Public Interest Law Centre

public law | human rights | legal action

10Mar 2022

‘This system was created for people with easy lives’

10th March 2022|Brexit, Migrants' rights|

In 2019-21 PILC supported hundreds of EU citizens and their family members to apply to the EU Settlement Scheme (EUSS).  We’ve continued to monitor the scheme post-deadline, assisting clients to challenge delays and refusals and access proof of their immigration status through the Home Office’s ‘view and prove’ portal.

As we and others predicted, the government’s refusal to issue physical proof of status has had  disastrous results for some of the poorest EU citizens living in the UK. In many cases, including where homeless people need to prove their status to access vital social assistance, the consequences are still unfolding.

PILC EU rights adviser Kasia Makowska explains more.

I’ve assisted over 700 homeless and insecurely housed EU citizens and qualifying family members with EU Settlement Scheme applications. Unfortunately, getting pre-settled or settled status for these clients often isn’t the end of the story in terms of securing their rights to housing and welfare support after Brexit.  

The people I support are at high risk of homelessness, including rough sleeping, and other forms of social exclusion. Many lack basic computer literacy and access to technology, while others speak little or no English.

My clients therefore find it much harder than the average person to navigate the intricacies of digital bureaucracy. I’d estimate that only 10-15% would be able to use the EUSS digital portal without help from me or a friend or family member.

Meanwhile, despite some improvement over the past year, many local-authority housing officers and charity support workers still seem to be unclear about how to check an EU citizen’s immigration status using the online system. This is leading to vulnerable individuals missing out on vital welfare support and, in some cases, being trapped in destitution

Tales from my caseload

BW, an Estonian citizen, was referred to me for assistance with a settled status application through the Greater London Authority’s scheme for rough sleepers accommodated on an emergency basis during Covid-19. During our first meeting, I went to the EUSS phone app to start BW’s application, only to discover that the app had already been used to apply for settled status.

When we called the Settlement Resolution Centre we found out that BW had had settled status for a year. Neither the client nor the staff in in her emergency accommodation knew that her immigration status had been resolved and that BW was therefore eligible to apply for mainstream housing support.

In another case, AZ—a Polish national—submitted an EUSS application and was granted settled status two days later. However, she missed the email in her inbox and so didn’t realise her application had been successful. AZ therefore failed to include proof of settled status in her submissions when applying for Universal Credit (UC). As a result, she was deemed not to have a qualifying right to reside and her UC application was refused. AZ was left without benefits for six months and became destitute during this period.

‘Can I use your email address?’

In other cases, we are finding that people’s immigration status is showing up incorrectly on the Home Office’s system as the result of multiple applications being submitted. Last year I was contacted by a local authority about a client, CT, who was living in their temporary accommodation (TA). CT needed proof of settled status in order to remain in her TA and access benefits, but did not know how to access this proof.

When I tried to help CT generate a ‘share code’ to prove her status, her online status came up as ‘Certificate of Application’ rather than ‘Settled Status’. Upon investigation, it emerged that a support organisation had submitted two EUSS applications on her behalf. One of these applications had been granted, but the other was still listed as ‘outstanding’. CT was advised to withdraw the outstanding application, which I assisted her to do, but three months later her application was still listed on the system as ‘outstanding’, despite several calls to the Home Office.

There are also issues with people being unable to prove their immigration status because they can’t access the online system. While supporting DS, a Polish national, with his housing and welfare issues, I tried to help him log into his account to generate proof of his settled status. However, we were unable to do so as the email address linked to the account was the private email of the person who had originally helped DS apply to the EUSS. DS had also lost access to the mobile number linked to his account. He was eventually able to recover his account but only after weeks of delay.

Not knowing how to use ‘view and prove’ is also making it harder for some EU citizens to find and retain employment. I was recently contacted by two Polish clients, who told me that employment agencies were refusing to consider them for jobs. Upon investigation, I discovered that both had been asked for a ‘share code’ and didn’t know how to provide one.

In another instance I assisted a Polish client, GN, who has complex needs, to submit a late EUSS application. GN doesn’t speak English and hasn’t seen his allocated social worker for two years.

When GN was granted settled status, I offered to set up an email address for him so he could keep track of his status. But he didn’t feel able to manage proving his immigration status on his own—and asked if I could give my work email address instead. I had to say no, explaining that he will need access to his status for the rest of his life. It seems unlikely that GN will be able to prove his status when he needs to.

A disaster to begin with’

A physical ID wouldn’t have precluded all of these issues. It’s unfortunately extremely common for rough sleepers to lose personal items such as phones and identity documents while on the streets, or to have these items stolen.

This is one reason why making access to services and social assistance dependent on a person’s immigration status is a disaster to begin with.

But the simplicity of a physical ID would have helped. Apart from anything else, it’s (unfortunately!) a system that people are used to and understand. A digital-only system further entrenches the kind of structural inequality that already renders people with lower levels of English, digital literacy and social capital less likely to access their rights.

The bureaucratic issues I’ve described in this blog usually don’t make headlines, not least because they’re fairly boring to read and write about. But the effects on people’s lives are real and—as in the Windrush Scandal—potentially catastrophic.

