Settled is a UK charity providing immigration and rights advice to EU citizens and Ukrainian refugees in the UK. A distressing element of Brexit has been the threat to citizens’ rights – both UK citizens in Europe, and EU nationals here. A recent High Court decision which ruled government policy on EU citizens’ status is unlawful could provide greater certainty for those EU citizens who have chosen to make the UK their home; but an appeal means this isn’t yet settled, and right now people with ‘(pre)settled status’ often feel anything but.
The rights of EU citizens resident in UK after Brexit
Under the Withdrawal Agreement and the EU Settlement Scheme (EUSS), EU citizens resident in the UK prior to 31 December 2020 had to apply for ‘leave to remain’ to continue living in the UK. On the face of it, the EUSS appeared to guarantee this specific cohort the same benefits (to live, work, access healthcare, claim benefits) as UK citizens. All you had to do was apply online for ‘settled status’.
However, to qualify for that, you had to show that you had lived in the UK for five years; otherwise you could only obtain ‘pre-settled status’, or limited leave to remain, until you could evidence five years’ continuous residence. Those who failed to apply for settled status before their pre-settled status ended could lose the right to remain. This could have devastating consequences – inability to work, rent or own property, claim benefits or access health care; and even detention and removal from the UK.
Kate Smart, CEO of Settled, warned: “There are 2.6 million people in the UK with pre-settled status. We have deep concerns that many vulnerable people – the elderly, people with learning disabilities, in care homes, isolated, digitally excluded, and many more – are still not aware of the need to make this second application, or will be unable to do so. Through our Roma service, for example, we’re very aware of the huge challenges for many in this community to evidence residence: because of lack of tenancy agreements, fixed job contracts, bank accounts, etc – let alone being aware of the need to do so.”
Judicial Review launched against the Home Office
Luke Piper, head of policy and advocacy at the3million, another charity that advocates for the rights of EU citizens in the UK, recently said: “The way in which the government has implemented the Withdrawal Agreement means people with rights enshrined in law will be denied these rights if they fail to fill in another application before their pre-settled status expires. This is wrong, as their right of residence is not limited in time… This poses the threat of a scandal on the scale of Windrush and beyond.”
That threat may now have receded. Last year the Independent Monitoring Authority for Citizens’ Rights Agreements (IMA) launched a High Court judicial review against the Home Office. It argued that it’s unlawful that citizens who fail to apply for settled status before the expiry of their pre-settled status should automatically lose their rights; and that the need to ‘upgrade’ is “straightforwardly incompatible with the withdrawal agreement, which does not permit the loss of rights to residency to EU citizens in these circumstances.”
Giving judgement on 21 December 2022, Mr Justice Lane ruled that a right of residence can only be lost in very specific circumstances, and that the government’s policy was unlawful. This means that EU citizens who only have pre-settled status should not have to make a fresh application after five years’ continuous residence.
Although this is good news for the many EU citizens with pre-settled status, there is still uncertainty. The Home Office is appealing the judgement. It’s also unclear whether the Home Office will carry out checks to establish whether someone has been continuously resident, and whether lack of documentary evidence could still be a problem. It’s therefore important that citizens are able to access independent advice and support from organisations such as Settled. Kate Smart again: “Whilst we welcome this positive judgement, we are clear that the need for people to keep evidence and to make a timely application is still very important”.
Seeking advice
Settled is accredited by the Office of the Immigration Services Commissioner (OISC). Its solicitors and trained volunteers provide advice and assistance, and have direct contact with the Home Office to escalate complex cases where necessary. Its Roma service, in particular, assists vulnerable people in person to secure new documentary evidence of UK residence, and to make applications.
Staff and volunteers span the range of EU nationalities, with Bulgarians and Italians particularly well represented. Dedicated Brits are also involved. One of us (John Searby) is a retired solicitor based in Brighton, who volunteers on the email advice service. “I have a number of friends from Italy, Sweden, Spain who’ve lived in the UK for 40 years or more and were worried whether they’d have to return to their home country… Being able to help people navigate their way through the rules of the EU Settlement Scheme is so rewarding.”
Settled advice is multilingual and free: via 0300 223 5336, advice@settled.org.uk, or one of the Facebook language groups. They are always looking to recruit and train more accredited volunteers: www.settled.org.uk/volunteer And, like all charities, they of course rely on grants and donations to keep up their good work: www.settled.org/donate
See also EU Nationals – second class citizens in post Brexit Britain by Marianne Ebel March 2021
