There are different requirements for individuals to gain settled and pre-settled status as compared to the previous permanent residence for EU citizens. The 38/2004 Directive indeed establishes the full right to freedom of movement on the basis of EU citizenship only for the first 3 months of their stay (during which however they also have no right to social assistance). EU citizens’ right to lawful residence for longer periods (and thus to exercise their free movement rights into any member state other than their own) is indeed conditional upon them demonstrating the status of workers, jobseekers, students, a ‘financially self-sufficient person’ and or a family member of these. According to the ‘Citizens Directive’ EU migrants have a right to reside in other member states if they work or if they are out of work but have sufficient resources not to become an “unreasonable burden on social assistance”, and if covered by sickness insurance. The notion of “habitual residence” (different from the UK newly proposed one of continuous residence) is not defined under EU law but national case law over the years has established under which circumstances someone is habitually resident, whereby length and continuity of residence and family links are usually taken into account to ascertain where a citizen’s “centre of interest” lies. In this regard, the UK has demonstrated a stricter approach than other EU member states especially in the area of non-contributory benefits, since the system requires that, besides the “habitual residence test” migrants must demonstrate that they have a ‘right to reside’(see Alberti 2016; Alberti 2017). Under the new system, and differently from the notion of lawful residence under EU law where a kind of link with employment and economic self- sufficiency remain, the UK requirements to obtain settled status appears to require only proof of continuous presence in the territory of the UK, apparently de-linked from work situation. For EU applicants to either settled or pre-settled status thus it becomes a question of evidencing physical and continuous presence in the UK, independent from economic self-sufficiency, employment, the necessity to hold health insurance or proof of not having been a ‘burden’.
This is where we see an element of ambiguity because the kind of evidence that is listed on the Government website rather suggests that a link with the labour market is still required: national insurance number (NINO), P60 or P45; payslips, bank statements, utility bills, annual business accounts, employers contracts or letters confirming employment, letters invoices or certificates form by accredited educational organisations, passport stamps confirming entry at the UK border, tenancy agreements, airlines or train tickets. As employment remains the easiest and fastest way to demonstrate ‘continuous residence’ in the UK there is still much confusion about whether workers will have to prove continuous employment (problems with illegal/undocumented working, ancillary, cash-in-hand, zero hours contracts type of work). This shows that the government is still missing to provide effective communication about settled status for those with precarious histories. If at all, we find striking that the difference between the proof of continuous residence under the settlement scheme and the EU understanding of “lawful status” has not been advertised in the media and public discourse.
In the midst of a turbulent political climate, where hundreds of thousands including British citizens have demonstrated for a People Vote on the deal achieved by the PM, and still waiting for (a very unpredictable) outcome by the Parliament, EU nationals may rather take time and think more inventively about how people without continuous employment and in vulnerable situations can produce evidence to obtain settled status. Pieces of evidence listed by the HO during a local meeting organised with local authorities are for instance: medical appointment letters or letters from the schools demonstrating that migrant parents have attended school-family meetings consistently across a period of time. Such helpful examples are still currently missing from the official HO website and it should be the ongoing work of communities and their reps to demand the government more clarity about what would constitute ‘sufficient evidence’. In contrast in a recent guideline document the HO has specified that personal documents such as personal letter birthday cards would not attest presence, despite the fact that such documents are accepted by judges in immigration courts.
Another key takeaway from meetings with the HO is that about family re-union rights for ascending and descending relatives (including elderly parents and adult children). European citizens who obtain settled status will be in the position to call on their family members to join them in the UK after July 2021. One example that was given is that of a French national who comes to study in the UK, and finds work. His parents in 10 year time decide to retire in the UK to be close to their daughter. In this case, the French national will be able to bring their parents based on the rights emerging from settled status. But what will happen to those whose relatives have non-EU nationality? And what will happen in the event of a no deal to family reunion right as well as the right to return to the EU country of origin with the non-EU relative or carer is also still worryingly uncertain (see the EU rights clinic blog).
With rules being still unclear depending on the scenario and front desk staff untrained, anecdotal evidence suggests that precisely already marginalised individuals can be failed by the system and their (family) life and the lives of their children be potentially destroyed. Vulnerable migrants and women (see also O’Brien 2018 )locked in abusive relationships may be among those mostly disadvantaged by the system of regularisation and falling through the cracks as reported from witnesses and social workers at local meetings on the SS.
The concern with vulnerable communities and their access to settled status is two-fold as it involves both procedural and substantial issues:
At the point of access, people with little or no digital literacy will be more likely to not apply correctly or may fall prey to wrong doers who will charge extra for this service. Similarly, the cost of the application will be difficult to cover for disadvantaged people and large families;
Many Europeans especially from the new member states in the EU would have fragmented employment histories, worked cash-in-hand and self-employment and they lived in shared accommodation in properties at times sublets properties in the private market. It is likely that those with stronger bargaining power (according to their sector and contract of employment) will be also in a better position to obtain that their employers cover for expenses (as it is happening in some universities), but what about those in informal employment/exploitative relations and already highly dependent on their employers?
Another great unknown about the conditions under which settled status can be lost. These continue to be elusive with certainty only regarding that terrorism offences will attract loss of settled status. These conditions should be made clear before the settled status is issued so people are aware of such conditions.