In a well-functioning democracy those in power would work that to ensure the basics of life, including housing and a decent standard of living, were easily accessible by everyone. (This is the vision we outline in our 2021 research report on the rights of homeless EU citizens after Brexit.) By contrast, and as JL, a PILC client, puts it, ‘[t]his system was created for people with easy lives’.

the3Million has been running a campaign to #fixthedigitalstatus


 

18Jan 2022

Q&A: Challenging unfair EUSS delays

18th January 2022|Brexit, Case Q&A, Migrants' rights|

Image by dullhunk – licensed under CC BY 2.0

In November we issued a claim for permission to apply for judicial review of the Home Office’s delay in processing the application for settled status of an EU citizen facing pending criminal charges.

In the second in our series of Q&As on PILC legal cases, we outline the basis for the challenge and explore the wider issues raised by this case.

What’s the issue?

Our client, F, is a Polish citizen who has lived in the UK since 2006. He applied for settled status in September 2020 but has not yet received a decision on his application.

F has been told that his application has been stayed (a legal term meaning ‘put on hold’) because he is facing criminal charges. The Home Office say F will not receive a decision on his settled status application until there is an outcome in the criminal proceedings.

Why is this a problem?

The criminal charges F faces are highly unlikely to result in a custodial sentence or deportation action. Having lived in the UK for fifteen years, he meets the criteria for settled status.

F suffers from mental health difficulties and alcohol-addiction issues after experiencing significant trauma. These challenges have made it difficult for him to work and have contributed towards him becoming homeless in the past. They have also had a bearing on his contact with the criminal justice system.

Yet F is being prevented from regularising his immigration status. As a result he has been unable to claim welfare benefits or secure housing assistance.

The Home Office’s policy has effected trapped F in destitution.

What are the legal grounds of our challenge?

We are arguing that the Home Office policy which has caused F’s application to be put on hold is unlawful.

Previous versions of the policy directed Home Office caseworkers to consider whether it was ‘reasonable and proportionate’ to delay decisions on applications in cases where applicants face pending criminal charges. However, this discretion has been removed in recent versions and it is now mandatory for applications such as F’s to be delayed, even where delay will cause serious harm.

We say that inflexibility of the current version of the policy is unlawful, and that it breaches the United Kingdom’s obligations under the Withdrawal Agreement.

We are also arguing that the Home Office has failed to consider F’s application for settled status in a reasonable time frame. The standard time frame for considering EU Settlement Scheme applications (EUSS) is five working days or no longer than a month.  Yet F has been waiting for more than a year.

Moreover, in view of the nature of the criminal charges and the length of time the criminal proceedings are taking, we believe it is unreasonable for the Home Office to pause consideration of F’s application.
Finally, we are also arguing that the delay has directly resulted in the hardship to F, which amounts to a violation of his rights under Article 3 and Article 8 of the European Convention on Human Rights.


Are other people experiencing the same issues?

In short—yes.

Our partner organisations report that other vulnerable EU citizens are experiencing long delays (of over six months and in some cases well over a year) in the processing of their EUSS applications.

These delays are causing uncertainty about people’s rights and entitlements. Some applicants are struggling to access benefits they should be entitled to. Others have not been able to obtain valid certificates of application that would allow them to continue to prove their right to work pending a decision.

A significant number of those left in limbo have disabilities or other complex needs. In some cases support organisations and even MPs have written to the Home Office asking for decisions to be expedited—usually to no avail. (Both individuals and support organisations report difficulties contacting the Home Office.)  

Many (though not all) of those experiencing EUSS delays have had their cases put on hold either because they have a criminal record or because they are facing criminal charges. The charges or convictions concerned frequently relate to low-level offences linked to poverty and addiction.

Applicants report distress and anxiety as a result of the delays. At least one has been denied the opportunity to study at university because they could not prove their eligibility for student finance.

What wider issues does this challenge raise?

The Home Office’s policy of staying EUSS applications where there is a pending prosecution benefits nobody.

As PILC solicitor Ellen Fotheringham puts it: ‘Our client, who has lived in the UK for over 15 years, is on the verge of street homelessness as a result of this policy. It is clear that despite countless warnings no lessons have been learned by this government from the Windrush Scandal, with EU citizens now being exposed to the same devastating uncertainty about their rights.’

There is another an important principle at play in this case: a person’s right to remain should not depend on whether they have been charged with or convicted of a criminal offence.

Over 11 million people in the UK have a criminal record. There is a strong link between poverty (and other forms of structural injustice) and having a criminal conviction. Those who are racialised as non-white and those from a migrant background are disproportionately likely to have a criminal record despite people from such groups not being more likely to commit crime.

Stopping people from regularising their immigration status due to a pending prosecution is just one instance of a trend through which rights that should be universal (such as a person’s right to live in the country they call home) are increasingly being differentiated. This means some people are accorded those rights unconditionally, while others (usually members of marginalised groups) may be denied them in certain circumstances.

The government’s plan to make it easier to deprive some British citizens of their citizenship represents another example of this worrying trend.

We will provide further updates on this case as it progresses.