EU Settlement Scheme - a year of challenges and achievements

20 April

After several months of pilot testing, the UK government launched the EU Settlement Scheme (EUSS) on 30 March 2019 which should remain open to applicants until 30 June 2021. The scheme was introduced to serve an estimated 3.7 million EU, EEA and Swiss citizens and their third country national family members living in the UK who wish to secure their rights to continue to reside and work in the UK after free movement ends on 31 December 2020.

A year on, more than 3 million applications have been submitted under the EUSS by EU citizens and their family members, however some of these applications may not have been as simple and straightforward as the government asserts.

Application process
EU citizens and their family members can apply under the EUSS on the ‘EU Exit: ID document check’ app which involves identity checks, an online form and automated checks against Department for Work and Pensions (DWF) and Home Office Revenue & Customs (HMRC) records to confirm residence in the UK. This new digital process was initially received with a mixed response – some praised it for introducing new practical technology which may be implemented across the UK immigration system, whilst others warned that this might lead to a second Windrush scandal.

Once the online system has processed the application and a caseworker has reviewed it and made a decision, the applicant, if successful, may be granted either pre-settled or settled status. Where the Home Office is not satisfied that the applicant has resided in the UK for the time declared in their submission, they may be required to submit further documentation to evidence the duration of their residence.

Despite a few recurring technical issues when attempting to scan an applicant’s passport, the application system is generally straightforward and easy to use. The app can now be used on both Android devices and, since October 2019, also on iPhone 7 or above. For those that do not have access to such devices or simply require assistance with the application, the Home Office has set up 113 ID Scanning Locations and an Assisted Digital Service which aims to guide the applicant through the process from start to finish.

Costs and assistance
Initially applicants under the scheme during its pilot phase were charged a fee of £65 for adults and £32.50 for individuals under the age of 16. After much criticism by MPs, campaign groups and the public, these fees were scrapped in January 2019, and the applications are now officially free. There are however hidden costs that have been of particular concern for vulnerable applicants. For example, certain applicants who are unable to submit their biometric data via the mobile app may incur fees for booking biometric appointments at UK Visa and Citizenship Application Services (UKVCAS) centres. Although UKVCAS do offer free appointments, these are rare and generally appointments cost between £100 and £260. Applicants may also incur the costs for calling the Settlement Resolution Centre (SRC). The biggest hidden cost is the cost of obtaining legal advice where the application is not straightforward.

Thankfully, there are UK and international charities and non-governmental organisations which have proved vital in helping mitigate the impact of the hidden costs detailed above. These organisations have also helped vulnerable groups who risk being left out of the EUSS due to lack of access to the required technology or lack of relevant documents.

Processing and refusals
The standard processing time for EUSS applications was initially one to four calendar days, however currently the majority of applications are processed within five working days. According to the UK government website, it can take up to a month for some applications to be processed and in certain circumstances where the applications are considered more complex, it may take more than one month.

There currently appear to have been 600 refusals under the scheme as of 31 March 2020 which may suggest that the majority of applications were successfully approved and the correct grant of leave was obtained. The Independent Chief Inspector’s report however details that in the period between April 2019 and June 2019, 7,690 individuals who sought settled status were granted pre-settled status. Such numbers may show that there are also few de facto refusals which have not been taken into consideration in the statistics widely shared on the UK government and Parliament websites and which would portray a different picture of the progression of the current application process. This is especially concerning as the grant of settled status is far more advantageous than the grant of pre-settled status (which is in effect a temporary immigration status valid for five years only). The nature of the online application form may also prompt certain individEU Setuals to apply for pre-settled rather than settled status (for example where five years’ worth of records cannot be found with HMRC), unless an applicant actively disagrees with the result automatically generated by the online form. This may have the effect of disadvantaging those without legal representation.

Breaking continuity of residence – absences from the UK
One of the principle reasons for an individual not being eligible for settled status despite having resided in the UK for at least five years may be due to the level of their absences from the UK. Absences from the UK which exceed a total of six months in any 12 month period will break continuing of residence for the purpose of a settled status application (with limited exceptions, such as a single period of absences which did not exceed 12 months and was for an ‘important reason’ such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting).

The Home Office has recently confirmed to us that any absences lasting longer than six months will impact an applicant’s continuity of residence notwithstanding the reason for the absence and even where it is clear that the individual’s residence is in the UK. It has also confirmed that in order for the 12 month exception for an ‘important reason’ to apply, the absence must be continuous. As soon as the applicant returns to the UK (even if just for one day) this would be seen as resuming residence and the individual could not then continue to rely on this exception for the remainder of their 12 month absence overseas. Requiring people to stay away from the UK in order to fully rely on this concession seems counterintuitive and we are challenging the Home Office regarding this. The stringent requirements surrounding absences will be extremely concerning to the EU citizens who are currently stranded outside the UK and are unable to return due to travel restrictions.

Current challenge – COVID-19
Despite the current outbreak of COVID-19, it is still possible to make EUSS applications. A reduction of services dealing with EUSS applications has however been registered: The SRC has announced that they will only respond to emails, the postal route to send original documents is suspended and ID Document Scanning Locations and UKVCAS centres are closed until further notice. In addition, some of the UK and international charities and non-governmental organisations that have been assisting vulnerable EU citizens have had to limit their outreach activities following guidance from Public Health England (PHE). This means that certain applicants are unable to submit their applications for the time being.

The Home Office is continuing to process applications, however limited Home Office resources due to COVID-19 appear to be causing processing delays. In our recent experience, even straightforward applications are currently taking between one to two months to be processed.

Looking ahead
Despite a number of concerns and issues regarding the simplified application procedure, the introduction of the EUSS with its mobile app and digital system has signaled a dramatic improvement compared to the current traditional immigration application system. The Home Office have in fact confirmed that the technology used for the
scheme is likely to be implemented in the new UK immigration system which is due to be introduced in Autumn 2020.

There are approximately 15 months left until the EUSS closes in June 2021 and as we go through these challenging times it is difficult to determine how the scheme will continue to evolve. There was already a risk of EU citizens being unable to apply under the scheme before the deadline, which COVID-19 is highlighting more than ever. It is hopeful that the problems being caused by COVID-19 will cause the Home Office to recognise the need for flexibility in relation to those who miss the deadline through no fault of their own.

Boris Johnson has also confirmed that, despite the global pandemic, the government still has no intention to extend the transition period beyond 31 December 2020. It will be interesting to see whether this approach changes given the increasing severity of the pandemic and the economic issues it brings – if the transition period is extended then this could be extremely helpful in ensuring that eligible individuals are able to secure their right to continue to live and work in the UK.

Francesca Sciberras


Senior Solicitor

Ilaria Iovieno


Paralegal


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