3: Immigration and the European Union Settlement Scheme

In this chapter, the authors explore the operation of European Union Settlement Scheme (EUSS), introduced post Brexit to address the immigration status of EU nationals who were already resident in the UK. A digital-only scheme, requiring Wi-Fi, smartphone and digital IT skills, as well as a good grasp of English, the EUSS brought with it particular difficulties for the EU migrant workers in Great Yarmouth. Other aspects of their lives – informal living arrangements without tenancy agreements, work without payslips – affected their ability to apply under the EUSS. Yet pre-settled status, for those resident for less than five years, and settled status, for those resident in the UK for over five years, has become a precondition for EU migrant workers and their family members to be able to continue to work, live, claim benefits and receive healthcare in the UK.

A. Introduction

Prior to Brexit, because EU nationals living in the UK were exercising their EU right to free movement, they were not subject to any UK immigration control, except in limited circumstances.1 While for some, free movement, mainly under Article 45 TFEU, had an aspirational element, since it allowed ‘citizens to move to Warsaw, Marseille or Berlin for love, work, to learn a language’,2 many of GYROS’ clients came for work in the chicken factories (chapters 4 to 7). EU free movement to the UK has now ended, following Brexit.3 However, under Part Two of the UK–EU Withdrawal Agreement (WA), those who had already exercised their free movement rights by the time of Brexit would have their rights protected. In the UK, the formal mechanism to protect those rights – the EUSS4 – was introduced in March 2019 in anticipation of the obligations under the WA to protect the residence rights of EU nationals (together with those from Norway, Iceland, Liechtenstein and Switzerland) and some non-EU family members (NEFMs) of EU nationals who had already exercised their free movement to the UK. It allowed these groups (who we shall call ‘EU+’) to apply for settled status, while those with less than five years of residence could apply for pre-settled status up to 30 June 2021. Having one or other of these statuses – and maintaining that status – is now mandatory for lawful residence in the UK, and the gateway to accessing (or continuing) employment (which we discuss in Chapter 4), housing (Chapter 5), welfare benefits (Chapter 6) and healthcare (Chapter 7).

For the residents in the House, the EUSS had not been an issue (during fieldwork in Autumn 2021, post the deadline). Apart from one resident (Vida, who was fluent in English and was digitally literate), each of the other residents had already lived in the UK for more than five years, and all were working. This meant that they had been able to make applications for settled status, which they did either on their own or with the help of family members (Edita, for example, helped Rasa to make her application).5 Vida was able to apply for pre-settled status. Our focus in this chapter is, therefore, on the people who went to GYROS for help with their applications. We draw on data throughout the life of the EUSS (pre and post deadline)6 and catalogue the practical issues applicants experienced when navigating the scheme, both in the early days and presently.

One of the themes running throughout this book is the issue of paper trails and bureaucratic bordering of migrant communities, particularly for those whose lives are precarious. In relation to the EUSS, these issues are particularly stark, as individuals struggle both to generate the right documents (due to lack of payslips or informal tenancy agreements) and to cope with the digital EUSS application. How GYROS advisers respond to these difficulties – helping their clients understand the requirements of the EUSS, giving practical advice, translating documents, contacting the relevant people – also shines light on how frontline community organizations operate.

This chapter therefore looks at the obligations in respect of Citizens’ Rights under the WA (Section B), and the legal foundations of the EUSS, the process of making an application under EUSS and how this fits with the ‘hostile environment’ that EU nationals feel they are exposed to (Section C). It then considers the issues facing EU+ nationals in Great Yarmouth who have applied/are applying for the scheme, and the help they sought from GYROS for difficulties in obtaining and maintaining their new status and how GYROS responds (Section D).

B. Withdrawal Agreement

After the UK left the EU on 31 January 2020, EU law continued to apply until the end of the transition period (11 pm GMT on 31 December 2020).7 So the EU rules under Article 45 TFEU on free movement of workers, Article 49 TFEU on freedom of establishment and Article 21 TFEU on free movement of EU citizens applied until the end of 2020, as did the Workers Regulation 492/118 and the Citizens’ Rights Directive (CRD) 2004/38/EC.9 The CRD gives every EU citizen the right to reside in another member state for an initial period of three months with no conditions on their stay (apart from holding a passport or ID card).10 The right to reside for more than three months remains subject to certain conditions, such as exercising Treaty rights as a worker, jobseeker or self-employed person.11 EU or third country national family members can reside with the EU migrant.12 Article 45 TFEU and Regulation 492/11 give EU migrants the right to ‘look for a job in another EU country; work there without needing a work permit; reside there for that purpose; stay there even after employment has finished; enjoy equal treatment with nationals in access to employment, working conditions and all other social and tax advantages’.13

If there had been no agreement between the EU and the UK, EU free movement rights would have ended on 31 December 2020 and all EU nationals would have become subject to the Immigration Act 1971 (hereafter ‘the 1971 Act’), irrespective of whether they were already in the UK or seeking to enter the UK. Section 1 of the 1971 Act provides that those without the ‘right of abode’ in the UK are subject to a system of control; Section 3 provides for the grant of leave to enter or remain for either a limited or for an indefinite period. Indeed, that is the legal position for EU nationals seeking to enter the UK after the end of the transition period: EU citizens are therefore now subject to the 1971 Act in the same way as anyone else who lacks the right of abode.

However, Part Two of the WA, given legal effect in the UK via Section 7A of the European Union (Withdrawal) Act 2018,14 provides residence rights for ‘Union citizens who exercise their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter’ (Article 10(1)(a)).15 Article 16 WA says that EU nationals can acquire the right to reside permanently in the UK once they have completed the necessary period of five years of residence. Periods of legal residence or work, in accordance with EU free movement provisions, both before and after the end of the transition period, count towards the five years.

Article 18 WA provides for residence documents to be issued and confers a power on the UK to require EU citizens, their respective family members and others who reside in the UK, to apply for a new residence status and a document evidencing such status, which may be in digital form (Article 18(1)), will be issued. That scheme is the EUSS, which we consider in the next section.16

Alongside the residence rights, the WA guaranteed the continuation of rights to equal treatment as set out in the CRD and the Workers’ Regulation 492/11. Rights to equal treatment also apply to NEFMs. This means EU citizens and their NEFMs are entitled to enjoy the same rights as UK nationals in respect of, for example, employment, housing, access to the National Health Service (NHS) – for both settled and pre-settled holders – and welfare benefits (though this is more complex in relation to holders of pre-settled status; see Chapter 6). Social security rights are preserved: Article 30 WA provides that EU regulations concerning social security coordination continue to apply to those who fall within the scope of the agreement. This means, for example, that periods of insurance, employment or residence completed under the legislation of one member state are taken into account, where necessary, when determining entitlement to a benefit under the legislation of another member state.

In addition, Part Two of the WA confers residence rights on family members, who may or may not be EU citizens.17 Those who are not EU citizens are described here as NEFMs. They are not EU nationals but are married to, or in a ‘durable’ relationship with, an EU citizen (for example, a Brazilian husband and a Polish wife) or are the family member of an EU national living in the UK (a child or parent, for example). They must also make an application under the EUSS to regularize their status in the UK.

There is a further group who can apply under the EUSS: ‘derivative rights holders’. These are ‘applicants who did not qualify for a right of residence under the CRD but may have had a right to reside in the UK derived from other EU law’.18 Broadly, these are non-EU, non-British nationals whose residence rights in the UK derive from another EU, European Economic Area (EEA) or British national. An example might be an Argentinian mother who is the primary carer of a British child resident in the UK; she would be a ‘Zambrano carer’, after the Court of Justice of the European Union (CJEU) case of the same name, which held that where children would otherwise be deprived of their rights as EU citizens if the carer was forced to leave (as correspondingly the child would be denied ‘genuine enjoyment’19 of their EU citizenship rights), then their carer must be granted a right of residence.20 The Court of Appeal held that applicants will be eligible to make an application as a Zambrano carer only where, by the end of the transition period (on 31 December 2020) and throughout the relevant period, they had a derivative right to reside but did not have any other leave to enter or remain in the UK (unless the only other leave they had was the EUSS under Appendix EU).21 This group must submit paper applications to the EUSS; they cannot access the digital platform.

Implementing Part Two of the WA on citizens’ rights is the responsibility of the UK (and individual member states with oversight by the European Commission). The UK government committed to – and has set up – an independent oversight body, the Independent Monitoring Authority for the Citizens’ Rights Agreements.22 UK courts can continue to hear cases and can make references to the CJEU for eight years after the implementation of the WA. Concerns about implementation can be raised in the Joint Committee, established to oversee the WA, or the specialized committee on citizens’ rights.