With regard to point (ii) an interesting question emerged in relation to the opportunity that “others” may apply on your behalf (indeed some employers have the IDs and documents of their workers). As the Home office said during the meeting with the local authority mentioned above: “we cannot take the finger prints of those who submitted the application”. A member of the audience raised the point that some employers may decide to apply for you without your consent. Also, some recruitment agencies may do the same if they want to keep workers on their books. By letting employers and agencies apply on the workers’ behalf employment dependency can put the worker and his family in a situation of further uncertainty/vulnerability. This is another example of how immigration controls and the process of “regularisation” may once again ‘filters’ differently desirable migrants and entrench dependencies in the employment relations.
Online status only
A core problem of the settled status continues to be an electronic status only. Border UK officers, landlords and employers will be able to check ‘immigration’ status by verifying it online. Hostile environment policy has already introduced additional duties for employers, landlords, educational institutions to conduct independent checks of immigration status. Prior a competence of immigration enforcement forces only, the hostile environment not only amplified the number of border guards but also extended immigration areas to new actors, particularly in the private sector. The Windrush affair has been indeed provoked by a direct consequence of hostile environment policy and its racist application.
Since an electronic immigration status is unique and has no replica anywhere in the world, there are many questions as to how an electronic immigration status performs in real life situations:
how well does settled status protect the rights it provides to its bearer and family members? Settled status is not solely a residence permit, it is the very source of many rights for European citizens including those of family reunion after Exit day;
How will private landlords, NHS staff, Border UK officers respond to the new status? What do we know about settled status will be incorporated in hiring procedures, for example? Will there be guidance to train them how to verify the online electronic status?
Testing only registration to settled status is not sufficient. The comments from the Migration minister suggesting that it is up to employers to check the right of work of EU nationals before the transition period end has been far from helpful. HO should test how settled status works in practice. Just imagine that when NHS was set up, what we monitored was only registration to National Service not how is protects the good health of the individual and contributes to public health.
Finally, as the UK leave the European Union, European citizens will enter British immigration laws becoming what is known as ‘subject to immigration control’. In a country with a proud tradition of rejecting state issues ID documents and where identity can be proved with cards and driver licences for EU and non-EU citizens alike, they would now need to indicate their permits and settled status number to confirm identity. This is a dangerous conflation of identity and immigration check and it institutes a differentiated regime for British nationals from non-citizen residents.
The production of immobility
Freedom of movement of people in the EU is not waving, it is dying. Settled status is a much-reduced immigration status which promises first and foremost to continue the right to reside while undoing other rights of EU27 citizens, their family members and dependents who are already in the UK. For EU27 citizens elsewhere, they will lose the right to move freely to the UK. British citizens who are often forgotten in the public debates, they will lose their European citizenship with its symbolic and pragmatic value and, with that, the right to enter freely in the EU. This concern is shared and expressed with frustration particularly amongst 16 million British citizens who voted Remain. For both, EU27 as well as British citizens, the right to export and move pensions, social security contributions the portability of these rights it is up in the air with no clear direction or guarantee of their faith.
In these series of changes, the pattern is clear. In post-Brexit Britain, mobility is cast away while immobility is being produced and incentivised for all European citizens. Rights that promote and sustain mobility between the UK and EU such as the liberty to move freely are being abolished; The right to stay put, to be immobility perhaps even naturalised is safeguarded, mobility is sanctioned.
Less than one hundred days away from exiting the European Union, European citizens living in the UK stand to lose many rights associated with freedom of movement (see Favell and Barbulescu 2018; Barbulescu 2017; Ziegler 2018; Kostakopoulou 2018). The ongoing anxiety, uncertainty attached to a no deal scenario for both UK nationals in the EU and EU citizens in the UK, shy information campaigns from the Home Office and a lack of trust in its record particularly after the Windrush affair will impact decisions. In a no deal scenario, applications for settled status would be of no use and the Home Office stores the personal data of applicants. Communities and academics can play an important role in facilitating access to the right information to reach everyone, especially those most isolated, as well as to voice issues and concerns from the bottom up and create the right support network that will protect those who fall through the cracks.
Attempting a more optimistic stance in the midst of never-ending frustrating limbo, there may be a chance to reverse the rhetoric of the “contributing or deserving migrants” whereby the proof of having used social services and the NHS can be twisted and used strategically to support the case for settled status. But can it be, really? Anecdotal evidence rather suggests that migrants without a clear 5-year track, are being advised to sign on as jobseekers and/or of not leaving the country to avoid losing continuity of residence. Or else postpone visits to home countries until they obtain settled status, leading to the old paradox that restrictions to mobility make people actually less keen to move back to their countries. The likely outcome is a more divided and anxious community, precarised and immobilised by a system over which they had no chance to be consulted, as with the very decision to leave the EU.
This post represents the views of the author and not those of the Brexit blog, nor the LSE.
Dr Gabriella Alberti is Associate Professor in Work and Employment Relations at the University of Leeds Business School, member of the Centre for Employment Relations Innovation and Change, and co-founder of the Leeds Migration Research Network.
Dr Roxana Barbulescu is University Academic Fellow and Great Minds Scholar in the School of Sociology and Social Policy at the University of Leeds, co-director of Migration News and co-founder of the Commission on Diversity in the North.
Source: LSE BREXIT