2. Overview of the EU Settlement Scheme
The policy background
The UK voted to leave the European Union in June 2016. Throughout the campaign, high profile Brexiteers promised that, if they won the referendum, EU citizens living in the UK would retain their legal right to live and work here, and would be ‘treated no less favourably than they are at present’. The Home Office committed to find a way to fulfil this pledge.
The outcome was the EU Settlement Scheme (EUSS) announced in 2018. The EUSS was designed to give a clear legal status for EU citizens and their families already living in the UK. Applications opened on the 21 January 2019, with the deadline set for the 30 June 2021. All EU citizens (and any non-British partners) had to apply for Settled Status to remain in the UK, with the exception of Irish citizens, for whom it is voluntary as their rights are already protected under the Common Travel Area Agreement.
The government’s ambition was for everyone who is eligible for Settled Status to receive it. In other words, for 100% coverage.
The application process for Settled Status was designed to be ‘user friendly’ compared to other immigration applications. For the vast majority of EU citizens, the application had to be completed on a smartphone, with the use of a document checker app to verify the applicant’s identity.
The process was designed to take less than an hour to complete, and this proved true for most applicants. However, there were a significant minority who consistently struggled with the process (see How has the EUSS been operating? below for more detail).
There were three steps to the application process:
- Proof of identify: ID is scanned using the smartphone app. After which the rest of the application is completed on the gov.uk website.
- Proof of continuous residence in the UK: For most applicants this is done automatically through HMRC and DWP checks. If insufficient evidence is found, the applicant can supply extra evidence manually.
- Criminal convictions check: To check for serious or multiple offences which may hinder an application.
For any applicant who is struggling with their application, the Home Office set up the ‘EU Settlement Scheme Resolution Centre’ where support workers can offer guidance via phone or email.
Settled vs Pre-Settled
Provided an applicant meets all the necessary criteria, they will be offered either Settled or Pre-Settled Status. If the applicant has been resident in the UK continuously for five years or more leading up to their application, then they should receive Settled Status. This grants full access to healthcare, state benefits and a pension indefinitely. If not, they will be offered Pre-Settled Status, which has some limits on benefits available and the amount of time a recipient can spend abroad without losing their status. This reneges on the promise to treat EU citizens ‘no less favourably than they are at present’. After five years, Pre-Settled Status expires, and applicants will need to reapply to gain Settled Status or become unlawfully present in the UK.
The £65 fee
Initially, the Settlement Scheme had a £65 application fee. This was fiercely criticised by civil society groups as breaking the ‘treated no less favourably’ promise and was seen as a barrier for the most vulnerable. Following campaigning by TAF grantees and others, it was announced on 21 January 2019 that the application process would be free. From 30 March 2019 the Home Office started refunding application fees already paid by applicants during the test phases.
It was the responsibility of EU citizens to apply for their own Settled Status. Nothing would be automatic. This created a major worry that awareness of the Settlement Scheme would not be high enough to hit the 100% target.
The Home Office announced in early 2019 that ‘the initial marketing campaign which has been allocated around £3.75 million would run for around a month, with further activity planned over the next two years.’ Civil society groups including TAF questioned whether this was sufficient, particularly for the people least likely to apply. In TAF’s paper, Settled Status, what level of take up can we expect we compared this marketing plan with the switch to Digital TV which cost £200m over 5 years. It must be remembered that nobody knew for sure how many EU citizens there were, or who they were, so it was not as simple as just sending everyone a letter.
Responding to concerns from TAF and other civil society groups that outreach and support was not sufficient to ensure that all vulnerable EU citizens would secure their status, the Home Office set up a grant scheme awarding a total of £9 million to 57 charities supporting vulnerable EU citizens.
These grants were for a combination of work to raise awareness of the Settlement Scheme and support vulnerable groups to apply for Settled Status. This funding ran until June 2020. The Home Office announced a further £8 million in March 2020 for a range of organisations to continue this support through the rest of the year.