C. European Union Settlement Scheme

1. Legal provisions

The specific arrangements established in the UK as required by the WA are set out in ‘Appendix EU’ to the 1971 Act23 and called the European Union Settlement Scheme (EUSS). It is a ‘constitutive scheme’, meaning that the rights must be conferred by a grant of residence status (rather than a ‘declaratory scheme’, whereby the rights automatically arise once the conditions are fulfilled24). The two statuses of pre-settled and settled status were established within the UK scheme.

Settled status is the grant of indefinite leave to remain where an applicant, at the date of application, has resided legally in the UK for a continuous period of five years.25 Pre-settled status is the grant of limited leave to remain for five years, to those who could not satisfy the five-year continuous residence requirement for settled status.26 The EUSS does not require the person to have been exercising a Treaty right, such as being a worker or being a student or a person of independent means with sufficient resources and comprehensive sickness insurance as required by Article 7 CRD. Rather they simply had to be resident. This was a considerable concession by the UK government. However, the consequence of having pre-settled status (that is, time-limited leave to remain) is that at the end of the five years, the individual would have had no lawful status in the UK, unless that limited leave was extended or the individual successfully applied for settled status. Many pre-settled status holders are not aware of this requirement, which is particularly difficult to communicate because the deadline is set on an individual basis according to when the holder was granted pre-settled status. Further, unlike under the initial scheme, there is no safety net in the form of a late application or a further status to fall back on (such as pre-settled status for those who did not get settled status). Without leave to remain, the individual would not be permitted to work or access benefits, and they would have been an illegal overstayer if they did not leave the UK.

This requirement to ‘upgrade’ from pre-settled to settled status, in order to be permitted to remain in the UK, was challenged in R (Independent Monitoring Authority) v Secretary of State for the Home Department.27 The Divisional Court held that the requirement for pre-settled status holders to apply for settled status was precluded by Article 13(4) WA because the WA offered lifelong protection for those individuals who had been granted residence rights in the UK under the WA. Once the rights had been given, they could not lose them due to a failure to apply for further rights at the end of the five-year period. Article 18 WA meant that the rights conferred by the grant of new residence status under the WA (in this case pre-settled status) to those who did not have the requisite five-year residence period for permanent residence had to include a right to reside permanently once the five-year period had been satisfied. Consequently, the High Court declared that the EUSS was unlawful insofar as it abrogated the right of permanent residence for those granted limited leave to remain. The Home Office did not appeal the decision28 and has introduced steps to implement the ruling, including a two-year extension of the pre-settled status (Section D.2.4).

Finally, the rights provided by settled status are also not permanent: where an individual is absent from the host state for a period exceeding five consecutive years, then that status will be lost. For pre-settled status holders, it will be lost where the person is absent for a period of two consecutive years. However, for those with pre-settled status, while status is only lost after two years of absence from the UK, regular absences could affect their application to ‘upgrade’ to settled status: in order to apply for settled status, they must show that they have had continuous residence for the previous five years, which requires no absences of more than 6 months in any rolling 12 months (either in one stretch or as separate absences adding up to 6 months).

2. Applications to the scheme

There was considerable uncertainty for EU nationals in the UK between June 2016 (when the referendum was held) and March 2019 (when the EUSS was introduced) as to whether and how their residence rights would be protected.29 Some applied for the EEA (PR),30 the permanent residence application, which had been available to EU nationals prior to the introduction of the EUSS on an optional basis (there was a spike in applications after the referendum, as shown by the number of documents issued; Figure 3.1). This gave permanent residence once a person could provide evidence of five years’ continuous residence (as a ‘qualified person’31) already in the UK. However, the cost of the application (£65.00) was prohibitive for some. EEA(PR) status became defunct after 30 June 2021, and all those who had applied still needed to apply for the EUSS.

A column chart plots data versus years.
Figure 3.1:

Permanent residence documents issued to EU nationals, 2012–2018

Source: Home Office, ‘European Economic Area (EEA)’ Gov.uk, available at: www.gov.uk/government/statistics/immigration-statistics-year-ending-september-2019/list-of-tables#european-economic-area-eea

The EUSS is by far the largest ever administrative exercise in respect of immigration undertaken by the Home Office. To date it has had over seven million applications,32 despite initial estimates putting the EU national population in the UK at about 3.4 million (and later Census data returning about the same figure).33 The scheme marked a step change in the administration of immigration status by the Home Office. First, the evidence requirements were more flexible (though for many of those attending GYROS, they were still too challenging to meet). Second, criminal records checks were undertaken for all those applying. Third, the Home Office set up an EUSS Resolution Centre, which individual applicants and professional advisers could call directly to enquire about an application. Save for a brief closure during the first COVID-19 lockdown, the availability of case workers to discuss applications was seen as a positive step by the advisers on the part of the Home Office. Fourth, and perhaps most importantly, it is a digital scheme in terms of the application process, the status granted and its maintenance.34

The EUSS was first piloted in 2018, with 230,000 applications from EU+ employed in various settings, including universities and hospitals.35 At this point, the scheme still had the £65 application fee attached to it. This fee was later abolished,36 and refunds were granted automatically. The scheme was rolled out fully from March 2019 with an application deadline of 30 June 2021, albeit with the possibility of making a late application if reasonable grounds are shown.37 Of the six million plus applications received before the deadline, 52 per cent obtained settled status, 43 per cent obtained pre-settled status and 4 per cent obtained another status (including refused, withdrawn and void outcomes).38 Figure 3.2 shows that the majority of applicants pre deadline39 were in the 18–64 age category. However, as we note later, the applications from older people and from the young were fewer than expected, indicating a lower take-up rate among these groups.

A bar chart plots age versus data.
Figure 3.2:

Age range of applicants to the EUSS up to the June 2021 deadline

Figure 3.3 shows applications by nationality for the most numerous five countries (in terms of application numbers). The highest numbers of pre-deadline applications were from (in order) Polish, Romanian, Italian, Portuguese and Bulgarian nationals. Post deadline, there was a much higher share of late applications coming from Romanians (closely followed by Bulgarians) compared to the other nationalities.

A stacked column chart plots data versus countries.
Figure 3.3:

Most numerous nationalities of applicants to the EUSS pre and post deadline

Source: Home Office, ‘EU Settlement Scheme Statistics’ Gov.uk, available at: www.gov.uk/government/collections/eu-settlement-scheme-statistics

The scheme also includes non-EEA national EUSS application data. At the time of writing the total number of non-EEA applications to the scheme was 418,340 pre deadline, with over 44,000 (10 per cent), of these in June 2021 alone and 160,710 (28 per cent) post deadline (June 2023).40 The high number may be linked to the reality of the ongoing applications of (joining) family members of EU nationals (see Section D.2.3).

A certificate of application (CoA) is provided to each applicant once their application is submitted. This can be used to provide evidence of eligibility to work and rent accommodation until a decision on the application has been made. A CoA is also given to those who have pending late applications.41 Although the decision process was very quick for many people, the average length now is six to eight weeks,42 and in some complicated cases, it can take months.43 The CoA, which can be viewed online, allows the applicant to continue to live and work in the UK pending an outcome. However, as discussed later, it can give a false sense of security for those who make an ineligible application (Section D.2.1). Refusals of applications to the scheme have been relatively low to date – 8 per cent of applications by EU nationals and 10 per cent of applications by non-EEA nationals. However, although these percentages are relatively small, they still equate to about 567,700 applications. The number of refusals has been increasing recently, particularly in the context of late ineligible applications (see Section D.2.1). Refusals of ‘derivative rights’ holders are also higher (see Section D.2.3).

When an application is refused, the individual may seek an administrative review of the decision (within 28 days of receiving the decision, at a cost of £80) or appeal the refusal to the First Tier Tribunal (within 14 days of the decision date or 28 days if the individual is not in the UK). They could also submit a new application, previously a route often seen as easier and quicker, particularly while late applications were permissible (see Lara’s case, Section D.1.3). While ‘reasonable grounds’ were necessary to submit a late application, the threshold for acceptance was still high. However, this more generous test for ‘reasonable grounds’ changed on 9 August 2023 when stricter rules were introduced. From 9 August 2023, reasonable grounds for making a late application have become a validity requirement instead of an eligibility requirement. If the Home Office finds that the grounds for a late application are not reasonable, they will reject rather than refuse the application. This rejection means that the applicant will not have the right to an Administrative Review or an appeal. This is considered further in Section D.2.1. For those who are unsuccessful in any review or appeal and do not have any other immigration status to permit them to remain in the UK, they will then have no entitlement to reside in the UK: the hostile environment makes it particularly difficult to continue living and working in the UK. While there does not, yet, appear to be a widespread system of deportations, if an individual has contact with a body that has a duty to report (such as the local council, health services, Department for Work and Pensions), then they may receive a letter saying they need to make an application to the EUSS or they may be offered help to voluntarily return to their home state.

