The EU Settlement Scheme: Trends and Forecasts
By Alice Welsh & Joe Tomlinson (University of York and Public Law Project)
The EU Settlement Scheme was established to allow EU citizens resident in the UK to apply to remain in the UK after Brexit. The Scheme is novel and complex in various respects (a detailed analysis of its design is available here) but, as we enter 2020, it is useful to take a step back to review the macro-level trends and to offer a forecast of the key issues on the horizon. To do this, we draw upon statistics published by the Home Office (as we have explained elsewhere, this data is far from ideal but can provide the big picture).
The Home Office statistics show that, since the Scheme opened, nearly 2.6 million applications have been lodged, of which 2 million have been determined. These headline figures should, however, be read only while keeping in mind that the Home Office is known to have double counted repeat applications by the same individuals.
Of all the applications lodged, 60.9% of applications have resulted in a grant of settled status and 38.5% have led to a grant of pre-settled status. 0.7% of applications led to, what the Home Office refers to as, “other outcomes.”
The share of applicants who have received pre-settled status has increased over time. A grant of settled or pre-settled status determines the terms by which an individual can stay and access services in the UK after Brexit. Pre-settled status is a form of limited leave to remain whereas settled status, granted to individuals who have been resident for five or more years in the UK, is indefinite leave to remain. Settled status provides greater protection of residence rights and greater access to services such as social benefits and housing. Pre-settled status expires after five years but can be upgraded after applicants have resided in the UK for five years. While the early months of the Scheme showed that grants of pre-settled status were only around 30%-35%, this has increased to 44% in October 2019 and 47% in November.
While the applications classified as “other outcomes” only make up 0.7% of outcomes overall, this still amounts to just over 16,000 applications. The Home Office defines this category as applications that are “withdrawn or void (including where the applicant was ineligible to apply, for example, because they were a British citizen), was invalid as it did not include the required proof of identity and nationality or other mandatory information or was refused on eligibility or suitability grounds.” The breadth of this definition is unhelpful in understanding the significance of this figure. The statistics show that, so far, there have only been 5 outright refusals. In the early months of the Scheme, no refusals were recorded. Since August 2019, there has been at least 1 each month.
The Home Office also has a substantial backlog of applications, which currently stands at 361,900. While this is not the highest it has been in the course of the Scheme (there was a backlog of 525,500 in October 2019), it is still a significant number of outstanding applications in need of determination.
So far, the statistics follow the pattern that was widely expected: the Scheme was designed to generate positive decisions quickly and many also expected the early months of the Scheme to process the less complex applications swiftly. The next period of the Scheme may, however, be when any latent, major problems begin to surface. Based on our tracking of the Scheme to date, our view is that the following areas will be worth monitoring:
- The backlog of applications. One concern is that many more complex cases or refusal decisions could be waiting in the backlog of applications, and the ‘easy cases’ are showing up in the current, broadly positive figures. Whether the grant/refusal rates shift as this backlog is processed will be a key indicator of whether this concern is accurate.
- Missed deadlines. Deadlines for the EUSS mean that, inevitably, some people entitled to settled or pre-settled status will not have made an application in time. If awareness levels of the Scheme are low or if those who have lived in the UK, potentially for a long time, without ever having to register their immigration status do not realise they have to, there is a risk that a significant number may not apply in time. While the Home Office has room for some discretion to consider late applications when there is a ‘good reason’ for the deadline to have been missed, they have not detailed clearly what will and will not constitute a ‘good reason.’ There is a further risk that awareness of the scheme will drop off more after the deadline, meaning that those who missed the deadline may not know that they can still apply or that they will be required to show a good reason for the late application. Those who pass a deadline without having made the necessary application will essentially find themselves without status in the hostile environment. The central issue will be how applicants who missed the deadline will be managed.
- The effects of pre-settled status. Current trends suggest we are likely to hit a point soon where grants of pre-settled status may start to overtake those of settled status. Once the UK leaves the EU, the difference in status will become more apparent, including its impacts on access to public services. As pre-settled status expires after five years, there is an additional risk that awareness of the need to upgrade to settled status will be low.
- Measuring “success.” Nobody knows how many EU citizens are resident in the UK. The upshot is that nobody knows when the Scheme will have processed everyone it is intended to. There is already evidence to suggest some estimates are substantially incorrect (g. 112% of the Bulgarian nationals expected to apply have already applied). As we get closer to the deadline for the Scheme, we will likely learn more about the robustness of current estimates.
- Digital status. Under the Scheme, applicants receive their new immigration status in digital form only. Once the UK leaves the EU and these statuses are relied upon for proving a right to enter and reside in the UK, as well as accessing vital services, further issues with a digital only status may emerge. Unlike those with nationalities outside of the EU, EU nationals will not have a physical document as a backup. Instead a digital system will be their sole proof of status. Those who required assistance in making an EUSS application may also struggle to access and use a digital-only immigration status. Concern also extends to actors such as landlords or employers, who will be expected to access the digital status themselves to confirm an EU national’s right to work or rent.
This is not a comprehensive survey of issues within the Scheme, but it provides a sense of the big questions likely to arise during 2020 and beyond. The Home Office statistics will continue to be of some (limited) use in providing an impression of how the Scheme is working, but further empirical evidence on these issues will be critical in developing a better understanding of how the system is working in practice.