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A “technical note” – not all that technical, and only four and a half pages long – published this afternoon pulls together some already-announced proposals on how the application system will work, and in some areas adds to them. An accompanying press release confirms that the note has been “sent to the European Commission as part of negotiations”
Refreshingly, the paper admits that the Home Office will not be up to the job if things carry on as they are:
The UK recognises that the system it currently has in place for dealing with the processing of registration certificates and residence cards under Directive 2004/38 is not fit to deal with the situation after we leave the EU.
See further the data we obtained on rising waiting times for these documents.
“Lessons”, apparently, will be learned from this. The priority, as we have heard before, will be to “minimise the burden of documentary evidence” and make the system “user-friendly”.
Other elements of the paper are familiar too. The two-year window for applications has been floated previously. The Prime Minister has already mentioned that “user groups” to test the system have been set up, and we knew from Amber Rudd that people will be able to apply voluntarily for this status before Brexit actually happens.
The note also confirms that
The fee for applying for this status will not exceed the cost of a British passport [£72.50].
But adds
The cost will not be linked to other Home Office immigration application fees, for example, the fee for indefinite leave to remain or naturalisation as a British citizen.
Is this a hint that the fee will not rise hugely year on year, in the way that other immigration fees do?
People with an existing permanent residence document will be able to exchange it, subject to some extra checks. This may not be to the EU-27’s liking:
9/ If you already have an EEA residency docs, it's easier still. However, suspect EU will question why they need to go through this process at all, especially a 'security check'. pic.twitter.com/uoC8AD9iUg
While the extra checks for existing permanent residence document holders will not include re-doing the previous residence assessment, they will be subject to a check of “ongoing residence”. This may have implications for EU citizens who have left the UK for significant periods after gaining permanent residence status – for work, say, or to look after a family member abroad.
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Another advantage of having permanent residence documents already is that holders pay an unspecified amount less for settled status than entirely new applicants. Looked at another way, this is a disappointment: previous notes left open the possibility that they could be exchanged for free.
On eligibility, the note says that
EU citizens and their family members who can evidence to the UK authorities that they fall within the scope of the Withdrawal Agreement (i.e. are lawfully resident before the specified date) must be granted status by the UK authorities unless one of the grounds for refusal permitted by the Agreement is met. The UK authorities will have no discretion to refuse an application in other cases. We have already agreed with the EU that the conditions for EU citizens acquiring permanent residence/settled status under the Agreement will be as per the conditions set out in Article 16 of Directive 2004/38 (five years of continuous and lawful residence as a worker, self-employed person, student, self-sufficient person, or family member thereof).
The press release says that “we expect the majority of cases to be granted”. That, one would think, hardly need be said, given that there are perhaps 3.6 million EU citizens living here. Even a small minority of refusals would render hundreds of thousands unlawfully resident.
Well, not the majority. What percentage of 3 million though: 10-20-30?
In what would be a break from years (decades?) of Home Office precedent, a “pragmatic approach” is promised,
for example, by not checking that comprehensive sickness insurance has been held by those who are not economically active or are studying, or applying a genuine and effective work test. We will also not seek to account for undocumented periods where we are satisfied that, overall, the residence requirements have been met, meaning people will not have to account for every trip that they have taken in and out of the UK.
This appears to be in response to specific EU concerns. But the “concessions” remain worryingly light on detail. In effect, the Home Office is saying “trust us, it’ll be fine.”
Similarly,
A principle of evidential flexibility will apply, enabling caseworkers to exercise discretion in favour of the applicant where appropriate, to avoid unnecessary administrative burdens.
Applicants will be asked for a photo, but not other biometric information.
There will be both an administrative review of decisions, and a statutory right of appeal. Access to an independent remedy is a welcome move but with appeal waiting times for EEA cases already running at 45 weeks even before the inevitable post-Brexit rush and the Home Office holding onto passports during that time, this may be scant consolation for those affected. Missing is any mention of a role for the Court of Justice of the European Union. That is still a sticking point in the Brexit negotiations.
In terms of “criminality”, checks will be carried out, but offences committed before Brexit will lead to deportation only insofar as EU law permits today. “Post-exit” conduct will lead to deportation under the (harsher) rules that apply to non-EEA citizens, with the caveat that “a person’s previous, pre-exit criminality may also be taken into account in order to make a holistic assessment of whether deportation is appropriate”.
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In some ways the beginning of the note is the most significant. It makes explicit that “obtaining this [settled] status will be a condition for lawful residence in the UK”. In other words, woe betide anybody who fails to apply in time, for whatever reason good or bad. They will be rendered unlawfully resident, will be committing a criminal offence and “may be asked to leave”.
That said, there are signs that this harsh reality might be mitigated, with recognition “there may be good reasons why some people may not have applied in [the two-year] period”. The note says that:
• where applications are submitted but a decision has not been made before the deadline, the applicant may continue to reside in the UK until the decision is made; and
• where individuals without status are encountered after the deadline, a proportionate consideration will be made of their circumstances at that time and any reason why they did not apply for status before the deadline. Where there were good reasons for an individual not to have made an application, the UK authorities will consider exercising discretion to allow an ‘out of time’ application for status under the Withdrawal Agreement.
It remains to be seen whether these worthy intentions can be put into practice on the ground, especially given the sheer administrative burden the process will entail. As we have consistently said, a far easier solution in terms of time and resources would be to passport over existing EU law rights into the post-Brexit era by operation of law, and with no need for an application. Why is this not being done? Go back to the press release: “we expect the majority of cases to be granted”. The government wants to deny a minority of EU citizens the right to be here after Brexit. That is the point of all this.
CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.