3. Feeling unwelcome

So far, we have concentrated on the legal rules underpinning the EUSS and the numbers involved, but what about the impact of the scheme on EU+ nationals? We were struck by how many of our interviewees said how unsettled and unwelcome the EUSS process had made them feel. Some EU nationals left the UK because of Brexit,44 and in earlier work with EU nationals, we noted a difference between EU14 nationals on one hand and EU8 and EU2 nationals on the other.45 For many EU14 nationals, Brexit was the first time they had felt ‘othered’46 in the UK. Previously, they had identified as equal EU citizens exercising their right to move to the UK or, for those who had been here for many years, they had felt they belonged. A German national commented: ‘Before the referendum, I felt British. It’s since been made clear to me via media and individuals that I am not part of this country.’47

By contrast, for many of the EU8 and EU2 nationals we spoke to (and the Portuguese nationals in low-paid work in Great Yarmouth), this feeling of not being welcome was simply a continuation of rhetoric they experienced before, during and after the referendum.48 Everyone in our focus groups had experienced some form of ‘go home’ rhetoric in their time in Great Yarmouth.49 As Portes notes in relation to migration trends from the EU to the UK between the referendum and 2020: ‘It does appear that the psychological impact of Brexit on past and prospective migrants from elsewhere in the EU was considerable.’50 This is, in part, to do with the ‘bureaucratic bordering’ that the EUSS entails and the onus to prove eligibility and legitimacy shouldered by many EU migrants in the everyday:

‘It very much feels … not eligible until you, as a client, provide evidence and explain the complex law so we can prove your eligibility yourself. So, my feeling is you need to be more or at the same level of knowledge as the decision makers to be able to explain how you are eligible, and why those immigration/EU regulations 2016 apply in your case.’51

For many EU nationals, the introduction of the need to document their right to live in the UK and access employment, housing, welfare and health services meant that, for the first time, they encountered the ‘hostile environment’. This term was first used by then Home Secretary Theresa May to describe a raft of new migration policies seeking ‘to create, here in Britain, a really hostile environment for illegal immigrants’.52 Although announced in 2012, the ‘hostile environment’ policy dates back much further, with governments of all political parties taking cumulative steps to make it more difficult for people (including those in former British colonies) to move to the UK or hold British citizenship, including in some instances pressuring colonial governments to limit those it gave British passports to.53

The hostile environment of today, now rebranded the ‘compliant environment’, is expressed in high fees for immigration visa applications, limited appeal opportunities and inaccessible Home Office decision makers (unlike the context of the EUSS where, as we have noted, individuals and agencies could contact the Resolution Centre). However, the hostile environment affects the everyday, and this is where it meets the EUSS – in the need to prove immigration status to employers, landlords, health officials and banks. Consequently, the external borders of the state bleed into the interactions of everyday life and place a burden on individuals, such as employers and landlords, to deal with immigration issues. Employers54 might face fines of £45,000 per worker for not undertaking the correct right to work checks, and landlords can be fined £5,000–£10,000 or receive a criminal conviction, or both for failing to carry out checks.55 Although there have been concerns about the discriminatory impact of the EUSS, the Court of Appeal rejected a claim by The Joint Council for Welfare of Immigrants56 that the scheme breached Article 8 (right to a family life) and Article 14 (non-discrimination) of the European Convention on Human Rights.57 Having assumed without deciding the point that Article 8 was engaged, the Court held that the objective of the EUSS was sufficiently important to justify the limitation on individuals’ rights under articles 8 and 14. Moreover, the scheme could be operated by landlords in a proportionate way, which was a complete answer to the claim that rights under articles 8 and 14 were breached.

Another aspect of feeling unwelcome is the question of no recourse to public funds (NRPF).58 In order to claim certain welfare benefits in the UK, such as UC (or other public resources), an applicant must pass a two stage test, first proving that they have a ‘right to reside’ and that they are ‘habitually resident’ (Chapter 6). As we move through the chapters of the book, we highlight instances in the GYROS data whereby EU nationals were incorrectly labelled ‘NRPF’ and GYROS needed to work to provide evidence of these individuals’ right to make a claim. The complexity of the law does not help, and it is not just the clients that struggle. As one council housing worker commented, they had no training around the EUSS to help them understand which status gives rise to which rights.59 This is particularly difficult in relation to the distinction between pre-settled and settled status and the ability to access public funds, such as housing support or welfare benefits (Chapter 6), and the council sometimes comes to GYROS for advice. The hostile environment can make it difficult for clients to gather the information needed to prove they are not in fact NRPF: ‘there is that level of hostile environment in the air’.60 And this barrier can manifest as difficulties in gathering bank statements or letters from GPs.

Having outlined the establishment of the EUSS and the impact it has had on EU+ nationals, we turn now to consider how the scheme has been operating on the ground – specifically, what issues GYROS’ clients have faced (sections D.1 and D.2) and how GYROS has responded to those difficulties and helped clients (Section D.3).

D. Issues faced by GYROS’ clients when applying under the European Union Settlement Scheme

Our longitudinal dataset from GYROS (2015–2020) and our fieldwork in Great Yarmouth (2019–2022) span the pre-Brexit period (2015), the referendum (2016), the introduction of the EUSS (2019), the deadline to apply for the scheme (June 2021) and the period for late and repeat applications (June 2021 onwards). GYROS recorded 1,636 contacts relating to the EUSS from 1 April 2019 to 30 June 2021 (before the deadline) and significantly more, 6,414, from 1 July 2021 to 31 July 2023 (after the deadline).61

A significant number of practical issues have arisen from the EUSS, which we address in subsequent chapters, including insecure work (Chapter 4) and informal renting (Chapter 5), making it difficult to provide formal evidence of, respectively, the work and rental history necessary to prove residence for the purpose of the EUSS application. In this section, we consider some of the issues that can be seen in the GYROS data in the early stages of the operation of the scheme (Section 1) and ongoing issues (Section 2). We also identify how GYROS’ clients understood, and understand, issues arising with the scheme and GYROS’ approach to tackling these issues.

1. Early days

‘Early’ issues seen in the GYROS dataset included, perhaps unsurprisingly, lack of awareness of the Home Office’s requirements and then a fear about how the Home Office might use data provided for the purpose of the scheme. There was also confusion over whether Brexit was actually going to happen. Bureaucratic bordering, a theme that we identify throughout this book, came to the fore in relation to issues over proof of residence and employment in respect of EUSS applications, with challenges for people to prove residence and deal with a digital system. We look at these issues in turn.

1.1 Lack of awareness and confusion over Brexit dates

Lack of awareness of the requirement to apply for the EUSS was acute in more marginalized and isolated groups, including those who could not speak English (much of the communication about the scheme was in English), people experiencing street homelessness, older people and those living in rural areas (particularly isolated rural farm workers with little or no Wi-Fi access62). The GYROS dataset indicated a particular lack of awareness of the scheme among older and younger people (this is reflected in the number of applications nationally, as shown in Figure 3.2). People who had lived in the UK for decades were unaware that they too had to make an application, as were those who had already received permanent residence (see Figure 3.1). Take, for example, the case of Sofia63 (Lithuanian, fifties, lived in the UK for 18 years), who sought help from GYROS to apply for the EUSS almost a year after the scheme had been open for applications. As indicated in the GYROS case note, she heard about it by chance:

08/10/2019 Client has PR [permanent residence] but has not done EUSS yet. She did not even know about it until someone in ESOL [English for Speakers of Other Languages] class talked about it. I did her app[lication] today and explained that all EU national[s] and their families living in the UK should do it. The rest of her family are British. Client does not know how to use email, so the app was done with my email.64

Four months later, Sofia received her settled status.

07/02/2020 Client’s EUSS award letter came. I passed the information to client along with printed status outcome letter and settled status page that HO [Home Office] holds for her (the page with her photo in). I stressed again the importance of updating personal info as it changes. We changed her phone number today as she has a new number now.65

GYROS also saw examples of older people who had come to the UK to provide childcare for their grandchildren not knowing that they needed to apply. There were also cases, especially among the Romanian community, of parents not being aware that they needed to make applications for their children and assuming children’s applications would be linked to those of the parents.66 Some of this confusion was created by the government itself. This was explained by a council worker:

‘the scheme has been advertised poorly. The families were not aware that every child has to apply. The other issue was … that’s related, that the Home Office announced that children will get the status of the parents. Which cannot be more misleading, because each child has to make their own application.’67

The timings of Brexit also caused some confusion and further uncertainty. When the UK did not leave the EU in March 2019, but rather sought an extension to its membership, initially to 31 October 201968 and subsequently to 31 December 2020, many EU nationals delayed completing their EUSS applications. One organization in Wisbech (Cambridgeshire) ‘reported that their clients were waiting for Brexit to happen as there was “no point” in doing anything before then’.69

1.2 Digital-only application and data concerns

As we have noted, the EUSS is a digital immigration scheme. An application is made online and the identity check for the application can be done via the ‘EU Exit: ID document check’ app, available on smartphones; the check can also be done at document scanning centres at various locations throughout the UK or by posting ID documents for verification. Prospective applicants can also request a paper application form in lieu of the digital application from the EUSS Resolution Centre, but paper applications are only permissible in limited circumstances.70 Applicants receive digital-only proof of status, accessed with unique log-in details via the Gov.uk portal. Groups like the3million71 campaigned, ultimately unsuccessfully, for physical proof of status. Further, as we saw in the adviser’s reminder to Sofia, for those with pre-settled or settled status, there is an obligation to keep personal details up to date, and this is done online too.

