Laura Devine
Laura Devine Immigration, London
laura.devine@lauradevine.com

Yael Hagheray
Laura Devine Immigration, London
​​​​​​​yael.hagheray@lauradevine.com

EU nationals in the UK: an unseen pandemic in already uncertain times

The United Kingdom’s unprecedented decision to leave the European Union has created a previously inconceivable obstacle for EU nationals wishing to make the UK their home: the need to obtain immigration permission. Following Brexit negotiations, the UK Home Office designed the EU Settlement Scheme (EUSS) for EU nationals and their family members to apply for immigration status in the UK following its exit from the EU and the subsequent transition period, which ended on 31 December 2020. The agreed grace period for making an application, 30 June 2021, has only just expired, plunging the immigration status of thousands of EU nationals and their family members into potential illegality.

What is the EUSS and how does work?  

The EUSS grants immigration permission in one of the following ways:

• settled status: for those who have lived in the UK for a continuous five-year period (known as ‘continuous residence’). Applicants granted settled status can stay in the UK indefinitely; or
• pre-settled status: for those who have not yet reached a full five-year period of continuous residence and are therefore ineligible for settled status. Applicants are usually granted five years’ permission to reside in the UK. Once an applicant has completed a full five-year period of residence, they can apply for settled status (this can be before their pre-settled status expires).

EUSS and Covid-19

As with all aspects of life and society, the coronavirus pandemic has had an effect on those wishing to apply for immigration status under the EUSS. While the scheme was designed to be as streamlined and straightforward as possible, there have been numerous difficulties, which the Home Office took some time to resolve due to the pandemic.

Absences

One (major) problem is that in order for an applicant to be granted settled status, they must provide evidence of five years’ continuous residence in the UK, with no absences of more than six months each year (cumulatively or in a single period). This has been a major problem for those who left the UK to return to their home countries to work, spend lockdown with family or to avoid debt while various job cuts were made across the UK. 

Following recognition of this issue, on 10 June 2021, just under three weeks before the EUSS deadline and in response to a successful legal challenge by the Here for Good charity, the Home Office published revised EUSS guidance on absences related to Covid-19. This was a substantially more generous version than its predecessor.

Absences of between six and 12 months can be for any reason related to Covid-19, including if an applicant has chosen to avoid returning to the UK because there are fewer restrictions elsewhere. Nor would an absence exceeding 12 months break the continuity of residence; however, it must fall within a prescribed set of reasons, for example if the applicant was ill with Covid-19, shielding or in quarantine, etc. Any time spent outside of the UK beyond 12 months will not count as residence in the UK and will need to be ‘made up’ before an applicant can apply for settled status. Applicants must provide evidence of the reason for their absence; however, the guidance is quite broad and flexible on what is acceptable.

So, just three weeks before the EUSS deadline, those with lengthy Covid-19 absences could finally breathe a sigh of relief and apply for immigration status safe in the knowledge that their absences should not affect the outcome of their application.

Reduction in awareness of the EUSS

Due to much-reduced social interaction and lack of face-to-face contact, the pandemic has undoubtedly reduced general awareness of the EUSS. Recent figures indicate that at least 100,000 EU citizens settled in the UK risk losing access to healthcare and other benefits because they have not applied for immigration status under the EUSS.

Several charities and support groups in the UK have worked with vulnerable people to try to help prevent this issue. Despite this, there is a still staggering number of individuals who have either not applied or have no awareness that they need to apply. As a result, they will inevitably encounter myriad problems in future when they attempt travel, change jobs, rent property, open a bank account or access healthcare and benefits.

28-day warning

While fears are mounting that many EU citizens risk losing fundamental rights, Minister for Future Borders and Immigration Kevin Foster has recently announced that immigration enforcement officials will begin giving EU citizens a 28-day warning to apply under the EUSS wherever they are encountered, for example, when applying for benefits and being unable to demonstrate status under the scheme.

While this is welcome news, the last-minute nature of the announcement and the scant detail provided provides very little comfort to applicants and immigration lawyers alike as to how this will work in practice. We must wait and see.