EU Settlement Scheme: UK’s ‘unsettled status’ affecting EU migration

eu settlement scheme
© iStock/ Cunaplus_M.Faba

Post-referendum Britain has become vastly unattractive to EU nationals, culminating in declining levels of EU migration to the UK, immigration specialist Anne Morris explains.

While the UK has yet to leave the European Union and the terms of its departure remain elusive, the Brexit referendum result has already severely hit EU migration levels to the UK, according to the latest ONS figures.

The statistics tell us the UK has evidently become less attractive as a destination for EU citizens since the UK voted to leave the EU. From peak levels of net migration for the year to June 2016, there has been a consistent decline in EU arrivals into Britain since the Brexit vote, with 2018 seeing the lowest levels of EU migration to the UK since 2013.

Although a surge in net migration of EU citizens to the UK was recorded in the last three months of 2018, this was attributable to a decline in the number of EU citizens leaving the UK – so while net migration from the EU remains positive, with more individuals arriving than leaving, levels have dropped by more than 100,000 over the past 12 months. The conclusion is evident: since the Brexit vote, fewer EU citizens are choosing the UK as a destination to live and work.

And who can blame them?

Under Theresa May’s consecutive tenures as Home Secretary and Prime Minister, the UK has pursued protectionist domestic policies designed to instil greater control over UK immigration and cultivate a ‘hostile environment’ for non-UK nationals.

EU citizens have been targeted specifically under the contentious mandate of the Brexit vote with the end of EU freedom of movement, government proposals for a new immigration system prioritising skills over nationality; and the introduction of the EU Settlement Scheme all impacting the rights of EU citizens to live and work in the UK.

Such measures have fuelled the growing sense of alienation among EU citizens in the UK, sentiments echoed most recently during the European Parliament elections. In response to accusations that EU citizens in the UK had been denied their vote on a systemic scale, the Electoral Commission responded by stating that EU citizens were to vote in their ‘home Member State’ – with no regard or reference to those EU citizens for whom the UK is ‘home’.

The EU Settlement Scheme

Those EU citizens already living in the UK have this year become subject to a new regime: the EU Settlement Scheme. Notwithstanding the delays in Brexit, the UK government has proceeded to roll out the new ‘settled’ status, which will be mandatory for EU citizens wishing to stay in the UK lawfully after Brexit.

As of May 2019, more than 600,000 had applied to stay in the UK post-Brexit, with the majority of applicants from Romania (37,742), Italy (28,575) and Poland (28,214); and with 11,583 from France and 10,825 from Germany. These figures, however, are some way off the three million EU nationals currently residing in Britain.

In our day-to-day dealings with EU nationals, we are seeing overwhelming confusion about their rights and options to stay in the UK. Awareness of the EU Settlement Scheme is low and there is little understanding of both the implications on individuals’ future status in Britain (whether people have been here for three years or 30) and of the process itself to apply for indefinite leave to remain. This is hardly surprising when even fundamentals such as the deadline for applications are still yet to be fixed: the deadline will either be June 2021 in the event of Brexit deal or December 2020 in the event of no deal.

While our experience is limited to individuals looking for guidance, what of those who are not aware that they can and need to apply for settled status? Analysis of the EU Settlement Scheme suggests hundreds of thousands of EU citizens resident in the UK, including vulnerable persons, may be left without status.

The scheme has attracted particular criticism from the Independent Chief Inspector of Borders and Immigration (ICIBI), David Bolt, who made a number of recommendations for the Home Office to improve the scheme, specifically addressing those who want to challenge a decision and ensuring vulnerable people were not excluded through lack of capacity to apply or knowledge of the scheme.

These issues highlight a concerning parallel with the end of the right to free movement from the Commonwealth – EU citizens and their relatives could plausibly be at risk of becoming the next Windrush generation.

In the last 12 months, applications for UK citizenship by EU nationals have increased by 35% to 55,301, as more people seek to confirm their permanent status in advance of Brexit. While there may have been no immediate or obvious benefit for EU nationals to obtain a British passport prior to the referendum, post-Brexit, dual citizenship with the UK may well keep more doors open for UK-resident EU nationals and their children.

An unsettled future for UK immigration

The government’s vision to build a new immigration system which affords greater control over who is ‘let in’ is fundamentally flawed. It assumes people will want to come to the UK and that the UK will continue to be in the fortuitous position of having the choice to be selective. The latest ONS figures are a clear warning that this may not always be the case.

Fuelling the hostile environment and diminishing the appeal of the UK among foreign nationals will undoubtedly hit the UK economy and create advantage for other, more attractive and welcoming nations.

The proposed new UK immigration system, scheduled to take effect by January 2021, will apply to EU nationals who are not settled in the UK. Just as they become subject to the rules, eligibility criteria and application requirements of UK immigration policy, EU citizens should also brace themselves for dealing with the issues prevalent across the Home Office purview: protracted processing; application fees; financial means testing; language and skill assessments; eroding rights of appeal; and increasingly restrictive entry routes.

While the UK continues to lose appeal among European migrants, how will the gaps in the labour market be filled? Ending free movement will not cause employers to start hiring locally, particularly where there is insufficient supply of the required skill or labour in the domestic market.

The ONS figures show non-European Economic Area (EEA) migration has risen to 2011 levels, but it is no silver bullet for UK employers. Hiring non-EEA workers is currently limited to skilled occupations only and requires sponsorship, which comes at significant cost, effort and risk for companies. What is clear is that for the UK to thrive, we depend on migrants, for economic prosperity, cultural identity and social diversity. Families should not be kept apart and businesses should not be deprived of labour and talent.

The future of UK immigration however has never been more uncertain, as we now wait to see how the country’s new Prime Minister will make their mark.

Anne Morris

Immigration Solicitor & Managing Director

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