The EU Settlement Scheme was designed to implement European Union (EU), European Economic Area (EEA), and Swiss citizens’ rights provisions of the European Union (Withdrawal Agreement) Act 2020. It grants UK immigration status by offering eligible citizens, and their family members, the opportunity to protect their UK residence following the end of the transition period (31 December 2020). This protection includes the ability to remain living and working in the UK as well as access to public services such as healthcare, education, and state benefits. To be eligible for status under the scheme, citizens must be resident in the UK prior to the end of the transition period, with some exceptions. The idea behind this is to allow these citizens to continue living and working in the UK, post-Brexit, on broadly the same terms as they did under EU law. The Home Office explicitly states in the ECHR Memorandum that, “insofar as [persons currently exercising EU free movement rights] will be affected by this Bill, the Department will ensure that the Convention rights of such persons are respected”.

THREE MILLION APPLICATIONS IN LESS THAN A YEAR

Since the inception of the EU Settlement Scheme on 29 March 2019, the Home Office has been receiving applications for pre-settled status and settled status. In less than a year, the Home Office received over three million applications to the Scheme, leading UK Home Secretary Priti Patel to celebrate “the hugely successful EU Settlement Scheme,” calling it “the biggest scheme of its kind in British history,” which “means that EU citizens can evidence their right for decades to come”.

Unsurprisingly, there was a rise in the applications made to the Scheme as the deadline, 30 June 2021, approached. Recent figures provided by the Home Office show that there have been a total of 6.02 million applications made to the EU Settlement Scheme as of 30 June 2021, with 5.45 million of these applications concluded. However, in the midst of the pandemic a large number of applications under the scheme face significant delays. As a result of the increasing uptake, the EU Settlement Scheme waiting time has exceeded the guidelines provided by the government website of five working days with some applicants having to wait up to six months for a decision. This has led to panic amongst EU citizens who remain unsure of their status in the UK as many individuals and families have been left in a situation of precarity as to their futures.

A COMPLEX SCHEME MISSES POTENTIAL APPLICANTS

Despite the current figures, there remains a large number of individuals who have yet to apply or who mistakenly believe that they are not required to make an application under the EU Settlement Scheme. Concerns have been raised for those who lack digital literacy given the risk this poses to the successful submission of an online application. These individuals may then be in breach of UK immigration law and will be subject to removal. This was an issue predicted by the Committee on the Future Relationship with the European Union, formerly known as the Exiting the European Union Select Committee, which expressed concern for EU citizens who may experience difficulty in completing the application process, who may not know that they are required to apply, or who do not possess the required documents needed to submit an application under the Scheme.

Consequently, the EU Settlement Scheme has been widely criticised due to the need for EU, EEA, and Swiss citizens, as well as their family members, to make an application to the Home Office rather than just having their rights recognised through a registration process. The need to make an application, albeit to no cost on the applicant, results in denials with some citizens unable to protect their residency in the UK. The UK government has failed to quiet fears that failure to apply under the EU Settlement Scheme will lead to an automatic deportation. With the UK government’s hostile environment policy limiting undocumented individuals’ access to employment, housing, and healthcare, the future looks bleak for citizens who did not manage to apply before the end of June 2021.

Wendy Barnes works as a Legal Associate in an immigration law firm whilst completing the Bar Vocational Studies on a part time basis. Outside of academia, she is a volunteer for a charity campaigning for women's rights and a competitive powerlifter, coaching a women’s only powerlifting group