This week’s vote in Parliament against making the future immigration status of EU/EEA citizens and their dependents automatic will have dire, long term consequences. But why?


First published in January 2020.


The EU/UK Withdrawal Agreement allows for two ways to issue a new status to EU/EEA citizens:

◦ Application
◦ Automatic

Agreement on the withdrawal of the United Kingdom from the European Union. / Gov.uk

The choice between the two is political. But what is the difference and what are the consequences?

Application:

With an application process a new status will only be granted to those who successfully apply by the set deadline. A document proving the status will be issued afterwards automatically.

Automatic status:

A status written into law, in place immediately – as soon as the law is passed – with the option to issue document proving status through a separate registration process.

Both routes provide the same status and can be designed to issue documents proving the granted status, which can be used with employers, banks, landlords. But the application route puts a condition on obtaining that status: application by set deadline.

Applying in time: the deadline.

In contrast to the automatic route which provides a status immediately to everyone entitled, the application route has got an application deadline, June 2021. Anyone failing to meet that deadline will be without a lawful status.

Consequences of being without a lawful status.

Anyone without a lawful status in the UK will be subject to immigration enforcement with consequences ranging from losing job and place to live, up to detention and removal. The Home Office Minister, Brandon Lewis, confirmed this in October 2019.

PoliticsHome, 10 Oct 2019.

How big is the problem?

Citizens’ rights and migration organisations have estimated that the number of EU/EEA citizens at risk of failing to apply for the new status in time is in the hundreds of thousands.

This Migration Observatory report is very insightful.

Unsettled Status? Which EU Citizens are at Risk of Failing to Secure their Rights after Brexit? / The Migration Observatory

The Government reassured concerned MPs that they are investing money and resources in ensuring that hard to reach groups are informed and supported. The problem is that the Government does not know how many EU citizens it must process and how many it will have failed to reach by June 2021.

The size of the problem of EU/EEA citizens and their dependents failed to reach will only be visible after the application deadline, in June 2021. Like in the Windrush Scandal those who failed to apply for the new status will suddenly but slowly come to light.

The Pre-Settled Status timebomb.

June 2021 is not the only relevant deadline when it comes to the Settlement Scheme application route the Government has chosen. While Settled Status is indefinite leave to remain, Pre-Settled Status is only valid for 5 years from date of issue.

EU/EEA citizens and their dependents who were granted Pre-Settled status must re-apply for full Settled Status after fulfilling the conditions before the 5 years time limited leave granted via their Pre-Settled Status runs out. Failing to re-apply for full Settled Status before the 5 years leave granted through the Pre-Settled Status ends has got similar consequences to failing to apply by the June 2021 deadline: loss of lawful status, hostile environment and immigration enforcement. In contrast to the single June 2021 deadline for first application the deadline for upgrading from Pre-Settled Status to full Settled Status is an individual deadline – 5 years from the date Pre-Settled status was granted.

Also in contrast to the 2021 deadline the consequences of these individual deadlines will not be felt until September 2023, when the 5 years limited leave for those first ones who received Pre-Settled Status in September 2018, runs out.

The issue of and consequent fall-out from EU/EEA citizens and their dependents failing to reapply for full Settled Status will last until at least 2026 when those granted Pre-Settled Status in 2021 will have to apply for or lose their lawful status.

How big is the problem?

As of November 2019 over 900,000 EU/EEA citizens and their dependents were granted Pre-Settled Status. If current trends continue up to 1.5 million citizens will be granted Pre-Settled status – creating 1.5 million individual deadlines for re-application for Settled Status.

So, why, despite all the risks of the chosen application route to cause misery for thousands of EU/EEA citizens and their dependents, is the Government pushing for it? Ironically, apparently, it is to avoid another scandal that caused misery for thousands of UK residents, the Windrush victims.

The Government’s argument goes as follows: the Windrush Generation was granted automatic rights without the need to register and obtain documentation. With the Hostile Environment these citizens suddenly faced job losses and even removal – since they had no document to prove lawful status. Those in the Windrush Scandal had historic rights but no document proving those rights. The Government’s answer to avoid a repeat is not only to leave those who fail to apply in time without document but also to remove the historical rights to ever enable them to claim such document.

However, as shown above, the Home Office’s application process for EU/EEA citizens and their dependents does not reduce the risk of another Windrush Scandalit just increases the consequences for those affected dramatically.

◦ Does the application process guarantee the rights of EU/EEA citizens and their dependents as the Government claims?
No, only for those who apply (and re-apply) within the deadlines, and no Government scheme around the world ever achieved 100% compliance.

◦ Does changing the application process to a registration process reduce the risk of another Windrush Scandal?
The answer is no. But it does not increase it either and the consequences are much easier to remedy and rectify.

◦ Will an automatic status for EU/EEA citizens discourage people from registering and thus increase the chances of a larger Windrush type of scandal?
No, the Hostile Environment incentivises citizens to register at one point, latest when they come into contact with it.

◦ Will a registration process prolong a potential fall-out for the Government?
As laid out above the fall-out of the current application process will last at least until 2026 – but could last for decades – until the affected citizen comes into contact with the Hostile Environment.

◦ Does the3million advocate scrapping the EU Settlement Scheme?
No. Some Conservative MPs are concerned that changing the application to a registration process will mean that the EU Settlement Scheme will be scrapped. This is not the case. The current EU Settlement Scheme can simply be changed into a registration process with all checks kept in place. The only consequence would be that there would be no deadline and thus no risk of citizens becoming unlawful automatically by missing it.

◦ Does the Government defeating citizens’ rights amendments on Tuesday mean it is too late to for a registration process to be implemented?
No. First, the House of Lords can still bring amendments to force the change in the Withdrawal Agreement Bill. Second, as pointed out above, the EU/UK Withdrawal Agreement allows for both automatic and application route. The Government can, at any time, change its approach and convert the EU Settlement Scheme process from application to registration.



tl;dr — The current EU Settlement Scheme:

◦ Does not guarantee the rights to all EU citizens.
◦ Risks thousands of EU citizens becoming unlawful over a period of over 6 years.
◦ Does not prevent a Windrush type scandal but creates harsher consequences for those affected.


It is not too late to truly guarantee the rights of EU/EEA citizens and their dependents automatically – as promised by the Prime Minister during the 2016 referendum campaign.

Read more about the registration vs application process.🔷


PMP XTRA

Check their Voting Record:

🗳️ Brandon Lewis

🗳️ Boris Johnson




 

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[This piece was first published as a Twitter thread and turned into the above article on 11 January 2020, with the author’s consent, with the purpose of reaching a larger audience. It has been minorly edited and corrected. | The author of the tweets writes in a personal capacity.]

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the3million is the largest group of EU citizens in the UK, with a team of 50-ish active volunteers working on advocacy, policy, legal, media, social media, grassroots and events.