Inevitably, those who lack both the basic hardware, such as a smartphone, and the necessary digital skills have struggled to navigate the online EUSS application process and provide subsequent updates. The Office for National Statistics has estimated that 9 per cent of adults in the UK are non-internet users.72 Digital literacy has been found to be especially low among GYROS clients, with more than 60 per cent rating their IT skills lower than 5 out of 10 (where 1 is non-existent and 10 is excellent).73 So to apply for or maintain their status, these clients often need digital support, sometimes at the most basic level.

Some clients were unable to understand the outcome of their application, or were not aware there was an outcome. In one example: ‘02/03/2020 Client came over to check if she was awarded Settled Status. Client had deleted emails from them[.] I have checked online, and client was awarded Settled Status.’74 This client had made her application in November 2019, at which point she had already been living in the UK for 12 years. However, she described her English language skills as “none”. In another example:

29/05/2019 I called client to ask about her EUSS settlement application and dates. Client said she didn’t receive any email and that she received only the certificate of application …. I went to www.gov.uk ‘view and prove your status rights’ and checked for info regarding outcome. Client and her children all have settled status and unlimited leave to remain.75

This client had already been through the process of making an application for EEA(PR), which, as mentioned, became defunct two years later, requiring her to prove, once again, five years of residence for her and her children.

Another issue for many clients is that they did not have email addresses – we saw this with Sofia and see it again here: ‘21/10/2019 A client came to apply for settled status, she couldn’t use her email and phone, so we gave her our details.’76

The digital-first approach also applies to providing proof of status: individuals generate a shareable digital code which third parties (for example, employers or landlords) use to verify the person’s immigration status. This caused considerable anxiety among GYROS clients:

27/05/2020 Emailed client asking about the outcome of her application. She replied saying that she received it on 09/12/2019 but is having trouble getting the proof – her employer wants to see it. I offered our help with it, and she was really happy to hear that we could help her remotely. … We did appt [appointment] via Skype. I accessed client’s EUSS record, saved and emailed it to her, so she can show that as proof if an employer asks. She asked about the code for the employer. I explained that she can generate and share it with her employer, when she has one. Client was worried that she won’t be able to herself, even after my explanation, so I reassured her that she can always call us back and we will help her with it.77

The obligation to engage with the digital scheme applies equally to landlords and employers. The Public Law Project has outlined the nine-step process a third party has to undertake in order to check the status of an EU+ citizen.78 It is not yet known what impact this process and additional responsibilities regarding immigration checks will have on employers, landlords and others, although early research suggests it does disincentivize renting to EU nationals.79 And for some, it is a serious barrier. Take Frank, the landlord of the House. He did not have a smartphone and he was not digitally confident; moreover, the House did not have Wi-Fi.

Frank was not alone. Jacob, a Dutch national who had lived in the UK for nearly 40 years, was a landlord of various HMOs. He accessed GYROS services in June 2021 for help with his own EUSS application. He was not an internet user and did not own a PC or laptop. He came to GYROS with his Nokia 3210,80 his only phone, which he rarely switched on. He said he struggled with the digital march of most applications and mentioned that his utility providers had not believed that he could not take and send a picture of his meter reading because his phone did not have this facility. So he was unable to apply for or manage his own status without help from GYROS, let alone navigate the immigration checks he had to undertake as a landlord, via a share code provided by his tenants.

Applicants, who generally had had no previous interaction with the Home Office, also had concerns about submitting their data to a digital system run by the Home Office. Their fear in relation to data protection was exacerbated by an exemption clause in the Data Protection Act 2018 preventing EU citizens living in Britain from finding out what data the Home Office held on them.81 The Court of Appeal made a declaration that the exemption was incompatible with the General Data Protection Regulation (Regulation 2016/679),82 but suspended the declaration until 31 January 2022 to give the UK government reasonable time to make legislative amendments to remedy the incompatibility.83 However, the deadline for EUSS was 30 June 2021 and therefore EU nationals had to go ahead and apply, irrespective of their concerns. In an early survey we conducted on the EUSS, one German respondent said:

EUSS in practical terms was reasonably straight forward. I found it upsetting that I had to do it at all. I had to borrow a phone. I am worried about the biometric data where it is going and what they will do with it. Being on a Home Office database and doing God knows what with it.84

1.3 Establishing proof of residence

Some of GYROS’ clients struggled to meet the evidence requirements for EUSS, despite the fact that these were very flexible. As one external worker who attended the GYROS complex case discussion meetings told us:

‘I think generally people from abroad, especially people from so-called Eastern Europe, they are very used to bureaucracy, providing information, confirmation of the identity, such as passport, national ID card, bank statements. They understand that you need to provide a lot of evidence to be able to access certain provisions. So that in itself is not as much of a problem. The problem is how people can navigate the system in the UK to obtain the correct evidence. They come across some ridiculous hurdles for no apparent reason. It is almost like a systemic discrimination against them because they are from abroad. I mean, again, I came across occasions where clients were telling me: “No, I can’t possibly obtain my bank statements, or my bank will charge me for that. They won’t give them to me.” I go to the bank with the client as their adviser and suddenly the conversation is very different. All the statements are printed there and no questions about the money. It’s the same when asking for confirmation from [the] GP that families are registered at – I heard stories where they won’t issue that letter, or they will want to charge for issuing that letter. So yes, there is … there is that level of hostile environment in the air.’85

The lack of a paper trail to prove residence is a theme that frequently arises in our data, particularly for those working without employment contracts and living (sometimes for years) without any tenancy agreements. For some, the evidential burden was a struggle because a cost was involved:

12/05/2020 Client said that she wanted to apply for EUPS [EU Pre Settled] for her 2 children, but children don’t have birth certificates. I explained that we could ask for them online, but that client needs to be able to pay for them. Cost £11 + £3 for post costs. Client said she doesn’t have money now, but that she will get paid on Friday by Midnight. We will do it next week.86

For others, it is that no paper trail exists. Take the case of Lara87 (Box 3.1), who was not listed on any utility bills, because when she first moved to the UK, she was living in ‘hotel’ accommodation. She also had a OnePay88 bank account, which does not require proof of residence. OnePay positions itself as ‘solv[ing] the problem of paying temporary workers without UK bank accounts’, and many employment agencies and employers are registered with OnePay because it offers an easy and quick way to pay staff.

Box 3.1: Lara’s story

Lara is a Portuguese woman with four children who moved to the UK in 2020 to find work. She worked part-time, on a zero-hours contract, in one of the local chicken factories; she found the job via a recruitment agency based in Great Yarmouth. In February 2022, Lara had to stop working due to illness (related to blood pressure and diabetes). Without any income, the family’s problems began to accumulate. Lara first approached GYROS for help with applying for welfare benefits in March 2022. She had already tried to submit an application for EUPS. The notes said: ‘She said that she had tried before but was not successful, her ID was expired, and she also had tried to get help but as she didn’t have enough money, she was not able to apply before the deadline.’

This suggests Lara had approached advice sharks operating in the Town (see Section 2.2) to help her make an application for EUPS, but as she was unable to pay, she was refused the service. When Lara approached GYROS, she had to submit a new application for EUPS. It also became clear she had been working without a National Insurance number. In 2020, during the COVID-19 pandemic, the government stopped issuing National Insurance numbers to EU nationals.89 This was due to capacity issues, as staff had to be redeployed to process benefit claims. Processing of National Insurance number applications reopened in December 2020.90 These numbers allow individuals to work and pay National Insurance contributions. They also act as a personal identification/reference number when communicating with the Department for Work and Pensions and His Majesty’s Revenue & Customs (HMRC).

GYROS made a new EUPS application for Lara in April 2022. In May, she sent GYROS her (expired) ID to accompany her application. In October 2022, she was asked for more evidence to support her case for residence since 2020. The GYROS adviser spoke to the Resolution Centre on 19 October 2022:

19.10.2022. I explained that we have uploaded evidence regarding her residence, payslips and that EU settlement keeps asking for evidence. [Resolution Centre worker] said that the caseworker … was treating her case like a [settled status] application when it clearly showed in the application she was applying for Pre-settled status. The only reason he could see for this request of evidence … might be because payslips don’t have NINo [National Insurance number]. I explained that during lockdown they were not being issued, and she only probably got the Nino recently. Which was later confirmed by client. Regarding bank accounts, I explained that when people arrive in the UK and start working, they are not able to get bank accounts straight away, only online banking and One Pay card for wages.