Two bodies were responsible for oversight of the EUSS. The Independent Chief Inspector of Borders and Immigration (ICIBI) was responsible for oversight once Brexit was underway but prior to the UK leaving the EU. Since the UK left, responsibility for oversight moved to the Independent Monitoring Authority (IMA).
The IMA examines ‘systemic issues’ with Settled Status. It receives complaints from EU citizens, their families or legal representatives and has the power to launch enquiries and take legal action and judicial reviews if issues are not fixed. So far, no judicial reviews have been accepted, seemingly because the court wanted to wait until harm actually happened, rather than accepting evidence that it was likely to happen.
The Withdrawal Agreement Bill stated that the IMA would sit within the Ministry of Justice but would be ‘independent with its own legal personality separate from government’. There have been concerns among civil society that the nominating process for its board may compromise the IMA’s independence from those whom it is meant to be scrutinising, which will have implications for its ability to remain impartial.
How has the EUSS been operating?
The number of applications to the EUSS has been far higher than anticipated, with 5.3 million applications received at the time of publication, and just under 5 million people receiving Settled Status or Pre-Settled Status. Individuals can apply multiple times. For example, it is the only way to upgrade one’s status from Pre-settled to Settled.
A major issue with tracking the effectiveness of the scheme is that we do not have exact figures on the number of EU citizens who live in the UK. The ONS estimated around 3.4 million in June 2019. However, the high application figures suggest that was wrong. The ONS has since revised those numbers upwards twice but we still don’t have accurate information to know how many more people need to apply to the EUSS.
Even if just 5% have not applied, this would mean hundreds of thousands of people lose their right to live in the UK. The Home Office has said that there will be some leniency to those who miss the deadline for good reason, yet it has given little clarity on what it will accept as a good reason.
Issues with the online process
The EUSS is an almost entirely digital process and status—most applications are carried out online, and the final proof of status is digital. The Home Office has resisted calls for distributing a physical card, similar to the biometric residence permit carried by non-EU immigrants. This has led to several problems.
Firstly, some of the most vulnerable EU citizens face digital exclusion which makes the application process difficult or impossible to carry out without support. For example, people who are elderly, have mental impairments, homeless, in prison, or victims and survivors of domestic abuse, trafficking or modern slavery.
Secondly, the EUSS document checker app at first only worked on Android phones, not iPhones. Around half of phones in the UK are Apple devices, so this was a considerable barrier. At the time the Home Office’s official guidance was (and still is for those without a smartphone) to ‘use someone else’s phone to prove your identity’.
Thirdly, even for those able to access the system, many have faced technical issues using the app and online forms, such as being unable to scan their documents or upload extra evidence.
Finally, having a digital proof of status means that proof of right to live and work in the UK—such as is needed to get a job or rent a house—is different for EU citizens compared to others. This may mean that landlords and employers who are used to conducting a physical document check are unsure of what to do and may be biased against EU citizens.
The Home Office announced on 24 March 2020 that it would be closing the settlement resolution centre because of the Covid-19 pandemic, but would continue processing applications—albeit at a reduced rate. There was initially no phone support available, but the settlement resolution centre was responding to emails. These phone lines later reopened.
Reports from charities working on this issue suggest that the closure of the Home Office helpline had a big knock-on effect in terms of increased demand and that when it did re-open the Home Office service was still limited. There is no official data on whether this has delayed application turnaround for any applicants, and the Home Office has resisted any calls to extend the deadline.
Where is civil society campaigning focussed?
Towards a declaratory scheme
Simply not realising that the burden is on you to apply to continue to enjoy the rights you already had remains one of the biggest barriers to EU citizens securing Settled Status. TAF grantees such as the3million, JCWI, the Public Law Project and the Brexit Civil Society Alliance have therefore called for the EUSS to be changed to a ‘declaratory scheme’.
Under a declaratory scheme, all EU citizens resident in the UK would automatically be protected under the EUSS (provided they pass the evidential requirements). Registering would simply give them the opportunity to prove a status that already exists. This would ease concerns about a large amount of EU citizens not applying by the deadline.
The Home Office has pushed back on this request. They argue that a declaratory scheme was part of the reason the Windrush Scandal occurred. Civil society organisations including TAF are sceptical of this claim and it remains contentious.
