Published:  19th May 2021

Significant positive developments secured despite the Court refusing to consider three EUSS judicial review challenges in advance of the 30 June 2021 cut-off date

19 May 2021

Unfair aspects of the EUSS

Since the EU Settlement Scheme (EUSS) was launched into 2019, Public Law Project (PLP) has been closely monitoring its roll out and operation. Our goal in this work has been to ensure that the EUSS operates fairly and lawfully, promotes access to justice and protects the interests of marginalised groups.

As part of our work to achieve these objectives, PLP has recently been instructed as legal advisers to three NGO partners concerned about unfair aspects of the EUSS system.

Two cases focused on the risk of applicants falling off the ‘cliff-edge’ into unlawful status at the end of the ‘grace period’ on 30 June 2021. These were:

  • A challenge by the Joint Council for the Welfare of Immigrants (JCWI) to the failure by the Home Office to collect and monitor data on the protected characteristics (e.g. sex,  race, disability) of applicants to the EUSS and to put in place appropriate safeguards for those unable to apply by the application deadline on 30 June 2021.  This claim was supported by evidence from: Coram Children’s Legal Centre; Age UK; Roma Support Group; and Professor Jonathan Portes.
  • A challenge by Migrants Organise to the failure by the Home Office to put in place appropriate arrangements to ensure that people with impaired mental capacity are able to apply to the scheme before the deadline.  This claim was supported by evidence from: Social Workers Without Borders; Immigration Law Practitioners’ Association; and Age UK.

The third challenge was brought by the3million against the discriminatory effects of the Home Office’s ‘digital-only status’ policy under which EEA citizens who are granted leave to remain under the EUSS will be required to use an online system to prove their status and will not be given a physical document as proof of their status regardless of their individual circumstances.  This claim was supported by evidence from: New Europeans; Age UK; Roma Support Group; Royal National Institute of Blind People; Migrants Organise; and Work Rights Centre.

Improved guidance and policy

Despite the claims ultimately being unsuccessful in court, they achieved significant positive developments in the EUSS system along the way. The claims have influenced positive developments in Home Office policy and guidance.  

First, since the JCWI and Migrants Organise claims were commenced, there have been significant updates to the guidance to Home Office caseworkers who deal with applications to the EUSS:

  • There is now five pages of detailed guidance about individuals with impaired mental capacity (pp. 127-131).
  • The guidance now contains a detailed section about who will be considered to have reasonable grounds to make a late application to the scheme after 30 June (pp. 27-44), which includes various protected groups that JCWI represent and individuals with impaired mental capacity who Migrants Organise represent.
  • The guidance states that if, after the deadline, Immigration Enforcement come across people who may be eligible to make a late application to the EUSS, they must signpost people to the scheme and give them chance to apply before taking any enforcement action against them (pp. 30-31).

By the Home Office’s usual standards, this guidance is comprehensive and generous. It goes some way to mitigating the risks of falling off the ‘cliff-edge’. We believe that at the very least this guidance was influenced by the litigation.

Second, during the course of the digital-only status claim, the Home Office revealed details of a telephone helpline which it says will be available to help people to access their digital status or, if they are unable to access it even with assistance, send proof of status directly to third parties such as employers and landlords. This is an important concession which should enable at least some vulnerable people who cannot use the digital-only system independently to prove their status when required to do so. The helpline does not appear to have been referred to publicly prior to the3million its claim and we believe it to be likely that its development was in response to the litigation. Further, the Home Office committed to publish guidance about the helpline before the end of the grace period on 30 June 2021.

Mitigation rather than prevention

The common theme in each of the cases is that the courts have considered the claims to be ‘premature’. Ultimately, the courts took the approach that whilst they might consider a future claim which shows that actual harm has been caused, they did not feel able to act prospectively to prevent future harm from occurring.

In the claims relating to the application process (JCWI and Migrants Organise), the courts effectively concluded that it is too early to say whether large numbers of vulnerable people will fall over the cliff-edge on 30 June 2021 and too early to judge whether the mitigating measures the Home Office has put in place will act as an effective safety net.

Similarly, in the claim relating to the digital-only status policy (the3million), the Court concluded that it is not possible to assess whether the policy will have a discriminatory effect and, if so, whether that is justified, until the policy comes into full force and EEA citizens are required to rely on the online system after the end of the grace period on 1 July 2021. 

JCWI, Migrants Organise and the3million are disappointed with these outcomes and believe there will be a significant human cost among the affect groups. The fact that the claims were brought in anticipation of the application deadline and the end of the grace period made them ambitious. It was important to do so to prevent foreseeable harm to large numbers of vulnerable people from 1 July 2021. Although the courts left open the possibility that further claims could be brought in the future, after 1 July, if the relevant policies have a discriminatory effect in practice, any such claims will necessarily be aimed at mitigating harm which has already been caused, rather than preventing it.

We believe that it was the right thing to do to bring these claims prospectively in an attempt to prevent (rather than just mitigate) harm. The fact that the cases unsuccessful is disappointing but does not undermine that ambition. Moreover, the claimants in each of these cases have put the Home Office on notice that there are people willing to litigate on behalf of vulnerable EUSS applicants when it is necessary to do so. We trust that this will ensure the Home Office pays due attention to the interests of these people when developing and implementing policy following the grace period and beyond.

What’s next?

All those involved in the cases are concerned about vulnerable people falling off the cliff-edge and becoming undocumented from 1 July 2021 and about people who have been granted status but are unable to prove it due to the digital-only status policy.

We and our partners intend to continue to closely monitor and collect evidence in relation to these issues. If, as we fear, the system does not work effectively and causes disadvantage and discrimination against vulnerable groups after 1 July, we will consider all options including further litigation.

In the meantime, it remains vitally important for eligible individuals to submit an application to the EUSS before 30 June 2021 to protect their position in the UK. If you are a frontline organisation working with vulnerable migrants and would like free-of-charge advice on complex EUSS cases, please email Christian Davies at [email protected].