Legal safety net for those the government fails to reach in time
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EU citizens were promised that our rights to remain in the UK would be granted automatically. Instead, the Government is making us apply to stay in our home. Anyone who does not apply by the deadline (30th June 2021) will not have a legal basis to stay in the UK and will face the hostile environment and possible removal from the UK.
That is the reality of the Government’s position, no matter how many times they repeat the phrase “EU citizens and their families are our friends, neighbours and colleagues and we want them to stay”.
What is the problem?
No application scheme in the world has ever managed to reach 100% of its target audience, and therefore the EU Settlement Scheme, in its current application form, is guaranteed to create ‘Windrush on steroids’.
Whereas Windrush victims were legal but struggled to prove it, EU citizens who do not have settled or pre-settled status after the deadline will not have legal status.
Even if the EU Settlement scheme performed as well as the UK's most successful campaign - to switch everyone to Digital TV (97% of people signed up by the time analogue TV was switched off) - this would mean over 100,000 EU citizens losing legal status and facing the full thrust of the government's hostile environment policy: loss of jobs, housing, benefits and healthcare treatment.
Is there a solution?
the3million has a constructive proposal to address this – a proposal we have been putting to the Government since 2017.
Very simply put, it says that the Settled Status application system is turned into a registration system – where we register simply to gain documentary proof of our status – a status which we would already have because it would be guaranteed by an Act of Parliament.
Therefore anyone who has not registered by the deadline – and remember there will always be people who will not have done so, for a wide variety of reasons mostly through no fault of their own – will not have lost their legal status, they will merely lack the proof that they have status.
And when they find out they need that proof - since after the deadline employer, healthcare and other service providers can demand proof - they can simply go and register their status. That’s all there is to it.
Why is the Government wrong to say this would cause another Windrush?
The Government argues that such a system – known as a declaratory system – created the Windrush scandal.
This is not true however. It was the advent of the hostile environment that created the Windrush scandal.
For decades people did not need proof of their status, but suddenly they did. People who were legally in the UK, but did not have a passport or proof of ILR (Indefinite Leave to Remain), struggled to retrospectively prove their legal status, requiring documentation from 40 years earlier.
That won’t apply in our case – while the hostile environment is still in place, the Government is simply wrong to suggest that there would be no incentive to register one’s status in a declaratory system.
EU citizens who haven’t registered before the deadline will find out very shortly after that they won’t be able to access healthcare, jobs, or other services without the registration.
If the Government rejects our proposal:
=> these citizens will have lost their legal status
If instead the Government adopts our proposal:
=> these citizens will simply be asked to go and register their status.
For more detailed information:
Detailed paper by EU Law Academic Stijn Smismans “Protecting EU Citizens in the UK from a Brexit ‘Windrush on Steroids’: A Legislative Proposal for a Declaratory Registration System’
A report by NPC (New Philanthropy Capital) "Settled Status: What level of take-up an we expect?"
Interview by Stefanie Bolzen of Die Welt, in which of Brandon Lewis, Immigration Minister admits that citizens who do not apply by the deadline are liable to removal from the UK. The article is in German, see The London Economic for an English reference.
UK in a Changing Europe blog - EU settlement scheme: are warnings of 'Windrush on steroids' overblown?
An explanation of the Hostile Environment, including many media articles
bit.ly/t3m_BiE_DeclaratoryConstitutive_v2 explanation of how the Withdrawal Agreement provides a choice between a declaratory or a constitutive system
Finally, our publications library page lists our campaigning and lobbying documents all the way back to 2016.