[Resolution Centre worker] understood and advised to get other evidence, such as utility bills. I believe client was living in hotels and does not have utility bills in her name.

[Resolution Centre worker] will put a note down for her caseworker and hopefully we will get an update soon.

The GYROS adviser called the Resolution Centre again the next day, after the client had received another request for more evidence. Lara was advised ‘to get Company registration number on employer’s letter’. GYROS also asked her to “send me P45 and NIN[o] letter”, so this can be added to evidence supporting her employment in 2020. On 25 November 2022, Lara’s application was refused: ‘Client emailed me, email received from Home Office with refusal letter dated 16.11.2022. I called client and we decided to ask for an administrative review as client (now) has all evidence apart from the payslips with the National Insurance number.’

As we saw in Section C.2, applicants have 28 days to lodge an administrative review (AR), and this costs £80.00. Lara’s case notes record: ‘12.12.22 called client several times last week without success. I have called today, and client said she didn’t come to drop-in because she didn’t have money to pay for AR. Client said she would have money this Friday.’ Ultimately, the AR is not undertaken; a new application is seen as the quicker (and cheaper) route. This would entitle her to a CoA, giving her the right to work straightaway: ‘16.12.22 Client came for appointment to submit AR but after conversation with client we decided to submit a new application as client needs to be able to work as soon as possible. New application submitted today 16.12.2022.’

At the time of writing (March 2023), almost a year after GYROS first started helping her with her second, and then her third, application, the client has still not received an update on her case.

Lara’s case (Box 3.1) shows some of the issues for vulnerable individuals applying for EUPS. Without EUPS, it became difficult for her to access other support. GYROS worked intensively with her over the course of the year (see Table 3.1).

Table 3.1:
Lara’s interactions with GYROS (a snapshot)
Date case was opened Project Subcategory Complete? Date case was closed Time spent on case by staff and volunteers
8 March 2022 IAG Benefits Yes 25 October 2022 3 hours, 19 minutes
11 March 2022 IAG Safeguarding Yes 6 July 2022 45 minutes
11 March 2022 IAG Safeguarding Yes 11 July 2022 20 minutes
11 March 2022 IAG EUSS/EUPS Yes 21 June 2022 57 minutes
11 March 2022 IAG Debt and money advice Yes 21 June 2022 2 hours, 20 minutes
23 March 2022 IAG Other Yes 23 March 2022 15 minutes
29 March 2022 IAG Safeguarding Yes 29 March 2022 10 minutes
11 April 2022 IAG Safeguarding Yes 26 July 2022 15 minutes
25 April 2022 IAG Employment Yes 19 May 2022 27 minutes
25 April 2022 IAG Safeguarding Yes 26 July 2022 18 minutes
26 April 2022 Immigration EUSS/EUPS No Not closed 6 hours, 57 minutes
10 May 2022 Immigration EUSS/EUPS Yes 1 September 2022 15 minutes
30 May 2022 IAG Education Yes 25 October 2022 1 hour, 27 minutes
21 June 2022 IAG Housing Yes 25 October 2022 1 hour
27 June 2022 IAG Safeguarding Yes 26 July 2022 5 minutes
27 June 2022 IAG Safeguarding Yes 26 July 2022 20 minutes
23 August 2022 IAG Education Yes 25 October 2022 34 minutes
23 August /2022 IAG Education Yes 8 November 2022 27 minutes
23 August 2022 IAG Education Yes 8 November 2022 11 minutes
15 December 2022 Immigration EUSS/EUPS No Not closed 1 hour, 24 minutes

Note: IAG = information, advice and guidance

Lara also sought help to apply for welfare benefits (Universal Credit and child benefit, both dependent on her claim of pre-settled status), food parcels, help via the Norfolk Assistance Scheme, a Council Tax reduction and debt and money advice (because of an inability to work or to claim benefits) as well as education support for her children in school. GYROS also helped her write to the employment agency as she was owed two days’ pay. Lara’s case is just one example of the issues we return to throughout this book – bureaucratic bordering (the need for paperwork) and problem clustering (not having pre-settled status meant she could not receive benefits), often due to issues beyond the individual’s control (such as the suspension of the issuing of National Insurance numbers due to the COVID-19 pandemic).

Lockdown also saw a period of closure of the EUSS Resolution Centre and all local scanning centres, plus the suspension of the ability to send documents by post.91 The processing of EUSS applications also took longer:

16-06-20 Called the client regarding their EUSS application. They have not heard anything. I called the resolution centre on their behalf and was advised that everything was ok, the application has passed the criminal conviction stage, which had been the holdup previously, and was just taking longer due to Covid19. I told the client, they were overjoyed and said it was a big weight off to know that things were ok with the application.92

For those who did not have valid ID documents to make an application for EUSS, the closure of embassies and consulates during this time created a backlog for appointments for those needing, for example, new passports, which in turn delayed applications to the EUSS. In addition, specialist support agencies, such as GYROS, moved to virtual support, which limited their capacity to help the very people who needed them most due to problems of digital access.

28/04/2020 Client messaged me asking me to call her. I called her this morning and client was worried as she hasn’t got EUSS. Client said she has been living in the UK for 7 years and wanted to apply now. I asked her if client has a smartphone and client said that no she hasn’t. She has a valid passport. Client is willing to wait until after the lockdown and I said I could help her when she is ready.93

2. Current issues

At the time of writing, the EUSS application system had been live for over four years and the status itself has been in use for more than two years. While some of the early issues persist, others have also come to light.

2.1 Late applications

While the deadline to apply was 30 June 2021, it was always known that some people would miss this. Provision was made for individuals to apply late if they have ‘reasonable grounds’. The guidance requires caseworkers to take a flexible and pragmatic approach to assessing claims of reasonable grounds. Examples given by the guidance include children whose carers have not applied for them, people with reduced mental and physical capacity, people with EEA residence documents, victims of modern slavery and victims of abuse. The guidance makes it clear that this list is not exhaustive and there is a wide, catch-all category of ‘other compelling practical or compassionate reasons’.94 As of June 2023, there were almost 505,330 late applications to the scheme.95 However, the Statement of Changes in Immigration Rules HC 149696 added a ‘required date’ to Appendix EU (EU 9(e)) for validity assessments of applications made on or after 09 August 2023. This means that from 09 August 2023, reasonable grounds for making a late application have become a validity requirement instead of an eligibility requirement. In fact, this two-step process was outlined in the Withdrawal Agreement,97 bringing the Home Office approach more in line with the process outlined in the WA. If the Home Office finds that the grounds for a late application are not reasonable, they will reject rather than refuse the application. As we have seen, this rejection means that the applicant will not have the right to an Administrative Review or an appeal.

One reason given for this change98 was the fact that within this group of late applicants were those ineligible to apply for the EUSS because they arrived in the UK after 31 December 2020. Previously, however, submitting an application and receiving a CoA meant that they had the right to work until they received a rejection of their application. For example, one family in Great Yarmouth arrived in June 2021 and then applied for EUSS and received a CoA. With this, the mother started working and her children were enrolled in the local school, but her application will be refused when it is processed because she arrived after the deadline of 31 December 2020. Meanwhile, the CoA has given her a false sense of security of a future life in the UK.99 The most recent changes mean that an applicant now does not receive a CoA until after they have passed the first validity check stage of their application. GYROS does not help those who arrived after the deadline to make late applications to the scheme, but it does provide them with other practical support, such as food vouchers.

There are other consequences for those who arrived after 31 December 2020. For example, when Paula arrived in the UK after the deadline, she was seven months pregnant; she submitted a late EUSS application with the help of an advice shark, who advised that she would be successful. She gave birth in the UK, so when her application is ultimately refused, she will face medical bills of up to £10,000, in accordance with NHS overseas visitor charges (see Chapter 7). When she interacts with a body such as the local council, she will be asked to prove her eligibility for support, but will not be entitled.100 She could also face removal from the UK.

The continued stream of late EUSS applications has had a knock-on effect on those who applied by the June 2021 deadline. The spike in applications just before the deadline and the continued pace of applications since mean that there is now a significant processing delay, often with serious consequences for individuals. Take, for example, Ines, a Lithuanian woman who applied to EUSS on 28 June 2021 (pre deadline) but did not receive her CoA for a month, during which time the agency did not allow her to work. As a result, she fell behind on her rent, could not pay her utility bills and had to rely on food parcels. She also struggled to pay for medication. She had been living in the UK for 16 years.101 Now the Home Office no longer issues a CoA until after it has decided on the validity criteria, genuine applicants – like Ines’ – may face further significant delays in their ability to evidence their rights.

