3.6 million EU citizens (and their non-EU family members) are currently living in the UK based on EU free movement rights. After Brexit they will need a new replacement status.
Since the UK never implemented a mandatory registration of EU citizens, a large-scale catch-up is needed, and in a limited time.
The new EU Settlement Scheme (EUSS) was therefore launched in March 2019.
As at the end of October 2019, there have been over 2.4 million applications to the scheme. Given a deadline of December 2020, the scheme looks very successful.
However, campaigners and media continue to warn that the scheme in its current form will lead to ‘Windrush on steroids’.
Are these warnings justified? And if they are, can any measures be taken now to avoid problems for future governments?
The warnings relate to citizens who miss the EUSS deadline, and whose reason for doing so does not fall into a narrow list of exemptions.
The reason for the ‘on steroids’ part of the claim is two-fold: campaigners say the consequences will be more severe, and the scale will be larger than we saw with the Windrush scandal.
Consequences
Windrush victims suffered devastating consequences because, with the introduction of the ‘hostile environment’ many years after they had arrived in the UK, they could not evidence their status in order to receive NHS treatment, access jobs or rent accommodation.
However, because they were legally resident in the UK, once the scandal came to light the government was able to make amends and set up a compensation scheme.
In contrast, citizens who miss the EUSS deadline will have lost their legal status, regardless of whether they can evidence it. Therefore in addition to facing the ‘hostile environment’, they face potential detention and removal from the UK.
Indeed, the Home Office minister Brandon Lewis recently confirmed this in an interview with the German newspaper Die Welt. As soon as the first such removal case arises after 2020, the media backlash could be strong.
Furthermore, the European Parliament, which will need to ratify future trade deals, stated in a recent press release they would continue to examine issues including ‘possible consequences for EU citizens who fail to apply to the EU Settlement Scheme before the application deadline’.
Potential scale
Campaigners say that the numbers of citizens caught up in a potential EUSS scandal will be on a larger scale than the numbers involved in Windrush.
A study by NPC about the expected take-up of the scheme examines many other regularisation processes word-wide, most of which achieved somewhere between 45% and 85% reach.
Only one scheme, in India, had near universal take-up, but this was over a period of seven years, in several phases, offered financial and other incentives and had extremely low bureaucratic barriers.
The report concludes that if just 5% of the estimated EU population living in the UK do not register, 175,000 people would be left without status. This is several times higher than those involved in the Windrush scandal.
Researchers highlight that not only are vulnerable citizens at risk of not applying, but also many who are aware of the scheme but do not believe it applies to them.
So what can be done to minimise the chances of a future scandal?
To tackle this question, it is first necessary to explain the two possible foundations on which a settlement scheme can be based: ‘declaratory’ and ‘constitutive’.
The draft Withdrawal Agreement offers a choice between these two approaches.
A ‘declaratory’ system is one where eligible citizens are given the new status by legislation. They can go through a registration scheme to obtain proof of that status.
Being a British citizen is an example of a declaratory system – British citizens are British citizens by law, regardless of whether they have applied for a British passport.
A passport is needed to travel abroad, but without a passport they are nevertheless still a British citizen.
A ‘constitutive’ system is one where the citizen does not have the status until they apply for it. Beyond the deadline they will not be able to apply, even if they would have fulfilled the conditions.
This is more like membership of a sports club: you are not a member until the club has processed a successfully completed application form.
People who don’t apply – even if they could satisfy the entrance criteria – are not members.
The EUSS has been set up as a constitutive system, and campaigners are calling for it to be changed.
Why has there been reluctance to change the EU Settlement Scheme to a declaratory scheme?
Various responses to parliamentary questions, for example by the Home Secretary in February, and the Minister of State for Immigration in July, show two reasons for this reluctance.
First, there is a belief that the Windrush scandal occurred because the status of those pre-1973 citizens was declaratory.
However the real cause was the fact that in the 1970s citizens did not need proof of their status to live their lives in the UK. The demand for proof of status only came 40 years later, by which time it was very difficult for some to provide that evidence.
Second, there is a fear that EU citizens would have no incentive to register a declaratory status.
This is a misunderstanding of what campaigners are calling for: they are proposing a solution that combines declaratory status with a mandatory registration system to obtain proof of that status.
With this declaratory scheme, there will still be a deadline after which employers, the NHS and other entities can demand proof of status.
Anyone who has missed that deadline will face an incentive to register almost instantly, rather than 40 years down the line.
Yes, they will face practical problems, but crucially they will not be at risk of detention or removal. They can simply belatedly register their pre-existing rights.
Changing the legal underpinning of the EU Settlement Scheme can therefore make all the difference to avoiding a future ‘Windrush on steroids’ scandal.
By Monique Hawkins, a volunteer advocate for the3million, campaign organisation for EU27 citizens in the UK.
