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Post-Brexit, in order to regularise their continued residence, all EU+ (ie EU, EEA and Swiss) nationals (and their non-EU(+) family members) who had come to the UK before 31 December 2020 needed to apply to the EU Settlement Scheme (EUSS) before the deadline of 30 June 2021. One year later, we ask- is EUSS ‘done’?

On many levels, the EUSS has been a remarkable achievement by the Home Office (HO). Three years after the flagship digital scheme was introduced, over 5.4 million people have been granted an immigration status digitally – a remarkable feat. The availability of the EUSS Resolution Centre, and a support phone line for both applicants and professional advisers to contact staff directly, marked a welcome step change in user experience from the HO.

However, working for many is not the same as working for all and EUSS will not be “done” for a long time yet. There are four reasons for this.

First, although the deadline was 30 June 2021, late applications to the scheme can still be made. Frontline experience from GYROS, a charity who work with low-income migrants in Norfolk and Suffolk, shows that people are applying late when their employer or landlord requires them to produce a share code to prove their status.

The HO guidance lists reasonable grounds for making a late application, including being a child, having a serious medical condition, being a victim of modern slavery, or other compelling practical or compassionate reasons. So far, the HO appears to have been generous. There have been 596,500 applications to the EUSS since the deadline passed (as of May 2022) of which 211,900 were late applications (March 2022), 3% of the total (6.5 million) applications to date.

Second, there are significant backlogs in decision making processes, suggesting a scheme overwhelmed. Currently, there are 245,700 people caught in the backlog (May 2022). This includes those who applied on time and those who made late applications. This can have significant impacts on individuals (see the case of Fernando).

Fernando, a Portuguese national, thought he had applied for EUSS before the deadline. He came to GYROS in October 2021 asking for help with a share code; GYROS realised his application had never been submitted. The Resolution Centre advised GYROS to submit a new application. Fernando got his certificate of application (CoA) in December 2021. Further evidence was required by the HO and this was uploaded in February 2022. GYROS called the Resolution Centre again in May 2022 and was advised the application is still being processed. Fernando has been living in the UK since 2002 and he cannot get any work because he says the work agencies he approached have refused to accept his COA. He is not eligible to receive UC (universal credit) either because, without his EUSS, he needs to be in employment. He has a partner and a baby, and he cannot provide for them, his partner is receiving UC for her part only, which is not enough to sustain the family.

One cause of this backlog could be the scale of continued applications to the scheme- the HO says applications still average 55,000 per month since the deadline.

The EUSS backlog creates a further problem down the line. People who came to the UK after the end of the transition period (31 December 2020) when free movement had ended, nevertheless put in an application for EUSS, sometimes on the advice of unregulated advisers (advice sharks). These EU migrants may be given a CoA which gives them rights to work if the employer accepts it – but that is a false sense of security.  When the HO finally processes their claim, it will be turned down. This raises questions for the individuals and for the HO. Will the HO actually deport them or try to charge them for, for example, health care they have received but are not entitled to?

The third reason for the continued need for EUSS concerns the confusingly named ‘repeat’ applications. This concerns EU(+) nationals and their family members who have previously applied to the EUSS, were granted pre-settled status (PS) which lasts for five years, but who must then apply for settled status (SS) in order to remain in the UK indefinitely. 160,000 of the applications post-deadline have been ‘repeat’ applications (March 2022). For the scheme as a whole, 41% of applicants to EUSS have received PS.

This means that over 2 million people will need to make a second application for SS – or risk their status (and legal residency) expiring. This automatic loss of rights (expired status) is currently being challenged in JR (judicial review) proceedings by the Independent Monitoring Authority, the citizens’ rights watchdog the government was obliged to establish under the terms of the Withdrawal Agreement.

The requirement to ‘upgrade’ from PS to SS creates further problems. Those with PS each have their own deadline, which depends on their length of stay in the UK. There is a risk that many, especially the more vulnerable, will not realise either that they need to make the application or when the deadline for their application actually is.

The fourth reason concerns joining family members. There have been 122,100 applications from joining family members since the deadline (March 2022). A person can apply to the EUSS as a joining family member of an EU(+) national who was resident in the UK by the end of the transition period (provided the relationship existed by the end of the transition period – 31 Dec 2020).

So, a late application can also be made by a joining family member where there are reasonable grounds for their delay in making an application. However, only certain family members are eligible- such as spouse or civil partner, durable partner (with two years of cohabitation evidence pre-December 2020), dependent parent/grandparent, dependent child, grandchild. This means other family members, such as siblings, may be excluded.

And of course, there is more to this story than late applications. There are now over 5 million individuals (as well as landlords, employers and others) using their digital-only status to demonstrate their rights in the UK post-Brexit. People will need to be able to use, generate, share, interact with and update their digital status indefinitely. For many, especially those more vulnerable, or those lacking digital skills, this can be an impossible task.

So EUSS is a long way from being done. However, as other routes for settlement come online, such as those from Hong Kong (the UK government estimates that 5.4 million Hong Kong residents will be eligible to move to the UK under the BN(O) visa route and eventually become British citizens) or the HO response to the Ukraine crisis, resource is going to be spread ever more thinly and delays will increase.

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