GYROS has been busier with EUSS applications and enquiries after the 30 June 2021 deadline than it was prior to that. This is because it is not only dealing with late applications but also chasing up submitted applications, generating share codes, undertaking joining family member applications, ‘upgrading’ applications and updating details online for those clients who cannot do so themselves. Also, in cases like Paula’s, it helps to sort out issues generated by advice sharks.

2.2 Advice sharks

‘Advice sharks’ – so called because of the similarity in their mode of operation to ‘loan sharks’ – have also profited from those needing help with their EUSS applications, especially during the lockdowns, when regulated advice services, such as GYROS, went online and thus became inaccessible to those without internet access. They often charge significant fees (£30–£500 per visit) for their ‘services’, and they use intimidation tactics to elicit payment, even when the advice they have provided is wrong. Take Pieter, who paid £150 to an advice shark for help with his (free) EUSS application and was charged £40–£80 each time he returned to the advice shark for an update on his application – he paid £700 in total. He eventually discovered that the advice shark had lost his documents, including his ID card. The advice shark told Pieter that she would call the police if he contacted her again and threatened that she could have him deported as he no longer had a legal right to be in the UK. Pieter was left without any form of ID and had to apply late to the scheme via a paper application. He was unable to work or claim Universal Credit, because he had no ID and he had not submitted an EUSS application.102

2.3 Non-EU family members of EU nationals

Non-EEA nationals represent 6 per cent (607,960 applications) of the total EUSS applications up to June 2023.103 The most numerous non-EEA nationalities applying to the scheme come from India (95,810), Pakistan (83,070), Brazil (66,370), Ghana (39,890) and Albania (39,800). Only 28 per cent of NEFMs received settled status when they applied – much lower than the percentage for EU nationals – a greater proportion having received pre-settled outcomes (54 per cent). Refusals for non-EEA nationals were slightly higher among this group than EU nationals, at 10 per cent compared to 8 per cent. A further 7 per cent of applications were withdrawn, void or invalid. The higher level of pre-settled status could be because of the increased evidential requirements on this group to prove their relationship with the EU family member. The easiest mechanism for making a successful application was for the NEFM to link their application to an application for pre-settled or settled status by their EU family member.

Derivative rights holders and Zambrano carers also feature in our data. A freedom of information request to the Home Office about application numbers and outcomes for this group showed that:

  • The largest groups of applicants were from Nigeria, Pakistan and Ghana.104

  • Refusal rates for derivative rights holders (those whose rights are derived from another) were much higher than for the rest of the scheme, at for example 22 per cent for Chen carers105 and 21 per cent for Ibrahim/Teixeira carers,106 increasing to 81 per cent for Zambrano carers.

  • For the paper application route, 59 per cent of applicants were women.

GYROS needed to navigate cases where other immigration routes were sought after an EUSS refusal (for derivative rights holders):

‘My client AA* had desperately tried to get under Zambrano EUSS and was refused twice. I have now just applied for FLR FP,107 and I am sure she will get it, but it is such a long wait, and she will only be granted 2.5 years of leave, so it is very different.’108

2.4 Upgrading from pre-settled to settled status

As we have outlined, when the EUSS was first established, those with pre-settled status had to make another application to ‘upgrade’ their status to settled status after the initial five-year period. Among the effects of a loss of status are the inability to rent accommodation, accept job offers, open a bank account and access certain forms of healthcare for free. The EU+ national would also come face to face with the full force of the UK’s hostile environment towards ‘illegal’ migrants. Concerns have long been raised that those more vulnerable and marginalized will once again struggle to make this second fresh application.109 Others still (an unknowable number) will have received pre-settled status when they were in fact entitled to settled status, because of difficulty providing evidence to prove their residence in the UK – this is particularly the case for those who were street homeless and did not have access to their paperwork for the EUSS.

Following the High Court’s IMA decision, the Home Office has announced that it would implement a two-year automatic extension for pre-settled status holders from September 2023.110 However, the High Court held that once the relevant conditions are met, the right of permanent residence under the WA is acquired automatically. How does the two-year extension sit with the automatic accrual of permanent residence rights? For example, if someone fails to upgrade after an initial two-year extension, will a further two years be granted? The Home Office has not clarified this. From 2024, the Home Office intends to automatically convert the status of some individuals from pre-settled to settled status via automated digital checks (for example, using HMRC records). But for many low-paid migrant workers on precarious zero-hours contracts or working in informal employment contexts, like Darius in Box 1.1, or those not working, like Lara in Box 3.1, this digital footprint may not be generated. Further, there have been more than 1.2 million applications for children (aged under 18) to the scheme,111 many of whom will not be generating the required footprint for an automatic upgrade. All of this is important because there are significant differences between the rights and entitlements of those with pre-settled and settled status. For example, as we shall see in Chapter 5, the Fratila judgment112 confirmed that someone with pre-settled status but no other ‘qualifying right to reside’113 (such as being in work or self-employed) may not be able to claim Universal Credit.

3. GYROS’ approach

As we have seen, having pre-settled or settled status is now the gateway to the rights discussed in the subsequent chapters: to work, rent accommodation, claim benefits and access healthcare. ‘Have you got EUSS?’ is the first question GYROS advisers ask clients, (although sometimes it has to be explained using other terms, such as: ‘Do you have residency?’114). The previous sections have shown some of the issues facing GYROS’ clients in navigating the EUSS application process. Through the discussion, we have also shown, almost incidentally, how GYROS’ advisers interact with clients – one of the recurrent issues in this book. GYROS’ approach can be characterized by pragmatism (sorting out an email address, upgrading a status online, ringing the Resolution Centre). It is informed by an understanding of the law, not least because, as we saw in Chapter 1, GYROS advisers are qualified to OISC Level 1 and Level 2 to give immigration advice.

Six GYROS advisers are OISC Level 1 (Limited to EUSS), a new advice route to increase the number of advisers within advice agencies who could help with the more straightforward EUSS applications. Changes to the scheme for late applications as outlined above, mean that most late applications are now more complex and will likely fall to level 2 advisers. GYROS have two Level 2 advisers. The OISC guidance says (regarding Level 1 [Limited to EUSS]):

Such advisers can make applications for EU Citizens and their family members under the EU Settlement Scheme, where such applications rely on the straightforward presentation of facts to meet the criteria set out by the Home Office under the scheme. Such applications will not be discretionary or concessionary in nature and applicants will not have an immigration history that is likely to adversely affect the application in question. Where a case becomes complicated, or an application is refused an adviser must refer the client as soon as possible to an adviser authorised to practise at OISC Level 2 or 3.115

E. Conclusion

This chapter has shown how the EUSS has operated in practice. The Home Office put considerable resources into setting up the scheme and was generous when it came to application requirements (in the sense that it was sufficient to show residence and not that the individual was exercising a Treaty right). The digital nature of the scheme also made it user-friendly and easily accessible for many, especially the Eurostars of other research, namely the high skilled, English speaking and digitally literate, working in universities and hospitals, who could demonstrate a clear footprint with the state (for example, through regular employment and payment of taxes). This has not been the case for the many EU migrant workers in Great Yarmouth who lack the language and IT skills to apply and manage their status and often lack any regular footprint of engagement with the state and do not have paperwork to prove their residence. They have, therefore, needed, and continue to need, help from advisers. Some find their way to OISC-qualified advisers; others fall into the hands of advice sharks.

This chapter has also shown how every aspect of GYROS’ work is affected by the EUSS. GYROS has a standalone workstream that helps clients and their families apply for, maintain and use their status. But it is also a gateway to employment, housing and welfare rights. It is an aspect of GYROS’ work which makes it unique as an advice charity: the general advice they offer must always be immigration led or grounded in immigration law and knowledge. It is not simply a matter of advising on, for example, eligibility for Universal Credit, but rather eligibility for Universal Credit as an EU national and the separate rules which apply. It is likely that GYROS’ clients will need help for at least the next five years until they qualify for settled status, and beyond for help with joining family members, new(born) family members and those less digitally literate and in need of ongoing help to use their status, update it and provide it to relevant third parties as required.

The common themes of precarity and problem clustering that we will see in each chapter often find their root in immigration status. The additional hurdles EU migrants face in providing evidence of their immigration status, proving ‘continuous residence’ as a ‘qualified person’ and dealing with the mistakes of third parties through a lack of understanding of immigration regulations mean that the fingerprints of immigration status are found in every problem cluster.

Having set out the EUSS as a fundamental requirement to show the right to work in the UK (since July 2021), in the next chapter, we explore the work experiences of EU migrant workers in and around Great Yarmouth. We start in the early 2000s, when Edita and others from the House first moved to Great Yarmouth, exercising their free movement rights, and started working in a chicken factory in the local area, and come up to today to see if and how their situations have changed.

