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Catherine Barnard and Fiona Costello set out four ongoing issues with the EU Settlement Scheme highlighted by their research with the migrant support charity GYROS in Great Yarmouth.

EU free movement to the UK (and vice versa) ended almost 2 years ago. The EU Settlement Scheme – the digital application system for EU, EEA and Swiss nationals and their non-EU family members (EEA+) living in the UK – had a deadline of June 2021 (although late applications are still possible). Applicants could apply for Settled Status (EUSS) after 5 years’ residence or Pre-Settled Status (EUPS) if resident for less than 5 years.

For many, the scheme was a great success. Over 6 million people have been granted status. The scheme also offered a step change in practice for the Home Office. It was flexible about the evidence allowed, and the advisers in the Resolution Centre were helpful and accessible.

However, as we have written elsewhere, these large numbers and statistics can hide the lived reality of a smaller (but still significant) number for whom the application was/still is a challenge. Our research with a migrant support charity, GYROS, in Great Yarmouth, reveals continued issues with the scheme. We want to focus on four.

First and foremost is the need for individuals to apply to ‘upgrade’ EUPS to EUSS. This requirement is currently subject to judicial review  proceedings brought by the Independent Monitoring Authority (IMA) set up under the WA to ensure EEA+ citizens’ rights are protected.  The IMA is arguing that the current situation, where citizens who fail to apply for EUSS before the expiry of their EUPS automatically lose their rights to stay in the UK, is unlawful.

For many the evidence threshold for EUSS (although flexible) was too high – individuals (particularly women separated from their partners) not generating the correct paperwork (e.g. household bills in their own name) struggled to provide proof of residency. For the first deadline (June 2021) many who could not prove residence accepted EUPS as a ‘safety net’; this safety net will be removed if they fail to re-apply for EUSS (again having to prove 5 years residence where similar problems of proof may arise if they have not generated the ‘right’ paperwork in the meantime).

Many are unaware they need to make a further application, and individual deadlines rather than a general one (as previously) may leave many only realising after the fact that their status has expired.

And decisions on status can vary. For example, GYROS is working with a married couple who moved to the UK at the same time, rent the same house and who work in the same factory. The wife has received EUSS; the husband only EUPS. He now needs to make another application for EUSS, providing additional evidence to support his application, which his wife did not need to do.

Second, there continue to be issues in securing rights for joining family members.

Take the example of Ptor*, a Romanian national who had been granted EUPS but his three children (all under 21) were refused applications as joining family members because he had only EUPS, not EUSS. Ptor’s adviser believes that he meets the definition in Appendix EU of a ‘relevant sponsor’, even though he has only EUPS. He also struggles to afford the £80.00 per child fee to review the decision as he is in low- paid factory work. A further complication has now arisen: one of the children has just turned 21, pushing them into an older age category whereby they must now prove dependency on their parent (the relevant sponsor), a requirement not imposed on those under 21.

Third, a new issue facing those advising people applying to the EUSS via paper application is that the Resolution Centre say they are not able to give updates to third party representatives without an application number. This means that the client will need to have access to proof that their application has been submitted, or have been issued with a certificate of application which they can share with their adviser before GYROS is able to make enquiries on their behalf to the Resolution Centre.

This might seem obvious – and technical – but this is a real problem for those on the margins. Many of GYROS’ clients have limited digital skills and many more are unable to speak/read English. This can make tracking down/ being aware of application numbers/email addresses difficult.  Clients are able to make their own enquiries without their application number, but due to language/literacy, this is not an option.

There is also the issue of ‘advice sharks’, which we have written about before. They keep all information and log in details for their ‘clients’ who then have to pay the shark to access their own details. The Resolution Centre’s requirements play into the sharks’ hands.

Fourth, for most of 2020 EU nationals were unable to apply for NINOs (national insurance numbers), given capacity issues in HMRC during the lockdown. When the application process reopened, EU nationals could not apply for a NINO without having EUPS/EUSS. Now, in late 2022 the problem is the opposite: EUSS applications are being refused due to lack of a NINO. GYROS says some of their clients are in a catch-22: they cannot apply for a NINO without EUSS/EUPS and they cannot receive EUSS/PS without a NINO.

Take the case of Domantas*, a Latvian national who arrived in November 2020. GYROS helped him to make an application for EUPS, including sending evidence of his bank statements, employment contract and payslips for this period to prove his residency. He has been asked to provide proof of his NINO which is not listed on his payslips, as NINO applications were closed when he arrived. Domantas has been asked to obtain additional evidence from his employer, identifying the employer’s company number. Yet one of Domantas’ employers during that period has now closed down. EU nationals with unsympathetic employers may refuse to provide this additional evidence. For individuals like Domantas this invalidates years of his residency evidence if the Home Office refuses (at least in some cases) to accept payslips without a NINO as valid evidence of residence in the UK.

For EEA+ nationals seeking GYROS’ help, these four issues have real consequences affecting their right to live, work, and access (free, secondary) healthcare and benefits. For GYROS, funding to support EU nationals can be hard to obtain (GYROS are not funded by the Home Office to provide support) as many funders assume settled status should be, well, settled by now. The charity deals with 30 or so cases each week as it continues to navigate the fallout from Brexit.

By Catherine Barnard, Deputy Director, UK in a Changing Europe, and Fiona Costello, both of the Faculty of Law, University of Cambridge.

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