Quick and uneasy justice: an administrative justice analysis of the EU Settlement Scheme
In the fraught context of Brexit, the need to register EU citizens already resident in the UK presented a major conundrum of policy, law, and administration. The answer that has been offered by the government is the EU Settlement Scheme. It is expected that millions of people, from a wide variety of different backgrounds, will apply to this Scheme to secure their right to continue to reside in the UK after Brexit. Many already have. While there has been lots of discussion about the rules governing status and certain aspects of the registration process, less has been said about the wider model of administrative justice (i.e. the processes by which decisions are made and the routes through which individuals can challenge them) that underpins the Scheme’s operation.
The wide range of administrative justice issues raised by the Scheme is the subject of a new research report published today by the Public Law Project: Quick and Uneasy Justice – Full Report 2019. It examines four key areas in the hope of provided an end-to-end analysis: the legislative and policy design of the Scheme (i.e. the form of the rules); the initial application process; redress systems; and the support and advice landscape. In respect of each of these components, there are multiple complex and interrelated issues which require close scrutiny (including the bizarre “no deal, no appeal” situation). However, the headline point about administrative justice in the Scheme can be put simply: it represents a new and distinct model of immigration administrative justice, which has automation of decision-making at its centre.
The new automated model of administrative justice
The Settlement Scheme represents a significant departure from the Home Office norm as regards initial Home Office decision-making. As is well-known, the traditional norm is a paper application on a form, with attached evidence, submitted to a human caseworker who then makes the decision based on law and policy. A decision letter usually then follows. This typical system will be part of the process under the Scheme, but it will effectively become an ancillary process, with automated data checks being given priority, and on the basis of the trials conducted so far, the sole basis on which a decision is made in the majority of cases. This switch fits into a pattern of a rapidly growing role of technology, and particularly automation, in the Home Office and the public sector more generally (I cover the wider landscape in a recent book, which is available open access online).
The automated part of the application process will use an algorithm to check HMRC and DWP data for proof of residency. Specifically, three fields of data—an applicant’s name, date of birth, and national insurance number—is sent automatically to the DWP and HMRC. Once this information has been received by those two Departments, it is transferred to a “Citizen Matching Layer,” which identifies the applicant and searches the respective Departmental databases for details about the matched applicant. The information is then relayed back to the Home Office and transferred to its “business logic”–an algorithm which is yet to be disclosed publicly–which processes the information to establish the period of continuous residence in the UK. The basic details of this data sharing is set out at Table 1 and the data sharing system between HMRC and the Home Office is represented at Figure 1 (this latter figure is taken from the excellent MedConfidential analysis of the system). It is at the final of the automated check where human official engagement begins. Where the data checks do not result in a pass, applicants will be required to submit additional evidence for those periods not sourced by the automated data checks.
Table 1: General data sharing structure
|Data fields shared||· Employer Name
· Employer Reference
· Employer Address
· Start date
· Leaving date
· Taxable payment
· Payment frequency
· Date self-assessment (‘SA’) record set up
· SA Employment Income
· SA Self Employment Income
· SA Total Income
· Tax year
· Tax Return Date of Receipt
|· Correlation ID
· Start date
· End date
· Benefit type
· Date of death
· Gone abroad flag
· State Pension and New State Pension
· Housing Benefit
· Jobseekers Employment Support Allowance
· Carer’s Allowance
· Universal Credit
· Personal Independent Payment
· Disability Living Allowance
· Income Support
· Maternity Allowance
· Incapacity Benefit
· Attendance Allowance
· Severe Disablement Allowance
|Legal basis of data sharing||· Section 18, Commissioners of Revenue and Customs Act 2005 (to be read in conjunction with sections 17 and 20 of that Act and section 19, Anti-Terrorism, Crime & Security Act 2001)
· Section 36, Immigration, Asylum & Nationality Act 2006
· Section 40, UK Borders Act 2007
· Section 21, Immigration and Asylum Act 1999
· Section 36, Immigration, Asylum and Nationality Act 2006
· Common Law Power of the Secretary of State
|· Section 20, Immigration and Asylum Act 1999 (as amended by Section 55, Immigration Act 2016)
· Common Law Power of the Secretary of State
Figure 1: Home Office and HMRC data sharing scheme
What is to be made of this new model? As with any model of administrative justice, there are various possible strengths and weaknesses. At a very high-level of analysis, the likely trade-offs involved are broadly identifiable. On the one hand, the Scheme may produce quicker decisions at lower cost to the tax payer—both are potentially benefits which should not be understated. On the other hand, it is clear that the Scheme represents an acceleration of an existing trend in immigration towards quick justice at the expense of important safeguards (this can be related to, for example, the removal of tribunal appeal rights in exchange for growth of administrative review). The likely result of this shift, in the longer-term, is that there will be greater divergence in individual experiences of administrative justice. Furthermore, automation is likely to produce new types of grievance and more thought will need to be given to how redress processes are tailored to accommodate them. Building an evidence base on the operation of the Scheme, and its underlying model of justice, is imperative to monitor the Scheme, but also to see how these trade-offs play out in practice.
Dr Joe Tomlinson is Lecturer in Public Law at King’s College London and Research Director at the Public Law Project.