In the first part of this blog, Stijn Smismans explained why the government’s EU Settlement Scheme will lead to Windrush type scenarios and how a declaratory registration scheme can overcome that problem. In part two, he first sets out what an effective declaratory registration system will look like. He then identifies what is probably the best legislative vehicle to introduce this system.
A declaratory EU settlement scheme should take the declaratory principle as a starting point. EU citizens and their families in the UK acquire settled or pre-settled status automatically by complying with the eligibility requirements, namely being an EU citizen residing in the UK (more than five years for settled status, less than five for pre-settled status) and not falling under any of the criminality grounds that would justify exclusion from entitlement. Registration provides them with a means to prove that status. This implies there is no particular deadline that makes them illegal, and registration is always possible at a later date.
A “soft deadline” and incentives to register
A declaratory system does not imply that there are no ‘deadlines’ or ‘cut-offs’ that would trigger negative consequences in the absence of registration, and that citizens have no incentive to register. First of all, the date on which the UK leaves the EU, or the end of the transition period in the case of an agreement, will be a natural ‘trigger point’ in any case. Even if one does not introduce by law requirements of proof of registration in order to exercise entitlements, private or public actors might be inclined to ask for it, or erroneously require it, since they will be faced with both EU citizens who were already in the UK and new arrivals who have different entitlements. So even under a fully declaratory system, EU citizens would soon feel under pressure to register.
Moreover, a declaratory system does not impede that after a certain date proof of registration may be required by certain types of private or public actors to access services. The type of actors that could ask for proof of registration and the conditions under which they can do so can either be set out in primary legislation, or could be delegated to the Secretary of State to be adopted via statutory instruments. The latter option is proposed here but such statutory instruments should be adopted via the so-called affirmative procedure so that Parliament can still retain some overview on an issue that will affect so profoundly the rights of people. Moreover, in order to protect citizens properly, two procedural safeguards are introduced, which are explained in the following section.
While the Secretary of State could be allowed to set out conditions in which certain private actors or public services are allowed to require proof of registration, primary legislation should provide the following safeguards:
- Public and private actors who are allowed to ask proof of registration should retain the discretion to waive the requirement and establish proof of entitlement otherwise. This means there is no absolute obligation on public or private actors to require proof of registration; it is at their discretion to consider whether compliance with the eligibility requirements can be established otherwise.
- When public or private persons who are allowed to do so by law do ask for proof of registration, and somebody has not registered by the registration due date, that person should be given the opportunity still to register. If that person has already an existing entitlement, such as already receiving benefits, or already holding a contract with a bank, these entitlements should not be interrupted for a reasonable period during which that person can register. For instance, one can provide in a three months period to start registration followed by an additional period during which the certificate of initiating the registration counts as basis for continuing entitlement.
A physical document as proof of registration
The government should provide a physical document of proof for who has applied successfully. Holders of all other types of immigration status do receive a physical document as proof. It is difficult to understand why 3 million EU citizens should be deprived of such an essential tool to prove their status in daily life.
Moving from pre-settled to settled status
In the EU Settlement Scheme, holders of pre-settled status will need to apply again once they are entitled to settled status. There is a big risk of a bottleneck with people failing settled status application now, being granted pre-settled status, and facing problems further down the line. In theory, their continued residence for five years will normally lead to settled status. However, some people are given pre-settled status not because they have been less than five years in the country but they failed to prove it. These people are likely to face similar problems when applying for settled status later on. There is a risk that all the more difficult cases will resurface within five years. Under the current EU Settlement Scheme, people then face a second ‘Windrush deadline’ since pre-settled status is granted for five years, which means those who have failed to register for settled status by the end of that period will become completely illegal residents overnight. At the same time, while efforts are now made to inform people to register, people with pre-settled status will be entitled to move to settled status at different moments in the future, when there will be no focused effort to inform people, and these are likely to be proportionally less informed people.
A declaratory registration can overcome much of these pitfalls. Firstly, the declaratory principle means that people acquire settled status automatically once they comply with the criteria. They thus do not become illegal if they have not registered for settled status by the five year expiry of their pre-settled status registration. They still need to be provided with a document certifying their settled status. Yet, absence of the document does not mean they are illegal, although its absence might create some problems when private actors or public services ask for it as proof.
