The Migration Observatory University of Oxford - Written Evidence (Miss0003)

The Migration Observatory University of Oxford 58 Banbury Road Oxford OX2 6QS

19 April 2023

The Chair of the European Affairs Committee House of Lords

London SW1A 0PW

Dear Lord Chair,

Following your request for information, please find below a short note outlining statistics on outstanding issues in the United Kingdom’s EU Settlement Scheme (EUSS).

Background

A casual observer might be forgiven for assuming that the task facing the scheme — securing the status of millions of EU citizens and their family members who came to the UK under EU free movement rules — is over. After all, the EUSS deadline passed in June 2021; by the end of 2022, just over 6 million people had applied (Table 1). Yet the EUSS, and hence the immigration status of people who came to the UK before Brexit, remains a live issue. Our letter outlines three key challenges that remain.

1.      Late applications

From the early days of the EU Settlement Scheme, the challenge of ensuring that everyone applies has been clear. The total number of people eligible for EUSS has never been known, and there are currently no estimates of how many have not applied. Many people eligible for the EUSS have vulnerabilities that make it harder to apply to the scheme or show how long they have lived in the UK. As a result, it was always clear that some people would miss the June 2021 deadline.

By the end of 2022, the EUSS had received 396,000 late applications. Around 148,000 had led to a pre-settled or settled status grant, 126,000 had been refused, and 87,000 were still awaiting a decision. Data to the end of June 2022 suggest that Romanian and Bulgarian nationals were overrepresented among late applicants, making up almost half (47%); this compared to just over a quarter of all applications submitted before the June 2021 deadline (FOI 72404).

The substantial number of late applications granted status shows that concerns about eligible people missing the deadline were well-founded. However, how many people remain without status despite being eligible remains unknown. Notably, late applications have not consistently declined over time and remained at more than 15,000 per month throughout 2022.

As the EUSS main deadline recedes into the past, the challenge of adjudicating late applications grows. First, applications submitted now require evidence that the applicant lived in the UK over two years ago. Some evidence types, such as old leases or contracts, become harder to source as time passes. Second, applicants coming forward more than a year after the deadline may be more likely to have vulnerabilities that prevented them from applying sooner. Third, there is now more time for people to have arrived after the cut-off date and apply for the EUSS despite—knowingly or unknowingly—not being eligible. As a result, the Home Office faces a more difficult task of distinguishing between ineligible and eligible but vulnerable applicants.

Against this backdrop, the refusal rate has increased sharply over time, from below 3% of all decisions in early 2021 to over 40% by December 2022 (Figure 2). A further 4% of all applications were classified as invalid, void or withdrawn, rising to almost 8% by the end of last year.

2.      Pending applications and the EUSS backlog

One of the most pressing challenges in the EUSS is the number of applications waiting for a decision. Delays put a burden on individuals due to the uncertainty of waiting and the risk of losing entitlements while they wait. In principle, people with a Certificate of Application can work pending an EUSS decision. However, qualitative research and charities supporting applicants have found that some experience problems with employers or landlords during this period of uncertainty.

Most EUSS decisions have been relatively quick: just over half (56%) of applications had received a decision within 30 days by June 2022 (FOI 72073). However, some people have waited much longer, and waiting times increased over the scheme’s life. For example, only 23% of applications submitted in 2021 received a decision within a month, down from 74% of those submitted in 2019. More than 13% of applications submitted in 2021 faced a wait of 6 months or more, compared to under 5% in 2019 (Figure 3). By the end of June 2022, over 25,000 (0.4% of) decisions had taken more than a year.

The speed of decision-making has also varied widely by nationality (Figure 4). For example, applicants from Slovakia, Romania, and Bulgaria have experienced slightly longer waits than those from Poland and Lithuania. Yet the biggest divide is between EEA applicants and non-EEA citizens eligible for the programme as partners or family members of EEA citizens. Most applications from European nationals receive a decision within a month, but the proportion falls as low as 12-15% in the case of Albanian or Nigerian citizens.

As of December 2022, around 181,000 applications were still awaiting a decision. This backlog had fallen from a peak of over 600,000 at the time of the June 2021 deadline, yet at a decreasing rate.

