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.
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’.
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?
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.
There was a lack of information available for people with NRPF on how to access support during the pandemic
People with NRPF who contracted Covid-19 were particularly likely to die or become seriously ill
People with NRPF struggled to access food and shelter during the pandemic, with local-authority ‘gatekeeping’ continuing to be a major issue
Local authorities have statutory duties towards two categories of people with NRPF: families with ‘children in need’ and adults with care needs. But there are significant variations in how these duties are implemented. Many migrants in need of support were unable to access their entitlements before Covid-19.
During the pandemic, local authorities were called upon by central government to provide support to a third group of people with NRPF who would not normally be eligible for assistance: single homeless adults without care needs. Our research shows that, while some councils put in place effective emergency support for this group, the England-wide response of local authorities was frequently characterised by confusion, a lack of information about support options, and gaps in essential provision (e.g. food).
Our research focuses on the period during which the UK was in ‘lockdown’. But the problems highlighted in our report continue. Local authorities continue to be underfunded and many people with NRPF still live in destitution.
It is unclear what will happen to homeless adults with NRPF who have no statutory entitlement to support as public-health concerns subside. No new legislation or statutory guidance has been introduced during the COVID-19 pandemic to amend the entitlement to local-authority support of people with NRPF who would not ordinarily be eligible.
The effect of the absence of new legislation or statutory guidance has been twofold. Firstly, the support provided to this group has been inconsistent and unpredictable both within and across local authorities. Secondly, it has been difficult for individuals or their advocates to effectively challenge local authorities in cases where single NRPF adults have been refused support or accommodation or where the accommodation or support offered has been inadequate.
Our research indicates that while some local authorities are trying to respond in a way that respects people’s rights and dignity, others do not want to continue to support people with NRPF, with a number planning to resort to so-called ‘voluntary returns’ or ‘reconnection’. In the view of many of our research participants, only an urgent end to the NRPF system can adequately address the problems that have been highlighted by COVID-19.
Today we are joining more than a hundred charities, campaign groups, lawyers and councillors in urging local councils not to evict homeless people with NRPF from accommodation provided through the Covid-19 homelessness response.
PILC and Migrants’ Rights Network have today written to the Secretary of State for Housing, Communities and Local Government protesting MHCLG’s failure to fund and properly empower local authorities to support rough sleepers and other single homeless people with NRPF through Covid-19.
Local authorities have been informed by MHCLG that they are not required to accommodate homeless people with no recourse to public funds and will not be reimbursed for doing so.
This information, and the ongoing failure to provide self-contained accommodation and support to homeless people with no recourse to public funds, is at odds with the homelessness minister’s clear instruction on 26 March 2020 to ‘bring everyone in’.
Leaving people with NRPF homeless during this crisis is not only a moral and humanitarian failure. It is also incompatible with the need for everybody to stay at home and avoid all unnecessary contact with others, as outlined in the government’s own COVID-19 Guidance on Social Distancing.
Local authorities cannot provide essential shelter and support to ‘those with no recourse to public funds who require [it]’ unless they are properly empowered and funded to do so. It is clear that both the lack of clear published guidance from MHCLG and a lack of adequate, ringfenced funding are contributing to the failure to provide support to all homeless people regardless of immigration status.
The letter calls on Robert Jenrick to:
1) Issue formal guidance to LAs making clear that all homeless people must be supported regardless of immigration status and telling them what powers they should use;
2) Make specific, ring-fenced funding available to all local authorities to cover the actual cost of supporting people with NRPF through this crisis; and
3) Instruct, and fully fund, local authorities to continue to accommodate and meet the subsistence needs of all migrants with NRPF after the ‘lockdown’ ends, pending the urgent abolition of the no recourse to public funds (NRPF) regime.
On March 20th PILC, along with Migrants’ Rights Network, Project 17 and over fifty other organisations, wrote to local authorities in England demanding that they take urgent steps to protect and support vulnerable migrants, particularly those with No Recourse to Public Funds (NRPF) and those experiencing or at risk of homelessness, during the Coronavirus (Covid-19) pandemic.
On March 26th the homelessness minister wrote to councils directing them to ‘bring everyone in’. Three weeks later, many vulnerable migrants are still without shelter or enough to eat.
Today we have again written to councils in England demanding urgent action on this issue.
Among the issues we are seeing at local level are:
● Local authorities offering hotel accommodation only to ‘verified’ rough sleepers, with the result that many migrant homeless people (e.g. DV survivors, those who squat or sleep on buses) are being excluded from provision
● Housing officers telling destitute migrants that accommodation ‘can only be provided to people with recourse to public funds’
● Homeless migrants being placed in hotels far from their networks, with no/inadequate provision being made for their subsistence
● Homeless migrants being placed in hotels but given no contact details for key workers/housing officers
● Migrant rough sleepers being asked to share rooms and even beds
● Increased ‘gatekeeping’ of support provided to destitute migrant families under Section 17 of the Children Act 1989
● Threats of data-sharing with the Home Office
Central government bears much of the responsibility for the ongoing failure of councils to provide care and shelter to all who need it regardless of immigration status.
MHCLG has failed to provide detailed guidance on how local authorities should support people with insecure immigration status. There is a clear and urgent need for central government to take steps to make it easier for local authorities to provide support, including by amending the Housing Act 1996 and accompanying guidance and removing immigration-status based eligibility criteria for access to welfare benefits.
However the local-authority practice issues we are raising are crucial to the welfare, safety and wellbeing of migrant communities. The ongoing failure to provide appropriate support to all those who need it regardless of immigration status is not only a moral failure and a breach of local authorities’ Public Sector Equality Duty. It also poses a serious public health risk, leaving vulnerable migrants unable to socially distance and, where needed, self-isolate.
We are demanding that local authorities:
● Urgently direct all frontline staff, including housing officers, social services departments and commissioned service providers, to offer non-statutory accommodation and support to all people ‘who are, or are at risk of, sleeping rough, [as well as] those who are in accommodation where it is difficult to self-isolate’
● Make clear to all frontline staff that this support must be provided regardless of immigration status, and that standard legal tests for the provision of statutory support (proof of homelessness, eligibility, priority need, intentionality, local connection) are to be disregarded
● End all ‘gatekeeping’ of support for vulnerable migrants
● Ensure that all homeless people accommodated through the pandemic response are able to meet their basic needs for food, hygiene and travel (where appropriate e.g. for medical reasons)
● Communicate clearly (i.e. in writing in a language they can understand) to all homeless people accommodated through the pandemic response about where, why, by whom and for how long they are being accommodated; and whom they can contact for support in an emergency
● Make language-appropriate provision for people with disabilities, mental health and substance-misuse issues, and other support needs
● Make a public statement to the effect that all of the above support will be provided to all who need it regardless of immigration status; and that information will never be shared for immigration-enforcement purposes
Our latest letter can be read and downloaded here.