Whether the UK will get out of the EU with or without a deal, one thing is certain for EU citizens already residing in the UK; they will need to successfully apply for the ‘EU Settlement Scheme’ in order to be able to stay in the country and retain similar rights to what they hold now. However, there is increasing cross-party awareness that the current registration system set up by the government under the EU Settlement Scheme will lead to dramatic consequences, similar to what happened in the Windrush scandal, only on a considerably larger scale, writes Stijn Smismans (Cardiff University). 

In the Windrush scandal, immigrants from the Caribbean who had legally lived in the UK for decades were suddenly deported, refused re-entry in the UK, denied healthcare and benefits. As subjects of a former British colony these citizens had the right to reside indefinitely in the UK, but were never given papers to prove that status. After having resided legally for decades, enjoying the same rights as British citizens, they were suddenly asked to provide proof they had legally entered and permanently resided, as control on immigration was tightened under Homer Secretary Theresa May. As they were never given a particular document testifying their status, and were never asked to keep documents that might prove their entitlement, many were considered suddenly illegal and had to endure the most dramatic consequences of that. It is not difficult to imagine similar risks for EU citizens as they will move from a status under EU law, under which they only needed their national identity card or passport to have the right to reside and entitlements nearly identical to British citizens, to a new status they would achieve only after successfully applying for it.  After hearing the opinion of an expert panel in the House of Commons, Labour MP Yvette Cooper concluded that the EU Settlement Scheme will result in a ‘Windrush on steroids’.  Tory MP Alberto Costa similarly refers to a ‘Windrush writ large’.

To avoid a new Windrush, the current application scheme would need to be replaced with a declaratory registration system. The idea of a declaratory registration is gradually gaining more attention. Michael Gove, for instance, made it a pledge in his campaign for the Tory leadership. However, there remains much confusion about what declaratory registration means, not at least because the government and the Home Office have been claiming that not its EU Settlement Scheme but a declaratory registration system would end up in a Windrush 2. In part 1 of this blog, I will clarify why that claim is erroneous and why a declaratory system is indeed the only way forward to avoid another Windrush. In part 2, I will set out the key features of a legislative proposal for such a declaratory system.

Two main reasons why the EU Settlement Scheme means a new Windrush

The current EU Settlement Scheme allows EU citizens to obtain ‘settled status’ if they reside since at least five years in the UK prior to the cut-off date (which would be Brexit date in the case of no deal, or end of the transition period in the case of a deal), or ‘pre-settled status’ if residing for less than five years. However, to obtain that status they need to apply successfully prior to the application due date, which would be 31 December 2020 in case of a no deal, and 30 June 2021 in case there is a deal. This system is thus a constitutive system, namely, one only acquires settled status or pre-settled status by successfully applying. If your application was not successful, or you have not applied by the registration due date, you will not have acquired the status and you become illegal overnight. Absence of successful application immediately has the most dramatic consequences. Simply by remaining in the UK without successful application one commits a criminal offence, becoming liable to removal from the UK how ever long one has been in the country. Being entirely illegal in the country, one has no right to work, to rent, to free healthcare, to benefits etc. The consequences of such illegality will be immediately felt due to the so-called ‘hostile environment’ immigration policy which engages many public and private actors to establish those who have not the required papers and to enforce a policy that makes their life practically impossible.

In this context, the constitutive nature of the EU Settlement Scheme will lead to ‘Windrush situations’ on a massive scale since people might fail to re-enter the country after a visit to family abroad, be refused free health care treatment, miss job offers or be sacked, lose benefits, or ultimately get removed because failure to apply by the deadline would mean they have not acquired any status. Whatever the efforts undertaken to reach the more than 3 million EU citizens in the UK to register, even a minor percentage of them failing to do so will still lead to a high amount of people facing dramatic consequences; and it will be particularly those less informed and the weaker in society who will fail to apply in time.

The second key shortcoming of the EU Settlement Scheme is that even those who have successfully applied for (pre-)settled status do not receive any physical document proving that status. They only receive a digital code as proof of their application. Such a lack of physical document of proof will lead to numerous dramatic situations. Temporary system failure, full blown hacking of the system, or people forgetting their code, will cause people to get stranded abroad, or fail to board planes, or be unable to get access to services etc. Private actors inquiring about the legal status of EU citizens may not be able or not be inclined to check this status via electronic means. All other categories of immigration status do receive a physical document. It is unreasonable and unjustified to deprive holders of pre-settled and settled status of such a basic guarantee.

