While there are many views on what kind of Brexit the UK should be negotiating, one thing that has gone mostly undisputed is the need to guarantee the rights of EU citizens and their families presently living in the UK, including the right to stay on indefinitely in the country.  

To recognise and regularise those rights, the UK government established settled status, an immigration scheme similar to indefinite leave to remain. The scheme has considerable benefits for applicants, such as no application fee and greater flexibility to live outside the UK without losing their status: up to five years instead of two. However, there are concerns about this scheme which need to be addressed.

One issue is that the relationship between settled status and UK citizenship has not yet been clarified. A new briefing from Professor Mark Kleinman at the Policy Institute highlights this ambiguous relationship, including how different leading Conservative Ministers have responded to it. Confusion on recent statements by Prime Minister Johnson about EU citizens’ rights has not made this any clearer. Is this ambiguity a good policy position for the UK?

 

There could be people living here for the next century who will have legal rights and protections under the citizens’ rights provisions of the Withdrawal Agreement. Assuming the agreement is ratified, these protections apply not only to EU nationals currently living in the UK, but also their children. Seen in this light, the settled status scheme does not draw a neat line under the past relating only to EU nationals who previously moved to the UK. Rather, settled status will have relevance for a considerable number of people, perhaps more than 4 million, for many decades to come.

 

In this context, failing to carefully consider the relationship between settled status and citizenship risks creating an ambiguous “in-between” legal immigration status, with the potential for individuals’ statuses to be subject to future changes in policy, as we witnessed with the Windrush generation. From a rule-of-law perspective, in order to avoid a repeat of Windrush, clear legal provisions are needed for settled status in the long term to avoid legal uncertainty, including in relation to citizenship.

 

The second concern relates to the semi-automated application process that the settled status scheme has pioneered, based on algorithmic data processing. The identity verification part of the scheme relies on the use of smart phones and the chips in e-passports. The residence verification part of the application process relies primarily on “automatic checks” of DWP and HMRC data. In some ways, the light-touch process is to be welcomed, given the ease with which many people have thereby been able to secure their legal immigration status. 

 

However, the key question is whether people are receiving the correct immigration status in accordance with the law based on these automated checks. As of 31 May, there had been 253 applications for administrative review of settled status decisions concerning the granting of pre-settled status, of which 231 Home Office decisions (91%) were overturned and settled status granted.

 

The latest figures from the Home Office are that 38% of the 1,524,500 settled status applications concluded up to 30 September 2019 have been granted pre-settled status. However, the statistics from the review applications suggest that there could be people who have been granted pre-settled status but were legally entitled to settled status.

 

Although applicants have the opportunity to upload supplementary documents to verify their residence, the review application figures suggest that applicants were not given sufficient information to understand the outcome of the automatic checks and how to demonstrate their residence. Despite reassurances from the then Home Secretary, Sajid Javid, in May about improvements to the application process, there are ongoing concerns that people are not receiving settled status when they are entitled to it, and since July the rate of pre-settled status being granted was 42-43% (up from 35% in May).  

 

It is to be expected that the kinds of digital processes used in the settled status scheme will be rolled out to other aspects of immigration in the UK, including citizenship. Accordingly, there is an opportunity not only to improve the settled status scheme, but also to learn lessons so that users can better understand and navigate such systems efficiently. It is also vital that these systems meet rule-of-law standards by providing certainty and properly implementing the law.

 

If unresolved, these issues may persist long into the future. Future governments could face difficulties in administering an immigration system with ongoing ambiguity between settled status and citizenship, especially given the significant numbers of people holding settled status who may want to become citizens. Similarly, government processes that rely on algorithmic data processing and digital technology risk improperly implementing the law unless they provide better information to users.

Swee Leng Harris is Head of Policy and Public Affairs at the Legal Education Foundation and a Visiting Senior Research Fellow at the Policy Institute, King's College London.