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From Monday, 21 January 2019, millions of EU citizens have the opportunity to apply for Settled Status, thus solidifying their right to remain in the UK after the country leaves the European Union (EU). The government announced that the proposed £65 fee to apply for Settled Status was to be waived. The Guardian reported that the Prime Minister told MPs she had listened to “powerful representations” on the scheme. “I can confirm today that when we roll out the scheme in full on 30 March, the government will waive the application fee so that there is no financial barrier for any EU nationals who wish to stay. Anyone who has applied during the pilot phase will have their fee reimbursed.”

Despite being sold as an easier alternative to the EU Permanent Residence status, many charities and immigration lawyers fear that the Settled Status process may lead to a new generation of ‘Windrush’ victims – isolated, persecuted, and perhaps in some cases forced to leave the country of their birth because they slipped through immigration law cracks as children.

Between 1948 and 1971, thousands of people arrived from the Caribbean nations after being invited by the British government of the time to come to the UK to help rebuild the nation following World War II and provide much-needed labour, given that many working-age men had been killed or severely wounded in the fighting. They were dubbed the Windrush generation in reference to the ship MV Empire Windrush, which arrived at Tilbury Docks, Essex, on 22 June 1948, bringing workers from Jamaica, Trinidad and Tobago and other islands.

In 1971, the Immigration Act gave Commonwealth citizens already living in the UK Indefinite Leave to Remain (ILR). However, the Home Office at the time did not provide any documentation confirming this, meaning some of the Windrush generation had problems proving that they had a legal right to be in the UK. And in 2010, landing cards belonging to Windrush migrants were destroyed by the Home Office.

In 2018, it came to light that many of the Windrush generation were being denied NHS treatment, losing their jobs, and even being deported because they could not prove they had ILR. This stemmed from changes in immigration law brought in from 2012 which required that people needed to have documentation to work, rent a property or access benefits, including healthcare.

The scandal that followed shamed the nation and led to the Home Secretary, Amber Rudd’s resignation. It also highlighted the devastating unintended consequences of Prime Minister, Theresa May’s ‘hostile environment’ for illegal immigrants’ policy which she implemented when she was in charge of the Home Office.

The risk of Settled Status turning into a Windrush tragedy

However, EU citizens applying for settled status will be required to consent to the Home Office sharing their data with undisclosed third parties. This may include national and international law enforcement agencies and other authorities such as HMRC. But the biggest concern surrounding Settled Status is the fact that it must be applied for, meaning it could be denied. All the taxes, social contributions, and the fact that a person may have lived in the UK for the best part of their lives means nothing.

The Home Office has launched an app to allow those applying for Settled Status to submit their documents for verification without having to mail off the originals (a highly inconvenient thing to have to do, especially if you regularly travel for work or family reasons). However, there are two major pitfalls:

1. The app only works on specific versions of the Android mobile operating system (Home Office officials obviously ‘missed’ the statistic that showed iOS represent almost 50% of smartphones in the UK).
2. It requires NFC (Near-Field Communications) support to work (this is a common but not a standard feature in Android devices).

According to radio station LBC, many people are already experiencing problems with the app. A French national who has lived in Yorkshire for 20 years told The Observer:

“I tried everything but I get to a certain point, and on the screen there is just a wheel going round and round. I can’t make my application. I have tried 12 different PCs, my phone, another friend’s. None of these work.”

Those who have an iPhone or other device, or aren’t online because they are elderly or disabled, can get help at one of 13 centres around the UK. The only one in Scotland is in Edinburgh, while anyone in Cornwall will need to make a trip to Bath. Even then, they will still need to go online to complete their application.

The fact is that registering over three million people for Settled Status is one of the largest tasks that the Home Office has ever had to undertake. As Maike Bohn points out in The New Statesman, – “even if the current processing error rate stays at 10 per cent this still means 360,000 people could be refused the new status, through no fault of their own”. The author points out that although the Home Office plans to cross-link to HMRC records to verify EU citizen’s residency, pilots of the scheme showed many records did not match each other.

All of these problems do not include taking into account EU citizens who may struggle to apply for Settled Status because of personal reasons, such as learning disabilities or mental health problems.

Reasons for refusals

The3million, a non-for-profit organisation formed after the 2016 EU referendum to promote and protect the rights of EU citizens living in the UK, has many comments on its Facebook page from EU nationals who have had their application for Settled Status refused or are having extreme difficulty in applying. One commentator stated they had to wait for a caseworker to be assigned so they can email five years’ worth of documentary evidence, as the maximum number of documents which can be uploaded is 8MB (around 10 documents). You can get around this by compressing the files into PDF using free software available online. However, you need digital skills and time to accomplish this.

If your application is incomplete, rather than refuse the application, the caseworker should contact applicants and give them an opportunity to submit the missing documents. However, as things stand at the time of writing, the remedies available should Settled Status be refused are unclear because Britain may leave the EU with or without a deal.

There is another, little known reason for refusal, which could lead to endless problems for EU citizens applying for Settled Status. Under the Immigration Rules Appendix EU16(b), “[an] applicant is subject to a removal decision under the EEA Regulations on the grounds of their non-exercise or misuse of rights under Directive 2004/38/EC.

EU Treaty rights basically state that once you’ve been in another country in Europe for three months you need to be either working, studying or self-sufficient, so you’re not a drain on public funds. Ian Dunt, writing on politics.co.uk observed that although the Government does not police whether EU nationals are exercising their Treaty rights, this provision provides a way for Settled Status to be denied to anyone considered ‘undesirables’ which could include those who are homeless after arriving in the UK as a victim of sex-trafficking, or people who have committed petty crimes.

In addition, he states that the presence of this provision means the claim by the Home Office that the only criteria for denying Settled Status to someone is if they have committed a serious criminal offence is a lie. The provision was spotted by legal experts at the Joint Council for the Welfare of Immigrants, who have commenced legal action in response.

Will we see a repeat of the Windrush scandal in the coming decades, with EU nationals who were born here or have called Britain their home for decades, being thrown out of the country? Given the Home Office’s previous track record of failing migrants who have contributed vast amounts to the economy and culture of the nation, the prognosis does not look good.

And that should concern us all.

If you have any questions regarding applying for Settled Status, please call us on 020 3893 2547 or contact us online.

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