1

While EU nationals were not subject to any limits on their free movement, member states could place controls on access to their public services.

2

F. De Witte, ‘Freedom of movement is not simply an economic good but a bulwark against oppression’ LSE (3 February 2016), available at: https://blogs.lse.ac.uk/brexit/2016/02/03/freedom-of-movement-is-not-simply-an-economic-good-but-a-bulwark-against-oppression/, accessed 10 March 2023.

3

Section 1 Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. J. Dennison and A. Geddes, ‘Brexit and the perils of “Europeanised” migration’ (2018) 25 Journal of European Public Policy 1137, 1141.

4

See Home Office, ‘EU Settlement Scheme’ Gov.uk, available at: https://www.gov.uk/government/collections/eu-settlement-scheme-applicant-information, accessed 17 November 2023.

5

None of the residents underwent any form of immigration check from the landlord, Frank; nor did the researcher (an EU national).

6

For more, see C. Barnard, S. Fraser Butlin and F. Costello, ‘The changing status of European Union nationals in the United Kingdom following Brexit: the lived experience of the European Union Settlement Scheme’ (2022) 31 Social and Legal Studies 365. See also C. Barnard and F. Costello’s blog series on the EUSS (2019–2022), published by The UK in a Changing Europe.

7

These rights had been given effect in UK law via SI 2016/1052 The Immigration (European Economic Area) Regulations 2016, now repealed by paragraph 2(2) of Schedule 1(1) to the Immigration and Social Security Co-Ordination (EU Withdrawal) Act 2020.

8

OJ [2011] L141/1.

9

OJ [2004] L158/77.

10

Article 6 CRD.

11

Article 7 CRD.

12

Articles 2 and 3 CRD.

13

See ‘Free movement – EU nationals’ European Commission, available at: https://ec.europa.eu/social/main.jsp?catId=457, accessed 23 November 2023.

14

Inserted by Section 5 of the European Union (Withdrawal Agreement) Act 2020.

15

The provisions apply bilaterally so similar provision is made in relation to UK nationals in other member states, but for the purposes of this book, reference is made only to EU nationals in the UK.

16

Separate agreements were made in relation to citizens of Iceland, Liechtenstein and Norway, and of Switzerland. In relation to Iceland, Liechtenstein and Norway, an agreement was concluded between them and the UK on 20 December 2018: the EEA (European Economic Area) EFTA (European Free Trade Association) Separation Agreement. Part Two of the Separation Agreement is materially the same as the residence provisions of the WA. A separate Swiss Citizens Rights Agreement was concluded, and the provisions are the same as for the WA and the Separation Agreement. These agreements will not be discussed further since nationals from these countries have not been GYROS clients.

17

Article 13(2) and (3) WA.

18

See Home Office, ‘EU Settlement Scheme Statistics’ Gov.uk, available at: www.gov.uk/government/collections/eu-settlement-scheme-statistics, accessed 17 November 2023.

19

Case C-34/09 Ruiz Zambrano v Office National de LEmploi EU:C:2011:124 [42].

20

Case C-34/09 Ruiz Zambrano v Office National de L’Emploi EU:C:2011:124.

21

Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37.

22

For more, see ‘Welcome to the Independent Monitoring Authority for the Citizens’ Rights Agreements’ IMA, available at: https://ima-citizensrights.org.uk/, accessed 23 November 2023.

23

‘Immigration rules’ Gov.uk, available at: www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-eu, accessed 23 November 2023. See also Home Office, EU Settlement Scheme: EU, Other EE and Swiss Citizens and their Family Members (Home Office, 2023), available at: https://assets.publishing.service.gov.uk/media/6527a44c244f8e000d8e7453/EU_Settlement_Scheme_EU_other_EEA_Swiss_citizens_and_family_members.pdf, accessed 23 November 2023.

24

Article 18 WA.

25

Appendix EU 2 and EU 11.

26

Appendix EU 3 and EU 14.

27

R (Independent Monitoring Authority) v Secretary of State for the Home Department [2022] EWHC 3274.

28

For more, see ‘IMA welcomes confirmation that Home Office will not pursue appeal in EU Settlement Scheme case’ IMA (16 February 2023), available at: https://ima-citizensrights.org.uk/news_events/ima-welcomes-confirmation-that-home-office-will-not-pursue-appeal-in-eu-settlement-scheme-case/, accessed 23 November 2023.

29

This section is drawn from an earlier paper: Barnard et al (2022), n 6.

30

For more, see: ‘Permanent residence documents for EU, EEA or Swiss citizens’ Gov.uk, available at: www.gov.uk/permanent-residence-document-eu-eea, accessed 23 November 2023.

31

A ‘qualified person’, as defined in the Immigration (European Economic Area) Regulations 2016, is an EEA national living in the UK as a jobseeker, a worker, a self-employed person, a self-sufficient person or a student; available at: www.legislation.gov.uk/uksi/2016/1052/regulation/6/made, accessed 23 November 2023.

32

Note this figure relates to applications and not applicants, so could include repeat applications from the same person.

33

G. Sturge, Migration Statistics House of Commons Library Research Briefing (November 2022), available at: https://researchbriefings.files.parliament.uk/documents/SN06077/SN06077.pdf, accessed 24 January 2023; see also ‘Census’ Office for National Statistics, available at: https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/bulletins/ukpopulationbycountryofbirthandnationality/yearendingjune2021 accessed 02 December 2023.

34

A paper application may be granted for limited reasons.

35

UK Visas and Immigration, ‘EU Settlement Scheme public beta testing phase report’ Gov.uk (2 May 2019), available at: www.gov.uk/government/publications/eu-settlement-scheme-public-beta-testing-phase-report, accessed 23 November 2023.

36

UK Visas and Immigration, ‘EU Settlement Scheme: application fee refunds’ (28 March 2019), available at: www.gov.uk/guidance/eu-settlement-scheme-application-fee-refunds, accessed 23 November 2023.

37

‘Apply to the EU Settlement Scheme (settled and pre-settled status)’ Gov.uk, available at: www.gov.uk/settled-status-eu-citizens-families/eligibility, accessed 23 November 2023.

38

Home Office, n 18.

39

Ibid.

40

Ibid.

41

‘Summary of EU citizens’ rights’ the3million, available at: https://the3million.org.uk/summary-eu-citizens-rights, accessed 23 November 2023.

43

Home Office, ‘EU Settlement Scheme: current estimated processing times for applications’ Gov.uk (May 2022), available at: www.gov.uk/government/publications/eu-settlement-scheme-application-processing-times/eu-settlement-scheme-pilot-current-expected-processing-times-for-applications, accessed 23 November 2023.

44

J. Portes, ‘Immigration and the UK economy after Brexit’ (2022) 38 Oxford Review of Economic Policy 82, 85.

45

Barnard et al (2022), n 6.

46

T. Guma and R.D. Jones, ‘“Where are we going to go now?” European Union migrants’ experiences of hostility, anxiety, and (non-)belonging during Brexit’ (2019) 25(1) Population, Space and Place 1, 2.

47

Barnard et al (2022), n 6, 369.

48

Ibid.

49

Ibid.

50

Portes (2022) n 44, 84.

51

Interview with council worker (online, October 2021).

52

‘The hostile environment explained’ The Joint Council for the Welfare of Immigrants, available at: www.jcwi.org.uk/the-hostile-environment-explained, accessed 17 November 2023.

53

M. Goodfellow, Hostile Environment: How Immigrants became Scapegoats (London: Verso, 2019), 56.

54

Section 21, Immigration, Asylum and Nationality Act 2006.

55

Immigration Act 2014. See also Immigration Enforcement, ‘Tripling of fines for those supporting illegal migrants’ Gov.uk (7 August 2023), available at: www.gov.uk/government/news/tripling-of-fines-for-those-supporting-illegal-migrants#:~:text=Fines%20are%20to%20be%20more,them%20or%20rent%20their%20properties, accessed 23 November 2023.

56

See The Joint Council for the Welfare of Immigrants’ website at: www.jcwi.org.uk/, accessed 23 November 2023.

57

R. (on the application of Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542.

58

As opposed to its proper meaning, which is when someone has an ‘NRPF’ condition attached to their temporary leave in the UK.

59

Interview with council worker (online, November 2021).

60

Interview with council worker (online, October 2021).

61

GYROS contact monitoring data up to July 2023. In August 2020 GYROS were awarded partnership funding by the National Lottery to continue and increase their service delivery across Great Yarmouth, Ipswich, Thetford and later, Lincoln.

62

C. Barnard and F. Costello, ‘EU settled status: what’s occurring?’ UK in a changing Europe (27 February 2020), available at: https://ukandeu.ac.uk/eu-settled-status-whats-occurring/, accessed 24 January 2023.

