What Now? The EU Settlement Scheme after the Deadline

By Madeleine Sumption

Five years after the EU referendum and six months after the end of the post-Brexit transition period, a key moment in the implementation of the new immigration system has arrived: the deadline for the EU Settlement Scheme (EUSS), on 30 June 2021.

However, the EUSS deadline is not the end of the story. From July 1, EUSS moves to its next phase. This commentary outlines a few key issues and looks at what happens next.

Why does the EUSS deadline matter?

EU citizens and their family members living in the UK are required to apply to EUSS in order to retain their right to live and work in the UK.

For people who needed to apply to EUSS and did not so by the deadline, the default position is that they lose their legal status in the UK on 1 July 2021. Loss of legal status can have major consequences in people’s lives. For example, people without status in the UK lose the right to work, rent housing, or access certain hospital treatment, and are potentially subject to removal.

The government will accept late applications where people have “reasonable grounds” for failing to meet the deadline. Government guidance on late applications says that “for the time being” late applicants will be given the benefit of the doubt when considering if they have reasonable grounds for missing the deadline. It lays out various examples of cases in which someone would be considered to have reasonable grounds, such as being a child whose parent or guardian did not apply on their behalf, having a serious illness or being a victim of domestic abuse. It also includes cases in which people were not aware of EUSS or the deadline “in light of their personal circumstances”.

However, the guidance also indicates that the approach will become stricter over time, so there is some uncertainty about how long this approach will be in place. People waiting for a decision on a late application will under current rules also be unable to start working or renting housing, until they receive a decision.

In other words, not having applied to EUSS has potentially serious consequences, although late applicants who come forward may be able to regularise their status, at least under current policy guidance (although this may change in the future).

The number of people who have not yet applied to EUSS remains unknown

There is currently no data on the number of people who have not applied to EUSS.

Approximately 5 million people had applied to EUSS by the end of March 2021, after accounting for repeat applications. These figures continued to rise as the June 2021 deadline approached.

This number of applicants greatly exceeds what the government or external analysts expected at the outset of the scheme, when the eligible population was estimated at roughly 3.5 million. As the Migration Observatory outlined in its April 2020 report, Not Settled Yet, there are several factors behind the unexpectedly high number of applications but the two most important are likely to be that:

• Official population estimates understate the total number of EU citizens living in the UK: some groups are excluded from the figures, and others are thought to be undercounted; and
• Some people who have applied to EUSS may no longer live in the UK. People with settled status can be absent from the UK for up to 5 years without losing their status. Some people with pre-settled status will have applied during a temporary stay in the UK and then left the country. As a result, we should very much expect the number of EUSS applicants to be higher than the number of eligible people living in the UK.

High application numbers do not tell us anything about who has not applied. However, it is clear that this number will not be zero. As the Migration Observatory explained in its 2018 report, Unsettled Status, no government programme achieves 100% coverage of its target population, regardless of how user-friendly and well communicated it might be. Even if 99% of the eligible population had applied —and this would be an impressively high share—the number losing their status on 1 July would still be in the tens of thousands.

Figure 1

There are no official estimates of how many EU citizens have not yet applied for settlement. A report in The Times in June – claiming to be based on data matching from HMRC, DWP and the Home Office – suggested that around 70,000 EEA citizens claiming UK benefits had not yet applied to the scheme (benefits claimants being only one subset of the total EEA citizen population). However, it is not possible to verify these numbers as they are not publicly available.

There is limited data on applications from vulnerable groups of EU citizens

Most EU citizens have found EUSS very easy to use, and have had no difficulty securing their status. From the outset of the scheme, however, the Migration Observatory and others have identified a range of groups of people who are at greater risk. This includes people who are generally considered to be vulnerable, such as victims of abuse and exploitation, children (including children in care), people with mental health problems or experiences of homelessness.

Since there are no data on the overall EUSS application rate, there are also no data on most vulnerable groups.

However, there is one area in which an important data-gathering exercise did take place. The Home Office collected data from local authorities to examine the number of children in care and care leavers who had been identified as eligible for the scheme. Of the 3,660 young people who had been identified as eligible, only 67% had applied by late April 2021. This percentage will be an overestimate if there are children and young people who needed to apply but had not been identified as eligible by local authorities. Local authorities responding to the survey most commonly said that barriers to applications were the difficulty obtaining identity documents and lack of cooperation from applicants or their family members.

Of the various different vulnerable groups who need to apply to EUSS, children and care leavers are the only ones for which there is a credible quantitative estimate of the share who have not applied. The figures do not tell us anything about application rates among other vulnerable groups, such as people with experience of homelessness, those with mental health problems, or victims of abuse. However, there is no reason to believe that children in care and care leavers are the only vulnerable group with substantial numbers who have not applied.

The figures illustrate that even despite high overall application rates and the ease with which most EU citizens have EUSS applications, it is possible for specific vulnerable groups to struggle to engage with the scheme.

Approximately 2 million people who hold pre-settled status will need to apply again to EUSS

While most of policy focus has been on the June 2021 deadline, for many people who have applied and been granted status through EUSS, the requirements are not fully complete.

This is because many applicants have received ‘pre-settled status’. This is a temporary status that lasts for up to 5 years. Pre-settled status holders who want to live in the UK permanently will need to reapply to the scheme later to retain their residence rights.