The difference between a constitutive and a declaratory system

To avoid another Windrush style scandal, the current EU Settlement Scheme needs to be turned into a declaratory registration scheme. It is important to clarify the difference between a constitutive application system, such as the EU Settlement Scheme, and a declaratory registration, as the concepts are often misunderstood.

In a constitutive scheme, the act of application is constitutive of acquiring the rights of residence. So, one might be residing since 20 years in the UK, and although the EU Settlement Scheme only requires five-year residence to acquire settled status, if one does not register by the deadline of the scheme, the status is not acquired and that person will be illegal on the territory. Under certain conditions, a constitutive scheme might still allow people to regularise their status after the deadline. The EU Settlement Scheme, for instance, allows people to regularise their status if there is ‘good reason’ that can justify the delay. Yet, proving ‘good reason’ comes with an extra evidentiary burden, the contours of which are still not exactly clear under the EU Settlement Scheme, but experience from other immigration areas suggests the benchmark for ‘good reason’ is high, requiring, for instance, that one is in hospital incapable of filling in the application form. This extra burden of proof will hit precisely those who most likely are in a more vulnerable position, which made them miss application by the deadline in the first place.

Moreover, late application in a constitutive system only makes one legally resident from the date of successful application. It does not change the illegal status in the period between the application deadline and the date of late application. This can have far-reaching consequences. A person who was hospitalised in that period, for instance, may receive a hefty bill from the NHS since she was not entitled to free healthcare. Equally, a person might have been sacked during that period as the hostile environment penalises employers employing illegal immigrants. A successful late application does not mean that that person was unlawfully sacked.

In a declaratory system, instead, people acquire settled status or pre-settled status automatically by complying with the eligibility requirements; i.e. minimum five-year residence for settled status, or less than five years for pre-settled status. Registration is simply a means of providing you with a document that proves this status. Absence of registration does not mean you are in the country illegally. The advantage of a declaratory system is that people who are entitled to the status do not become illegal overnight simply by not registering. Registration is just one way to prove their entitlement, and alternatives to prove that entitlement may be possible, or procedures are provided to still register beyond the deadline.

Deconstructing the misunderstandings about a declaratory system

The disadvantage of a full (voluntary) declaratory system is that people might not have strong incentives to register and administrations would potentially struggle with different assessment systems to establish whether somebody has (pre-)settled status or not. The EU’s system of registration for permanent residence, for instance, is declaratory. Few felt the need to register as holding a European ID and proof of habitual residence other than via a Permanent Residence card was generally sufficient to exercise rights.

However, once the UK has left the EU, it is important for EU citizens already residing in the UK to be able to prove their status, as EU citizens arriving after Brexit will not have the same rights. In order to allow those EU citizens already residing in the UK to prove their status easily in daily interactions with both private actors, such as banks or employers, and public services, they should be provided with a document certifying that status. Registration is to the benefit of those citizens, and the sooner they register the less likely they will face practical problems in daily life when asked to prove their special status. Moreover, it may be easier now to gather the proof of residence prior to Brexit in order to register rather than having to collect this evidence years down the line.

However, it is a misconception that a constitutive system is the only or most appropriate way to ensure effective registration. It is important to realise that a constitutive system and a full-blown voluntary declaratory system are the opposite extremes on a continuum. It is perfectly possible to create a declaratory system in which people still acquire (pre-)settled status automatically by complying with the eligibility requirements, even in absence of registration, but where, by a certain date, proof of registration becomes a requirement for the exercise of certain rights. The key difference with a constitutive system is that failure of registration does not imply that one becomes entirely illegal. Obviously, if proof of registration were to become extensively used as a requirement to exercise certain rights, the practical effect of such a system would be very close to a constitutive system.

Therefore, the importance is to design a system which provides a fair balance between, on the one hand, providing incentives so that people register, and on the other hand, providing protection so that people who comply with the eligibility requirements but fail to register do not become illegal overnight or are not suddenly deprived of all their existing entitlements. I will set out a proposal for such a balanced declaratory system in part 2 of this blog.

This post represents the views of the author and not those of the Brexit blog, nor the LSE. Reflections on the need for a declaratory system have been developed in the context of my volunteering work with the3million, the main association defending the rights of EU citizens in the UK. Particular thanks are due to Luke Piper and Monique Hawkins with whom I discussed these issues at length. Image created by the United Kingdom Government is in the public domain.

Stijn Smismans is Professor of EU law and Director of the Centre for European Law and Governance at Cardiff University. 

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