63

Pseudonyms are used throughout the book.

64

Client ID 1149.

65

Ibid.

66

C. Barnard and F. Costello, ‘“Even children born in the UK need to apply” – one week left to apply for the EU Settlement Scheme (EUSS)’ Mumsnet (2021), available at: www.mumsnet.com/talk/guest_posts/4276860-Even-children-born-in-the-UK-need-to-apply-one-week-left-to-apply-for-the-EU-Settlement-Scheme-EUSS, accessed 24 January 2023.

67

Interview with council worker (online, October 2021).

68

G. Cowie, ‘Parliament and the three extensions of Article 50’ (31 October 2029), House of Commons Library, available at: https://commonslibrary.parliament.uk/research-briefings/cbp-8725/, accessed 24 November 2023.

69

C. Barnard, S. Fraser Butlin and F. Costello, ‘Unsettled status? Vulnerable EU citizens may lose their UK residence overnight’ LSE (27 November 2019), available at: https://blogs.lse.ac.uk/brexit/2019/11/27/long-read-unsettled-status-vulnerable-eu-citizens-may-lose-their-uk-residence-overnight/, accessed 24 November 2023.

70

The circumstances are: (1) they are applying based on a derivative right to reside; (2) they do not hold a valid identity document and are unable to obtain one; and (3) they are unable to apply using the online application form and cannot be supported to do so.

71

See the website of the3million at: https://the3million.org.uk/, accessed 24 January 2023.

72

‘Internet users, UK: 2020’ Office for National Statistics, available at: www.ons.gov.uk/businessindustryandtrade/itandinternetindustry/bulletins/internetusers/2020, accessed 24 January 2023.

73

Barnard et al (2022), n 6, 380.

74

Client ID 234.

75

Client ID 331.

76

Client ID 1214.

77

Client ID 533.

78

J. Tomlinson and A. Welsh, ‘Digital immigration status: a monitoring framework’ (2020) Public Law Project, available at: https://publiclawproject.org.uk/resources/digital-only-status/ accessed 24 January 2023, 6. See also J. Meers, J. Tomlinson, A. Welsh and C. O’Brian, ‘Rights on paper? The discriminatory effects of immigration status on private landlord decision’ (14 March 2023) UK Constitutional Law Association, available at: https://ukconstitutionallaw.org/2023/03/14/jed-meers-joe-tomlinson-alice-welsh-and-charlotte-obrien-rights-on-paper-the-discriminatory-effects-of-digital-immigration-status-on-private-landlord-decisions/, accessed 3 October 2023.

79

Ibid.

80

This model is dated, and is not a smartphone.

81

Paragraph 4, Schedule 2, Data Protection Act 2018.

82

OJ 2016 L 119/1.

83

R (on the application of Open Rights Group Ltd) v Secretary of State for the Home Department [2021] EWCA Civ 1573.

84

Barnard et al (2022), n 6, 374.

85

Interview with council worker.

86

Client ID 864.

87

Client ID 809.

88

See the OnePay website at: www.onepay.co.uk/forbusiness, accessed 23 November 2023.

89

C. Barnard and F. Costello, ‘EU nationals face new barriers for COVID-19 support’ UK in a Changing Europe (8 April 2021), available at: https://ukandeu.ac.uk/eu-nationals-new-barriers-for-covid-19-support/, accessed 7 March 2023.

90

D. Graham, ‘Thousands unable to get an NI number because of coronavirus’ BBC News (21 October 2020), available at: www.bbc.co.uk/news/business-54619548, accessed 7 March 2023.

91

C. Barnard and F. Costello ‘The EU Settlement Scheme: a resounding success or a perfect storm?’ UK in a Changing Europe (10 July 2020), available at: https://ukandeu.ac.uk/the-eu-settlement-scheme-a-resounding-success-or-a-perfect-storm/, accessed 23 November 2023.

92

Client ID 748.

93

Client ID 982.

94

Home Office and UK Visa and Immigration, ‘EU Settlement Scheme: case worker guidance’ Gov.uk, available at: www.gov.uk/government/publications/eu-settlement-scheme-caseworker-guidance, accessed 20 January 2023.

95

Home Office, n 4.

97

Article 18(1)(d)

98

The Lord Murray of Blidworth letter to the Home Affairs Select Committee 09 July 2023, available here: https://data.parliament.uk/DepositedPapers/Files/DEP2023-0609/Murray.pdf, accessed 03 December 2023.

99

C. Barnard and F. Costello, ’EUSS applications: “meritorious” ones suffer from processing delays; “unmeritorious” ones benefit’ UK in a Changing Europe (14 March 2022), available at: https://ukandeu.ac.uk/euss-applications-meritorious-suffer-from-processing-delays-unmeritorious-ones-benefit/, accessed 23 November 2023.

100

Ibid.

101

C. Barnard and F. Costello, ‘EUSS beyond the cliff’s edge’ UK in a Changing Europe (17 August 2021), available at: https://ukandeu.ac.uk/euss-beyond-the-cliffs-edge/, accessed 23 November 2023.

102

F. Costello and C. Barnard, ‘Advice sharks are benefitting from the cost-of-living crisis’ UK in a Changing Europe (3 November 2022), available at: https://ukandeu.ac.uk/advice-sharks-are-benefitting-from-the-cost-of-living-crisis/, accessed 18 February 2023.

103

The Home Office also holds data on EUSS Family Permit Applications. Home Office, n 4, ‘EUSS family permits enable family members of EU, other EEA and Swiss citizens, resident in the UK by the end of the transition period (and who, with some exceptions, have pre-settled or settled status under the EUSS), and of qualifying British citizens returning to the UK after living in the EEA or Switzerland, to join them in the UK’. See also: https://www.gov.uk/government/statistics/immigration-system-statistics-year-ending-june-2023/why-do-people-come-to-the-uk-for-family-reasons, accessed 12 December 2023.

104

C. Barnard and F. Costello, ‘Paper applications to a digital scheme’ UK in a Changing Europe (23 February 2022), available at: https://ukandeu.ac.uk/paper-applications-to-a-digital-scheme/, accessed 23 November 2023.

105

Primary carer of a ‘self-sufficient’ EEA national child: Case C-480/08 Chen v Secretary of State for the Home Department EU:C:2010:83.

106

Child of an EEA national worker/former worker where they are the primary carer of the child and the child is in education in the UK. Case C-310/08 London Borough of Harrow v Nimco Hassan Ibrahim and Secretary of State for the Home Department EU:C:2010:80.

107

FLR (FP) stands for Further Leave to Remain under the F and P categories of the UK Immigration Rules, which are based on the Family Life (under the Appendix FM) or the Private Life (under Part 7). For more, see ‘Immigration rules’ Gov.uk, available at: www.gov.uk/guidance/immigration-rules, accessed 24 January 2023.

108

Immigration adviser (Norfolk, June 2021).

109

M. Sumption and M. Fernandez-Reino, ‘Unsettled Status – 2020: which EU citizens are at risk of failing to secure their rights after Brexit?’ The Migration Observatory at the University of Oxford (24 September 2020), available at: https://migrationobservatory.ox.ac.uk/resources/reports/unsettled-status-2020/, accessed 4 October 2023.

110

Home Office and Lord Murray of Bildworth, ‘EU Settlement Scheme enhancements confirmed’ Gov.uk (7 July 2023), available at: www.gov.uk/government/news/eu-settlement-scheme-enhancements-confirmed, accessed 24 November 2023.

111

Home Office ‘EU Settlement Scheme quarterly statistics, June 2023’ Gov.uk (24 August 2023), available at: www.gov.uk/government/statistics/eu-settlement-scheme-quarterly-statistics-june-2023, accessed 24 November 2023.

112

Fratila v Secretary of State for Work and Pensions [2021] UKSC 53.

113

‘Check if you have the right to reside for benefits’ Citizens Advice, available at: www.citizensadvice.org.uk/benefits/check-if-you-have-the-right-to-reside-for-benefits/, accessed 24 November 2023.

114

Interview with council worker.

115

For more, see ‘Application for Level 1 EU Settlement Scheme registration’ Gov.uk, available at: www.gov.uk/government/publications/application-for-level-1-eu-settlement-scheme-registration, accessed 24 November 2023.

  • Figure 3.1:

    Permanent residence documents issued to EU nationals, 2012–2018

  • Figure 3.2:

    Age range of applicants to the EUSS up to the June 2021 deadline

  • Figure 3.3:

    Most numerous nationalities of applicants to the EUSS pre and post deadline

Content Metrics

May 2022 onwards Past Year Past 30 Days
Abstract Views 0 0 0
Full Text Views 161 161 105
PDF Downloads 112 112 62

Altmetrics