The Home Office has been concealing important data about the EU Settlement Scheme, an independent inspection report suggests. While the department refuses to release the number of “disguised refusals”, or to disclose gender breakdowns relevant to its equality law obligations, it appears to have had that information at its fingertips all along.

The much-delayed inspection report

A report on the inspection of the EU Settlement Scheme was completed by the Independent Chief Inspector of Borders and Immigration last September. It then languished at the Home Office for 21 weeks before publication, instead of the statutory eight. No wonder Chief Inspector David Bolt said that “the data for applications, outcomes and the efficiency of the Home Office’s processes are now historic”.

Why was publication delayed for so long? After all, as we pointed out yesterday, the findings don’t seem particularly scathing at first glance.

However, there’s much to digest here as the report covers much ground and runs to 69 pages. On a more careful reading, a number of issues emerge.

This post zooms in on disguised refusals and equalities monitoring, which raise concerns about the Scheme’s outcomes and transparency. We’ll try to follow up by looking at other issues the report identifies, in particular processing times and vulnerable applicants.

What are “disguised refusals”?

EU citizens who can establish that they have been living in the UK for five years are eligible for settled status, a form of indefinite leave to remain. Those living here for less than five years get pre-settled status, which expires unless the person remembers to lodge a further application.

In July 2019, while this inspection was taking place, Chris Desira of Seraphus Solicitors told a parliamentary committee:

There have not been any refusals [under the Settlement scheme], but the statistics do not tell us how many people were granted pre-settled status when they should have been granted settled status. The Home Office are not treating the refusal of settled status as an immigration decision, so no one is being refused settled status; they are simply told that they are getting pre-settled status instead.

Since then we have seen multiple examples of EU citizens being granted pre-settled status, despite being eligible for the full settled status. We also know that some of these decisions were overturned as soon as they were made public. Some pre-settled status holders who contacted us at the3million got settled status decision within days of going public, without being asked for any additional documents.

How many disguised refusals are there?

What remained a mystery was: how many such cases are there? The Settlement Scheme doesn’t actually ask applicants about their length of residence, but the number of cases where the status granted differed from the one that was asked for is a decent proxy for the number these disguised refusals.

The Home Office, however, has never agreed to share this data.

It is now available in the Chief Inspector’s report. Page 45 shows the number of people who applied for settled status but were instead granted pre-settled status during the inspection period:

The report notes that the downward trend may “indicate that caseworkers have become more skilled at assisting applicants to obtain settled status”, but concludes it is not possible to tell at this stage.

It is also interesting to see that the Chief Inspector seems to agree that such cases represent de facto refusals, even if the Home Office is not keen on saying this out loud.

To put these numbers in context: at the end of June one in every 100 applicants to the Settlement Scheme was not getting status they applied for, and one in 35 of those granted pre-settled status sought settled status instead.

Since then, the proportion of all applicants granted pre-settled rather than settled status has risen from 35% to 41%, peaking at 47 percent in November 2019. The Home Office is not publishing information on how many of these applicants were hoping to get settled status instead — but as we have just seen, the case management system clearly allows for this to be reported on. The decision not to do so raises questions of equality of outcome for all applicants, and transparency of reporting.

Equality monitoring

We still know little about the Scheme’s approach to preventing discrimination and ensuring equality. In yesterday’s report, the Chief Inspector joins a chorus of stakeholders calling for the Policy Equality Statement for the Settlement Scheme to be made public.

The Home Office has accepted this recommendation and committed to publishing the Policy Equality Statement “by spring 2020”. [“Spring” in Whitehall-speak tends to mean July or August – Ed.] This is a welcome, if much delayed, decision.

The Scheme’s outcomes are not monitored for discrimination based on many fundamental characteristics. For example, no data are collected on race, ethnicity, or disability. Some equalities information is included in the quarterly statistics, but the Chief Inspector’s report shows that the data on age that the Home Office collects is much more detailed than what is published. The latter only has three age brackets, with the middle one stretching from 18 to 64.

Breakdown of decisions by gender concealed

Even more troublingly, the statistics have never included any breakdown of applications or decisions by gender. In autumn 2019, we submitted a Freedom of Information request asking for

1. a breakdown of applications received by gender, and
2. a breakdown of status granted by gender.

The Home Office refused, citing the cost. It also discouraged further enquires:

The cost limit outlined above has been exceeded due to gender not being a mandatory field on EU Settlement Scheme applications. As such, to provide the information you have requested accurately, further information would need to be either requested from individuals, or found through manual searches of individual’s records. To do so would be neither cost nor resource effective.

If you were to resubmit a revised request then we would reconsider it. However, any request involving the gender breakdown of EUSS applications is likely to exceed the cost limit for the reasons explained in this letter.

This response looks extremely dubious in the light of yesterday’s report. At paragraph 6.83 it states that a “Live Dashboard” function does capture data on applicants’ gender. The Dashboard

reports data on a daily basis [and] provides ‘snapshots’ showing, for example, a breakdown of applicants by age range, and by nationality and gender, and the number of days taken to complete cases.

This fragment of the report suggests that the Home Office has had data on gender at its fingertips all along. But for some reason those data are neither reported on in the supposedly “granular” quarterly statistics, nor disclosed in response to our Freedom of Information request.

Left in the dark

These two points are fundamental because they directly link to questions over the Scheme’s discharge of the Public Sector Equality Duty.

The Home Office has shied away from answering legitimate questions about the rise of pre-settled grants, or about equality of application outcomes for men and women.

Mr Bolt’s report suggests that answers to these questions are just a few clicks away. And yet we may have to wait until his next report to find out.

My thanks to Axel Antoni from the3million for his contribution to this article.