Will Brexit lead to the next Windrush scandal? An emerging hostile environment for EU citizens in the UK

On a hot summer Wednesday in August, the UK Home Office published what looked to be an innocuous change to paragraph EU9 of Appendix EU of the Immigration Rules. This change implemented a new arbitrary deadline of 9 August 2023 for an application for pre-settled or settled status to be deemed valid under the EU Settlement Scheme. I.e. if EU nationals and their family members living in the UK before January 2021 have not applied for status under the EU Settlement Scheme by 9 August 2023, an application submitted now can be rejected.

The UK Home Office had previously announced an arbitrary deadline for an application to be deemed ‘in time’ back in June 2021, but provided a good reason was given with the application, they were generally approved, in line with the Withdrawal Agreement. This new change risks grave consequences to EU nationals and their family members in the UK when free movement to the UK ended in December 2020 who have not yet engaged with the EU Settlement Scheme.

The change makes it a validity requirement to apply for status before 9 August 2023, unless there are reasonable grounds for applying after this date. ‘Reasonable grounds’ are not defined by the Immigration Rules, which is laid before and approved by Parliament, but by a limited and exhaustive list contained at page 40 of Home Office Caseworker Guidance. A decision, which is likely to be challenged in the Courts.

Applicants that can meet the core requirements of the Rules (generally speaking; EU national living in the UK for 5 years starting before 2021 and not being absent for 5 years since acquiring 5 years residence in the UK) are being deemed invalid and therefore the core application is not even being considered. Such a decision does not give rise to a formal right of appeal. The only options for such an applicant would be to:

1. re-submit the application, with the likely outcome of it being rejected for being made after 9 August 2023
2. to seek permission to apply for Judicial Review of the decision. A costly and time-consuming court process with an uncertain outcome but necessary in certain circumstances
3. apply for one of the limited available UK visa options, if eligible.

It is therefore entirely foreseeable that an EU national (let’s call her Daisy) who has been living in the UK for many years, paying taxes, renting a property, raising a family, working, driving, using a UK bank account and contributing to her local community but has not applied for EU Settled Status could see the following happen in quick succession:

1. Daisy’s employer asks for a right to work share code, which can only be generated if an EU national has UK immigration status, something not needed by Daisy before 2021. Daisy does not provide it and the employer dismisses her due to a perceived risk of receiving a fine for employing someone without the right to work in the UK.
2. Daisy cannot get another job in the UK as she cannot provide a right to work share code to a new employer.
3. Daisy’s driving licence expires. She applies for a new one. DVLA ask for a share code to show her right to be in the UK. She cannot provide it so DVLA do not renew her driving licence.
4. Daisy can no longer pay her rent. She looks for another property to rent. No landlord will rent to her as she cannot provide a share code to prove she has the right to rent.
5. Daisy’s bank writes to her asking for her to confirm she has the right to be in the UK. They ask for a share code. Daisy cannot provide this so they close her bank account.
6. Daisy finally applies for EU Settled Status. It is rejected as it is submitted after 9 August 2023.

The Windrush scandal happened because the Home Office wrongly denied legal rights and I can see similar outcomes for EU nationals in the UK before 2021 who have yet to engage with the EU Settlement Scheme.

That said, there is still time to apply for EU Settled Status if eligible and the 9 August 2023 issue can be overcome. If an application for EU Settled Status has been rejected for this reason, it is arguable that this decision is unlawful for the following key reasons:

1. Decisions must be made in line with what Parliament intended and not made on the basis of Home Office guidance alone as per Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 (23 June 2010).
2. ‘Reasonable grounds’ does not mean ‘very compelling practical or compassionate reasons’. If Parliament intended to have a list of what constituted reasonable grounds, this would be in the Immigration Rules.
3. Decisions must comply with section 6 of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights and Fundamental Freedoms. Decisions should also consider whether the applicant acquired a right of permanent residence in the UK under Regulation 15 of the EEA Regulations (had the Regulations not been revoked).

If the Home Office has rejected or refused your application it can be challenged. With the right advice rejections and refusals can be prevented. Often poor decisions can often be looked at by more senior caseworkers and managers at the Home Office and we can help clients avoid the need for litigation, if possible.

If you have any questions in relation to the EU Settlement Scheme and eligibility for settled status, please contact Paul McCarthy.