arguing that an alternative, optional system where EU citizens would not actively be required to make an application could itself cause a Windrush-type situation due to a lack of immigration documentation. The government has also defended the EUSS via the regular release of statistics which demonstrate the satisfactory take-up and performance of the scheme so far, although the basis of such statistics have been questioned.

Will the EUSS lead to a Windrush type-fallout? It is unlikely that we will get any concrete answers until the end of the transition period, although it is clear at this stage is that familiar warning signs have already arisen. Given the extremely negative reputational damage on the government following Windrush, one would hope that the Home Office will do everything in their power to remedy these warning signs before they spiral into another scandal that has the scope to affect groups of society that have made the UK their home. One way of avoiding this risk entirely could have been an automatic grant of indefinite leave to remain for all EU citizens lawfully resident in the UK as promised by Vote Leave in 2016.