Immigration minister Kevin Foster sets out details of what will happen to those who miss the deadline
With the deadline for applying to the EU Settlement Scheme (EUSS) now just days away, news media reported yesterday that EU citizens living in the UK who fail to apply in time will be given a 28-day warning from the Home Office to submit an application.
The notices will be issued by Immigration Enforcement and will advise people to apply for settled status, BBC News reported yesterday.
Details of the 28-day notice had been previously published in the Home Office's EU Settlement Scheme caseworker guidance (see page 30 of the guidance here from 21 May).
As we reported on EIN last week, there are concerns that many thousands of EU citizens will fail to register by the 30 June deadline and will lose their rights overnight.
BBC News reported, however, that the Government sought to allay those fears. It reported: "Immigration minister Kevin Foster said anyone whose application was not concluded by next week's deadline would not lose out, as their rights were protected in law. He added that immigration enforcement officials would begin issuing 28-day notices to people, advising them to apply for settled status."
Dundee's Courier newspaper handily provided the full text of Kevin Foster's statement.
Foster was quoted as saying:
"From July 1, Immigration Enforcement will introduce a new procedural step for those believed to be EEA citizens or relevant family members who may be eligible for EUSS status on the basis they were resident in the UK by 31 December 2020, but failed to apply by 30 June 2021.
"In such cases, Immigration Enforcement will issue a '28-day notice for the EUSS' to advise the individual to take urgent action to establish their lawful status by making a late application to the EUSS. This will need to be done within 28 days of the issue of the notice.
"The 28-day notice for the EUSS provides contact details for the EU Settlement Resolution Centre and information on how to make an application. It signposts individuals to support services, including technical assistance and translation. In accordance with Article 18 of the Withdrawal Agreement, no action will be taken in relation to any person with an outstanding EUSS application, whether it was made by the deadline or after it, this is similar to our general approach where non-EEA nationals have outstanding applications.
"With regards to benefits and public funds, as you are aware, the Home Office worked with HMRC and DWP on a data matching exercise to identify people who may not have applied to the scheme, but are eligible. Letters have been sent out to these individuals giving them step by step, practical advice on how to apply to the scheme to protect their existing rights in the UK.
"A second data matching exercise will take place after the June 30 deadline, to identify those still yet to apply to the EUSS. The Home Office will write to them, giving a further 28 days to apply to the EUSS, after which we will notify DWP and HMRC of those who have still not applied. Those departments will then make a casework decision based on the circumstances of the case.
"Employers and Landlords do not need to conduct retrospective checks on EEA Citizens who are in continuous employment or rental agreements after June 30. However, if they do come across someone who hasn't applied, they should encourage them to apply as quickly as possible and can contact Home Office Checking Services to obtain a reasonable excuse to continue employing or renting to individuals."
According to ITV News, the Government has said that around 400,000 EUSS applications are still waiting to be processed, and only a "small minority" of EU citizens have yet to apply at all.
ITV News added that Kevin Foster said he was "concerned" over claims that EU citizens with outstanding cases were facing a legal limbo or cliff edge, and he dismissed them as being "just untrue".
Despite the assurances, the Law Society warned yesterday that a "legal crevasse" awaits the most vulnerable EU citizens in the UK.
According to the Law Society, solicitors continue to report that many of their clients who are eligible have no idea of their need to register under the scheme, indicative of a far wider group across society who don't yet appreciate the imminent seismic shift in their status.
I. Stephanie Boyce, president of the Law Society, warned: "EU citizens under the care of local authorities and in residential homes are among those most likely to find themselves without access to essential support when the deadline for applying for EU settled status passes in just over one week's time.
"Anyone who does not apply by the deadline will become unlawfully resident in the UK overnight. They will be at risk of losing their jobs, bank accounts, tenancies, access to the NHS and welfare benefits.
"Some may be able to apply late with a 'reasonable excuse', but in the interim a new home or job may be at risk as 'right to rent' checks by landlords or 'right to work' checks by prospective employers would flag applicants as ineligible. People may also find themselves barred from essential health, social or welfare support."
Luke Piper, the head of policy at the3million campaign group, told the Guardian: "We know the types of people who will not be making applications. They are the vulnerable, people like victims of trafficking, modern slavery, the elderly, children. That paints a pretty grim picture of potentially thousands of people who are already identified as in vulnerable categories by the Home Office who will miss the closing date and have to face potential life-changing consequences."
Colin Yeo, of Garden Court Chambers and Free Movement, warned on Twitter today: "In a week's time, once the deadline for the EU Settled Status scheme expires, we're going to see in action the consequences of deputising immigration controls to a range of private, untrained actors. This is the 'hostile environment' system created by Theresa May. It is largely intact today, although renamed the 'complaint environment'. We've seen how it works before with the Windrush scandal. People supposedly not 'intended' to be affected were. Lives were ruined."
Yeo added: "What happens to EU citizens will be largely beyond the direct control of government ministers and civil servants, because it largely won't be government officials who carry out immigration checks on the ground."
Bernard Ryan, Professor of Law at the University of Leicester, has this week authored a new briefing note for ILPA that considers the legal consequences of missing the 30 June EUSS deadline.
You can read the 10-page note here.
Ryan argues that the underlying legal position as regards the status and rights of those EU citizens who miss the deadline remains uncertain, and further clarification from the Home Office is needed.
Ryan concludes in the note: "[T]he Government's approach to EEA+ nationals and their family members rests upon the theory that such persons will 'require' leave to remain from 1 July 2021. The correctness of that approach must however be considered uncertain: it is in tension with the older ‘lawful presence’ analysis; the interpretation that leave may be 'required' without being obligatory, lacks persuasiveness; and, that interpretation has not been tested before the Supreme Court."