Leonarda, a French grandmother who has lived in the UK for 42 years, was threatened with deportation after details of her application for settled status after Brexit ended up in a junk folder.
Leonarda is one of tens of thousands of EU citizens living in the UK who have experienced problems with their right to remain, despite guarantees made after the EU referendum.
She received threatening letters from the Home Office about “the consequences of staying in the UK unlawfully” and was nearly denied re-entry to the UK after attending a family wedding in France.
Promises made to EU citizens
In his resignation speech on 24 June 2016 following the referendum result, David Cameron made a point of reassuring EU citizens living in the UK that “there will be no immediate changes in your circumstances”. A joint document by the EU and UK the following year made further guarantees: “Those who are yet to be granted permanent residency in the UK will have their rights protected, so they can still acquire it after withdrawal.”
In his first statement to the Commons in July 2019, former PM Boris Johnson reiterated these promises “unequivocally”: “I can assure them [3.2 million EU nationals] that under this government they will have the absolute certainty of the right to live and remain.” But we all now know that Johnson’s promises amount to very little.
The EU settlement scheme
The right for EU citizens to reside permanently in the UK (and British citizens in EU countries) was enshrined in Article 15 of the October 2019 EU/UK withdrawal agreement, for all those who had lived in the host country continuously for five years. However, this differed from the right of permanent residence which EU citizens experienced pre-Brexit and which was granted automatically.
Under the EU settlement scheme (EUSS), EU nationals living and working in the UK were required to apply for settled status by 30 June 2021. Confusingly, this included those with a permanent residence document. Those with indefinite leave to remain (ILR) did not need to apply but were advised to do so. People who had not lived in the UK for five years could initially be granted pre-settled status*.
There were initial assurances that the process of gaining settled status would be “transparent, smooth and streamlined” but those actually experiencing the process paint a very different picture. For instance, Silvana, an Italian woman who has lived in the UK for 14 years and had a permanent residence card, is among thousands who did not realise they had to apply for EUSS. She is furious at being faced with deportation, given wrong advice by the Home Office and being “treated like a criminal.”
Concerns about the settlement scheme
By 2020, concerns were already being expressed by Lords and Commons select committees, that EU citizens with a permanent residence document were unaware that they had to apply for EUSS. There was also “significant confusion amongst applicants” about whether they held ILR status or permanent residence – that is, whether they needed to apply or not. This may account for the numbers who did not apply by the deadline.
A fundamental problem is the lack of a physical document to confirm EU nationals’ status – the record is only digital – and this has given rise to many of the problems experienced by EU citizens. João da Silva, a Portuguese plumber who has lived in the UK for 20 years, was threatened with deportation because he did not have the correct technology to apply online and missed the deadline. When he tried to get help, the Home Office helpline did not understand him because of a speech impediment, but this was not considered ‘reasonable grounds’ for a late application. He has now started a legal challenge.
Grassroots group the3million, who support EU citizens in the UK, report numerous delays in people receiving decisions about their EUSS applications. As of June 2022, over 43,000 applications had been pending for over a year, with another 40,000 applications pending for six months to a year.
Proving EUSS can be difficult
Over a third of the problems reported to the3million relate to travel: “whether people are prevented from travelling abroad, trapped abroad and unable to come (back) to the UK”. Even those who can prove their EUSS status have experienced problems with boarding flights and may be held outside the UK for some time.
Although Article 14 of the withdrawal agreement protects the right to leave and re-enter the UK, the3million criticise “the UK government’s lack of clear communication to carriers” [airlines] and ‘ambiguous and contradictory UK policy and guidance”. For those with a pending application, there is a particular “complexity of rules” and there are also extensive problems with EUSS family permits.
Maria, a Spanish woman with a pending application, was forcibly flown back to Spain after a holiday, despite presenting to border officials her certificate of application and paperwork showing her right to live and work in the UK. Maria was told the documents were not valid and is now taking legal advice. She said: “I was supposed to be back at work but now my life has gone.”
Other issues concern the lack of physical proof of EUSS, which people are often asked for, and poor training or rudeness of airport and border staff. There are “disturbing reports of certain nationalities [such as Romanians] being singled out for hostile treatment” when trying to re-enter the UK and even asked to do a language test.
Settled but not secure?
A report by Settled, a charity supporting EU citizens in the UK, found that 42% of those they surveyed were moderately or very worried about their status in the UK in the future, including those who already held EUSS. A major concern was that the UK would revoke EUSS for no reason.
A Home Office spokesperson said: “All EU Settlement Scheme applications are carefully considered on their individual merits, on the basis of the evidence provided and in accordance with the immigration rules.”
However, the lawyer supporting João da Silva’s case (mentioned earlier) commented: “His case shows the risk that EU citizens who have been lawfully resident for many years may suddenly find themselves stripped of their rights overnight. The Home Office needs to carefully consider its approach to avoid another scandal comparable to Windrush.”
*Following a high court ruling against the Home Office in 2022, those on pre-settled status will not have to make a second application and most should be converted automatically to full settled status in 2024.
For anyone affected by these issues, contact https://the3million.org.uk/ or https://settled.org.uk/ groups for support.