Targeting vulnerable EU citizens
In the absence of a declaratory scheme, civil society groups have prioritised ensuring all EU citizens apply. Campaigning is particularly focused on those identified as vulnerable to missing out. This has involved appeals through national media, outreach through employers, non-English language media, and grassroots community outreach of different kinds.
Particular groups identified as at risk of missing out by the Migration Observatory at Oxford University include the elderly, long term UK residents, those digitally excluded, those in prison, Gypsy and Roma traveller communities, and EU citizens born outside of the EU.
Getting a physical document
Groups like The3million have pushed the Home Office to give a physical document to EU citizens as well as the digital status currently offered. They point out that the digital status will not work for everyone, particularly those who face digital exclusion, nor will they always be available on demand without internet access. Most immigrants receive a physical biometric residence permit, which is what employers, landlords and others required to check immigration status are used to. Critics therefore worry that landlords, employers, and others may not accept the digital status as authentic and may discriminate because of it.
JCWI and The3million have been collecting stories of EU citizens who have already found it difficult to access housing and jobs. JCWI have argued that this is likely to be worse for people working in sectors with higher exploitation. It is also likely that this will be worse for non-white EU citizens who may be subject to racial discrimination and be asked for a higher level of evidence. The Home Office has resisted these criticisms and has carried on with a digital-only status.
Pre-Settled vs Settled
The distinction between Settled Status and Pre-Settled Status creates problems. At the time of publication, just 53% of concluded applications led to the full Settled Status. 44% were offered Pre-Settled Status. In 2019, it was estimated that 53% of EU immigrants had lived in the UK for more than ten years (twice as long as required for Settled Status). This makes the proportion receiving the full Settled Status much lower than expected, which may indicate that people are being given the wrong status but are not challenging it.
Pre-Settled Status gives fewer rights than Settled Status (see Section 2). Furthermore, Pre-Settled Status expires after five years, after which people must reapply to secure Settled Status. The process is not automatic. The Home Office has committed to sending email reminders, but critics are concerned that these will be easily missed as they may go into spam folders or people may change their contact details, so many people may unexpectedly find themselves without the legal right to live in the UK.
 The3million, (2020), ‘Broken promise campaign’ available online here: the3million.org.uk/brokenpromise-campaign
 Home Office (2020) EU Settlement scheme statistics, available online here: https://www.gov.uk/government/collections/eu-settlement-scheme-statistics
 Migration Observatory (16th April 2021) EU made up much higher share of net migration after 2010 than official figures suggest
 Statista (Accessed 4th May 2021) Market Share of Mobile Phone Operating Systems in the UK from 2010 to 2020.
 Home Office (2020) Apply to the EU Settlement Scheme, available online here: https://www.gov.uk/settled-status-eu-citizens-families/what-youll-need-to-apply
 The Guardian (2019) ‘I’ve been here 50 years’: the EU citizens struggling for the right to stay in Britain’ available online here: https://www.theguardian.com/politics/2019/oct/08/ive-been-here-50-years-the-eu-citizens-struggling-for-the-right-to-stay-in-britain
 JCWI (2019) Our letter to party leaders on the EU Settlement Scheme, available online here: https://www.jcwi.org.uk/news/our-letter-to-party-leaders-on-the-eu-settlement-scheme
 Migration Observatory (2020) Unsettled Status – 2020: Which EU Citizens are at Risk of Failing to Secure their Rights after Brexit?
 The3million We need a physical document to prove our rights (Accessed 14th May 2021).
JCWI (2020) ICIBI Inspection re: How the EU Settlement Scheme is working for vulnerable groups: JCWI Response.
 Home Office (2020) EU Settlement scheme statistics, available online here: https://www.gov.uk/government/collections/eu-settlement-scheme-statistics
 The Migration Observatory at the University of Oxford. Permanent or temporary? How long do migrants stay in the UK? https://migrationobservatory.ox.ac.uk/resources/briefings/permanent-or-temporary-how-long-do-migrants-stay-in-the-uk/