In the fraught context of Brexit, the need to register EU citizens already resident in the UK presents a major conundrum of policy, law, and administration. The government’s answer is the EU Settlement Scheme. It is expected that millions of people, from a wide variety of different backgrounds, will apply to this Scheme to secure their right to continue living in the UK after Brexit. Many already have.

While there has been lots of discussion about the rules governing status and certain aspects of the registration process, less has been said about the wider model of administrative justice that underpins the Scheme’s operation. By “administrative justice”, I mean the processes by which decisions are made and the routes through which individuals can challenge them.

The wide range of administrative justice issues raised by the Scheme is the subject of a new research report published today by the Public Law Project. Quick and uneasy justice: an administrative justice analysis of the EU Settlement Scheme examines four key areas:

1. the legislative and policy design of the Scheme (i.e. the form of the rules);
2. the initial application process;
3. redress systems;
4. and the support and advice landscape.

In respect of each of these components, there are multiple complex and interrelated issues which require close scrutiny (including the bizarre “no deal, no appeal” situation). But the headline point about administrative justice in the Scheme can be put simply: it represents a new and distinct model of immigration administrative justice, which has automation of decision-making at its centre.

The new automated model of administrative justice

The EU Settlement Scheme represents a significant departure from the Home Office norm as regards initial decision-making. As is well known, the traditional norm is a paper application on a form, with attached evidence, submitted to a human caseworker who then makes the decision based on law and policy. A decision letter usually then follows.

This typical system will be part of the process under the Scheme, but it will effectively become an ancillary process, with automated data checks being given priority. On the basis of the trials conducted so far, these automated checks are the sole basis on which a decision is made in the majority of cases. This switch fits into a pattern of a rapidly growing role of technology, and particularly automation, in the Home Office and the public sector more generally (I cover the wider landscape in a recent book, which is available open access online). 

The automated part of the application process uses an algorithm to check HMRC and DWP data for proof of residency. Specifically, three fields of data— the applicant’s name, date of birth, and National Insurance number—is sent automatically to the DWP and HMRC.

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Once this information has been received by those two departments, it is transferred to a “Citizen Matching Layer”, which identifies the applicant and searches the respective departmental databases for details about the matched applicant. The information is then relayed back to the Home Office and transferred to its “business logic” — an algorithm which is yet to be disclosed publicly — which processes the information to establish the period of continuous residence in the UK. The basic details of this data sharing is set out at Table 1 below, and the data sharing system between HMRC and the Home Office is represented at Figure 1 (this latter figure is taken from the excellent MedConfidential analysis of the system).

Where the data checks do not result in a pass, applicants will be required to submit additional evidence for those periods not sourced by the automated data checks. This is where human engagement begins.

Table 1: General data sharing structure

Figure 1: Home Office and HMRC data sharing scheme

Advance of the algorithms

What is to be made of this new model? As with any model of administrative justice, there are various possible strengths and weaknesses. At a very high level of analysis, the likely trade-offs involved are broadly identifiable.

On the one hand, the Scheme may produce quicker decisions at lower cost to the taxpayer—both are potentially benefits which should not be understated. On the other hand, it is clear that the Scheme represents an acceleration of an existing trend in immigration towards quick justice at the expense of important safeguards (this can be related to, for example, the removal of tribunal appeal rights in favour of administrative review).

The likely result of this shift, in the longer term, is that there will be greater divergence in individual experiences of administrative justice. Furthermore, automation is likely to produce new types of grievance and more thought will need to be given to how redress processes are tailored to accommodate them. Building an evidence base on the operation of the Scheme, and its underlying model of justice, is imperative to monitor the Scheme, but also to see how these trade-offs play out in practice.