By the end of May 2021, the government had made 2,276,200 grants of pre-settled status, representing 43% of concluded applications. (Note that this includes some people who have been granted pre-settled status twice. For example, people who left the UK and returned before the end of December 2020 might have applied again. Their numbers are not known but were less than 100,000 by the end of March 2021.)[1]

By the end of March 2021, only 147,660 applicants had moved from pre-settled to settled status. These low figures will reflect the fact that pre-settled status lasts for 5 years, so even where people are now eligible for settled status they do not have to apply immediately.

There are thus roughly 2 million people who have pre-settled status and will need to apply to EUSS again if they want to remain permanently in the UK.

Figure 2

The challenges people in this group could face has received relatively little attention in debates about EUSS. At first glance, it may appear that enabling people with pre-settled status to ‘upgrade’ to settled status should be easier than initially including them in the scheme. Indeed, the government now holds their contact details and plans to remind them to reapply. (Note that as yet, applicants who want to move from pre-settled to settled status simply apply to the scheme again from scratch – there is currently not a separate process for converting from one status to the other.)

For certain groups of people, however, the challenge will be greater the second time around. First, more evidence is required for a grant of settled status than pre-settled status. Applicants could get pre-settled status based on a single piece of evidence that they were in the UK before the cut-off date. Settled status requires evidence of a full (more or less continuous) five years of residence – a more demanding task, at least for those who need to supplement the automated checks.

Second, long absences from the UK due to Covid-19 or other reasons could jeopardize people’s pathway to settled status. This is likely to be less of a problem than it would have been without a recent change in guidance from the Home Office. The Home Office in June 2021 expanded the options for people to retain their path to settled status if they are out of the country for up to 12 months, if the reason was related to Covid-19. Certain people who meet more exacting requirements (e.g. having been explicitly advised not to return to the UK by an employer or university) may retain eligibility if they are outside of the UK for more than 12 months.

There is currently no reliable data on the number of people who have been outside of the UK during the pandemic, for how long, and whether they plan to return. There is now something approaching a consensus that headline figures suggesting a decline in the EU-born population of several hundreds of thousands were not accurate, and resulted from disruption to data collection during the pandemic. Exploratory analysis from ONS for the second quarter of the year suggested that around 44,000 EU migrants may have left the country during that three-month period, and presumably more may have followed them later in the year as EU citizens continued to lose jobs in substantial numbers.

People who leave the UK for at least a year would generally be seen as long-term emigrants under normal statistical definitions. It is not possible to know at this stage how many of those who left plan to come back to the UK, and to what extent those who do plan to return are aware of the impacts of their absences on their UK immigration status. Pre-settled status remains valid when people spend up to two years outside the country, which means that some people may return and continue to enjoy legal status, but later realise that they had become ineligible to apply for settled status and remain in the UK permanently.

Finally, without new data collection efforts, it will not be possible to know which pre-settled status holders are still in the UK, and thus what share successfully move to settled status in practice. This is because some of the roughly 2 million people with pre-settled status are likely to leave the UK permanently or will already have done so. While many EU migrants have settled permanently in the UK, there has always been a considerable number of temporary migrants too. Before the pandemic in the year ending June 2019, for example, ONS estimates that EU citizens made approximately 350,000 short-term trips to the UK (lasting between 1 and 12 months).

What happens next?

By the end of May 2021, approximately 330,000 applications to EUSS had not yet been concluded. The size of the ‘backlog’ fluctuates over time, and tends to rise in months when larger numbers of applications are submitted, such as in December 2020. According to recent guidance introduced by the Home Office, people waiting for a decision on an application submitted before the deadline should in principle be able to continue life as normal in the meantime—although there have been reports of delays issuing ‘Certificates of Application’ that applicants need in order to demonstrate their status to landlords or employers.

People who miss the deadline would lose their legal status and the rights that come with it, such as the ability to work or rent housing. Their numbers are unknown, although data on late applications will presumably be published in due course. Home Office guidance says that potentially eligible people who are encountered by immigration enforcement will be given 28 days to apply late to EUSS (although this temporary non-enforcement is guidance rather than law). Even where an EU citizen is regularised by applying late, there could be longer-term consequences, since gaps in lawful residence can potentially affect citizenship applications.

Finally, note that EU citizens and their family members who lose their status because they have not applied to EUSS, or because they do not reapply after receiving pre-settled status, will not necessarily be aware of this immediately. People only need to demonstrate their immigration status at specific times, such as if they apply for a new job or rent new housing. Employers and landlords are not expected to check existing EU employees’ status again after the deadline. As a result, it could be some time before EU citizens who have missed the deadline and do not need to demonstrate their status to anyone realise that anything has changed.

Thanks to Charlotte O’Brien for comments on an earlier draft. This analysis was supported by Trust for London and the ESRC’s Governance After Brexit programme. An earlier version of this analysis was submitted as written evidence to the House of Lords EU Affairs Committee’ inquiry on Citizens’ Rights.

 

[1] The Home Office has started to provide data on repeat applications, although the figures available as of June 2021 did not make it possible to separately identify people who have been granted pre-settled status more than once. The data identify that 95,800 people were granted pre-settled status following either a previous grant of pre-settled status or another outcome (e.g. their earlier application was rejected).