In August, the government launched a trial (with NHS workers, university staff and students in the North West of England) of the EU Settlement Scheme.  However, we still do not know for certain the process for applying for the right to remain in the UK after Brexit.  The process could depend on the deal that the UK agrees (or otherwise) with the EU; and subsequent legislation.

What we do know is that there are likely to be groups of people who are eligible for settled status, who do not or cannot access it.

Earlier this year, Migration Observatory produced a report, Unsettled Status?, outlining the people who might be at risk of failing to secure their rights after Brexit, and the reasons why.

While these people will be in the minority of EU citizens in the UK (the exact or even approximate numbers are impossible to state, as the report makes clear), it’s important that those likely to be excluded are made aware of what they need to do, and can start working to solve some of the issues outlined in the report.

People who may not know they can and will need to apply for settled status

The report points out that many different people could fall into this category, but that specific groups include:

• Children whose parents do not themselves apply, do not realise that children need to apply, or mistakenly believe that their UK-born children are automatically UK citizens.
• Very long-term residents, such as the estimated 146,000 non-Irish [Irish citizens will not need to apply for settled status] EU citizens who arrived at least 30 years ago.  Very long-term residents may believe that the settled status process is just for more recent arrivals to the UK.
• People with permanent residence.  People with permanent residence [as an EU national, you acquire the right of permanent residence in another EU country if you have lived there exercising treaty rights for a continuous period of 5 years] may not realise that their ‘permanent’ status is not actually permanent and that another application is needed to receive settled status.
• People who are expecting to return home.  The report points out that “Many people who migrate do not have firm plans, and initial intentions to stay temporarily can lead to permanent migration as people integrate into work or meet partners. These people will not necessarily keep track of documentation to ensure they can apply later.”
• People who believe they are ineligible, such as people who have previously been rejected for permanent residence under the existing, more restrictive system (e.g. self-sufficient people without private health insurance), or people with minor criminal convictions or cautions.

Barriers to applying

• Vulnerable people may face barriers to successfully navigating the process.  This includes women in abusive or controlling relationships; children in care or children leaving care who may not have support in completing an application and may face difficulties proving residence due to frequent moves; victims of exploitation or trafficking; and some people with mental health problems.
• Language barriers and/or low literacy.  People with limited English proficiency may lack access to high-quality information about settled status and/or find it difficult to navigate the process of acquiring evidence.
• Age or disability, ranging from barriers to using an online system or identifying offline sources of help to problems associated with memory loss when sourcing evidence and identity documents.
• Digital exclusion, that is, lack of computer literacy or online access required to navigate a primarily digital system.

People who may it difficult to prove they have been living in the UK

The report states:

The government has said that the ‘user-friendly’ process will draw on existing government records such as HMRC tax records, so that most people do not have to send in any documents at all. Since employment rates for EU citizens are very high—81% in the fourth quarter of 2017 (ONS, 2018)—a large majority of applicants should fall into this category.

The minority of people who do not already have an official paper trail will presumably need to supply other forms of evidence that they lived in the UK before the cut-off date. Depending on how the process is designed, this might include either proof of address in the UK or proof of other activities here, such as work, study or daily life.

The current permanent residence process prioritises ‘formal’ proofs of address as evidence that someone has been living in the UK, such as documents from government sources, employers, landlords or education providers (e.g. tax bills, bank statements and leases)… Since some groups of EU citizens are likely to struggle to provide any of the formal sources of documentation listed above, their ability to prove residence may depend on decisions about what other forms of evidence to accept—such as contracts for services (e.g. car insurance), membership of clubs or libraries, personal letters and emails, social media activity, or testimonies from private individuals.

People who may have a limited paper trail to document their residence in the UK include:

• people without bank accounts
• people who conduct their daily life with cash rather than electronic payments may have limited paperwork; as may self-employed people in low-skilled jobs such as cleaning, construction or childcare in private households, who may have failed to pay tax either intentionally or inadvertently.
• people without a proof of address.  Not everyone in a household has documents in their name.  This could be because they are informally subletting, do not pay rent, or are part of a family where only one person’s name is on the paperwork.  People without clearly defined addresses are at greater risk of not having evidence of residing in the UK. This could include people who move regularly between locations to reduce costs (e.g. staying with friends or family) or people who travel for work.  Some people who live in communal establishments (e.g. hostels, B&Bs or caravan parks) will not have a defined address.
• people who arrive shortly before the cut-off date [to qualify for settled status under the proposed system, EU citizens would have to have started living in the UK before the agreed cut-off date , which is currently scheduled to be December 31 2020], who are less likely to have time to set up a bank account and/or acquire proof of address.  The self-employed will also not yet be captured in tax records on which the government hopes to draw.
• people without evidence of formal work in the UK – people who are not working or who are doing informal work in the home such as caregiving may lack evidence of their activities.  This will disproportionately affect women, as they are the majority of unpaid caregivers.
• young people not in employment, education or training may have no paperwork in their name
• people with jobs that are difficult to document.  This might be because they involve multiple short-term engagements, variable or unpredictable hours, informal HR practices with limited paperwork, a lack of a traditional employer-employee relationship, or all of the above.  This might include some agency workers and some people on temporary contracts, as well as some people working for small employers who may have less formal HR and book-keeping practices.

Additionally, some EU citizens do not hold passports or national identity documents (people in this situation are strongly recommended to obtain these), and therefore may struggle to prove that are indeed an EU citizen and thus eligible for the settlement process.

People who do not meet the eligibility criteria

The Migration Observatory’s report highlights that the the main category of EU citizen residents who could be ineligible are those with significant absences from the UK:

EU citizens who have already qualified for permanent residence can leave the UK for up to 2 years before losing their status. Those who leave the UK for more than 6 months in any 12 month period break their 5-year period of continuous residence (or 12 months if there is an important reason). If they do this before the cut-off date, the clock restarts and they may still be eligible 5 years later. However, people who break the period of continuous residence after the cut-off date are expected to lose eligibility for settled status … A large number of much shorter trips could, cumulatively, exceed 6 months in a given year…

In addition to people with absences from the UK, there are some groups whose eligibility has not been discussed in any detail. This includes non-EU unmarried partners of EU citizens who are separated, and non-EU spouses whose EU citizen spouse left the UK without filing for divorce or before divorce proceedings began; and non-EU citizens who are the primary carer for a UK citizen child (Zambrano carers)… In addition, it remains uncertain whether children who are not included in a parent’s application – for example because they are estranged from their parents – will be able to apply in their own right…