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The EU Settlement Scheme: One Lawyer’s Take

Following the UK’s departure from the European Union, EU nationals living in the UK will have to apply for either Settled Status or Pre-Settled Status before 30 June 2021 if they wish to continue living here after that date.

This requirement came as quite a shock to a great number of EU nationals, many of whom have lived here for decades and who quite rightly already believed that the UK was their home. Many feel indignant at having to physically apply for confirmation of their status. This is especially so given that those EU nationals who thought that they had previously applied to settle by applying for what is known as Permanent Residence under the EEA Regulations, will still have to replace this with Settled Status under the new Appendix EU Immigration Rules.

Essentially, the current system requires all EU nationals living in the UK, estimated at three to four million, to make an application before 30 June 2021.

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    Overview

    What is causing a good degree of concern are comments like those from Minister Brandon Lewis last year who suggested that EU citizens who do not apply for settled status could face deportation. Such a prospect and such language cause an enormous amount of anxiety and distress for many EU citizens who have made their homes and lives here in the UK.

    This requirement came as quite a shock to a great number of EU nationals, many of whom have lived here for decades and who quite rightly already believed that the UK was their home.

    The process for applying for Settled Status or Pre-Settled Status has not been without its technical problems and the mobile phone app used to make the application and scan passports have only recently become available to iPhone users.

    The obvious danger with the government requiring an active application for Settled Status or Pre-Settled Status is that there will undoubtedly be a significant number of EU nationals living in the UK who fail to make an application prior to 30 June 2021. It is not difficult to imagine this happening in the case of vulnerable individuals, the elderly or isolated, those experiencing difficulties in obtaining passports or ID cards, those who are not IT-literate or who lack access to a mobile phone or computer, or those who are simply unaware of the requirement.

    [This has casued] an enormous amount of anxiety and distress for many EU citizens who have made their homes and lives here in the UK.

    The greatest fear is that with such people we could see another Windrush Scandal where those who have in some cases spent the vast majority of their lives in this country, people who have built their homes, families, jobs, and communities here will be sent back “home” simply for being unable to prove their status. Such a prospect is frankly horrifying to people who should have their status confirmed automatically and who should be issued with a physical document to confirm their status.

    The existing scheme provides no physical evidence of Settled Status or Pre-Settled Status, with applicants simply issued with a reference number and an electronic document as confirmation. In the aftermath of Brexit and changing Immigration Rules affecting migration from the EU, a lack of physical evidence of one’s status could prove problematic for EU nationals with Settled Status demonstrating their UK residence to Immigration Officers when travelling in and out of the UK, let alone when dealing with forms of immigration control outsourced to landlords, employers and when accessing health care.

    The greatest fear is that with such people we could see another Windrush Scandal…

    If the system was instead declaratory, by introducing the basic premise that all EU nationals living here prior to the UK’s departure from the EU on 31 January 2020 acquire either Settled Status or Pre-Settled Status, this would have safeguarded their status in the country. A scheme could instead have been introduced to encourage EU nationals to register and obtain a physical document to confirm their status. In doing this, the government would have avoided the very real scenario whereby those EU nationals who fail to make an application under the Settlement Scheme prior to 30 June 2021 risk being in the UK ‘illegally’ and threatened with removal. Our friends, colleagues and family members from the EU deserve much better from us and we should hope that the estimated 1.5 Britons who have made their home in the EU aren’t also treated so precariously.

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