Of the 226,000 applications pending at the end of June 2022, 37% (84,000) had been waiting for a decision for over six months. Almost 49,000 (22%) had waited over a year (FOI 72073).

The number of applications in the backlog also varies widely by nationality. As of December 2022, about 2.5% of total applications were still pending. Non-EEA family members were more likely to have pending applications (4.4%), along with nationals of Sweden (5.7%), Romania (4.6%) and Bulgaria (3.8%). These are also among the nationality groups with higher shares of refusals.

Processing delays are not unique to EUSS but have emerged across the immigration system in recent years. Other well-documented examples include the large asylum processing backlog and delays in processing refugee family reunion applications. EUSS processing delays bring important drawbacks. They increase uncertainty and risks facing applicants who will ultimately receive status and also delay the process of resolving the cases of people who are not eligible (for example, because they arrived after December 2020) but are nonetheless living and working in the UK.

3.      Loss of status

The original design of the EU Settlement Scheme envisaged that EU citizens with less than five years of continuous residence in the UK would receive temporary, pre-settled status and that this status would expire after five years. After that, they would have to reapply to EUSS for permanent, settled status. Those who failed to reapply would lapse into irregular status, losing their rights to live, work, rent housing, or access medical treatment in the UK. By the end of December 2022, 2.1 million people still held pre-settled status, and 18% of people who had ever received pre-settled status had upgraded to settled status (Table 3&4 EUSS_RA_01).

In December 2022, the High Court ruled that removing legal status from EUSS status holders in this way was inconsistent with the EU Withdrawal Agreement. The Home Office decided not to appeal the judgment and is now preparing to implement it. At the time of writing, it had not yet announced exactly how it would do this. For example, it could simply upgrade everyone from pre-settled to settled status after five years without asking for any further information—the most liberal option. Another option would be to leave people in pre-settled status indefinitely unless they reapply and show they are eligible for settled status.

If some form of application for settled status remains in place, applicants will face fewer risks to their status (because they could not lose it simply due to failing to reapply), but similar question marks that hung over the original design remain. For example, it is more difficult for applicants to secure settled status than pre-settled status because this requires evidence of five years of continuous residence. By the end of June 2022,

approximately 175,000 applications involved a case where the person applied for settled status but received pre-settled status instead. Of these, the top six nationalities

- Bulgaria, Spain, Portugal, Poland, Italy, and Romania – make up 53% (94,000). As a share of applications, Romanians and Bulgarians, along with Italians, were especially likely to be in this situation. As of mid-2022, 6-7% of their applications for settled status had received pre-settled status instead. These people may have had insufficient evidence of their residence or was ineligible for some reason, such as absences from the UK. Any difficulties such people have had securing settled status may well remain under any future system that still requires an application.

Regardless of how the Home Office implements the court judgment on pre-settled status, there is still great uncertainty about whether and how people will lose their status due to absences from the UK. Under the Withdrawal Agreement, people who do not yet have permanent status (i.e. those with pre-settled status) can lose their right to permanent residence if they have absences of more than six months per year. People with permanent/settled status can be absent for up to five years without losing their status. It is not clear how well EUSS status holders understand the absence requirements.

What is clear is that absences from the UK have occurred at a relatively large scale. On Census day in March 2021, only an estimated 3.5 million non-Irish EU passport holders lived in England and Wales. This suggests that somewhere in the order of one million EU citizen EUSS status holders might be living overseas. Many will be people who previously lived in the UK, moved away, and have no plans to return. However, others may have returned to the UK or still plan to do so—it is not clear how many and how long they were away. Nonetheless, the figures raise the question whether and

how the government plans to monitor absences from the UK among people with pre- settled status and whether it will proactively remove status from—vs. show leniency towards—people who have exceeded the allowable absences but are otherwise long- term residents in the UK.

We hope the above information proves helpful to the work of the Committee and remain at your disposal for any necessary clarifications or further details.

Sincerely yours,

Madeleine Sumption

Mihnea Cuibus

Migration Observatory at the University of Oxford

Received 20 April 2023