Secondly, the registration system could be organised in such a way that the government could initiate itself the registration for settled status for those moving from pre-settled status to settled status. Such initiative is difficult for registration pre-Brexit since the government is not entirely aware of the full amount of EU citizens residing in the UK. However, once the system is running, the government has data of those who have registered for pre-settled status, and it knows when their five year expiry date is coming to an end, at which stage they will be entitled to settled status. Hence it can provide them with a settled status document automatically or where needed approach them for providing further evidence. Obviously, given that the system is declaratory, anybody who for some reason had still not registered for pre-settled status but complied with the criteria, can still register at any time. Equally, the current Scheme establishes that registered pre-settled status expires after five year. Those five years count from the moment of application. This means that people may comply with settled status criteria considerably prior to the end of the expiry date on their pre-settled status document. For instance, somebody was resident in the UK three years prior to Brexit, but registered for pre-settled status two months prior to Brexit. That person will only be contacted by the government for automatic registration of settled status five years after registering for pre-settled status, but under the declaratory scheme will already have acquired settled status two years after Brexit, at which stage she can register at her own initiative.
How it would work in practice: some examples
The proposed declaratory registration system does not alter the conditions of who is entitled to settled status or pre-settled status under the current EU Settlement Scheme. Neither does it change the current practice in relation to the mechanism and documents to be provided when registering. However, it takes away the cliff-edge scenario of the current scheme that turns people overnight in full illegality if they have not applied by the deadline. At the same time it provides some incentives for people to register sooner rather than later, while having in place safeguards to avoid people falling in full illegality or losing existing entitlements merely because not registering in time.
Let’s assume the registration due date is 30 June 2021, which is the promised end of grace period in case of a deal. Person A has been living in the UK since several decades. He is now retired and struggles with health issues. He did not register by 30th June 2021 as he was simply not aware of the requirement. Under the current constitutive scheme, on the 1st July 2021, he will be completely illegal in the country, and loses immediately his rights to, for instance, healthcare, or disability allowance.
Under the declaratory scheme, instead, person A is a holder of settled status by the mere fact that he complies with the criteria of being an EU citizen having more than five year of residence prior to Brexit. His lack of registration does not make him illegal. It could be open to the Secretary of State to introduce rules that administrations providing benefits can ask for proof of settled status. However, the law would provide that these administrations can also waive that requirement in favour of conducting their own assessment if someone has the status. The administration can easily establish that Person A has been in the country since a long time and decides to go on providing the disability allowance.
Person B started working in the UK two years prior to Brexit and failed to register by 30th June 2021. In the declaratory system, on 1st July 2021 person B does not become illegal. However, the Secretary of State may have introduced rules that allow employers and banks to ask for proof of registration. Person B applies for a new job but the employer asks them to provide proof of registration. B considers registering but two days later and before they start registration they hear the employer has already employed somebody else. Non-registration thus has a negative consequence for B, as the employer was entitled to ask proof of registration and was too impatient to wait for him to register. B soon finds another job offer, and the employer again asks whether they have registered pre-settled status. The employer though is satisfied B complies with the requirements of pre-settled status as they can show they were already resident prior to Brexit, although they have not registered. The employer is allowed by law to waive the registration requirement. B is happy they areemployed, but follows the wise advise of their new employer who suggested that it is probably not a bad idea to register to avoid problems in the future.
Person C, who is the wife of B and started working in the UK at the same time as him, equally did not register by the registration due date. Her bank now requires her to provide proof of registration. The bank is allowed to do so by the measures adopted by the Secretary of State, but given that she has already an existing contract with the bank, the proposed declaratory system would ensure that her bank account cannot be closed immediately on this basis. She has three months to start the registration process, and once she has received proof she has started the registration the bank needs to respect her current entitlements until the end of the registration process.
Hence, unlike what the government claims, a declaratory system does not lead to a new Windrush. It does provide incentives for people to register, which in the end is better for them and easier for administrations. A declaratory system, therefore, also requires that the government informs EU citizens properly about what consequences they may face if not registering by the registration due date. People will soon be documented, in a way that avoids Windrush situations. At the same time, it provides protection for those failing to register quickly avoiding that they fall into a status of full illegality. The current EU Settlement Scheme instead means those who fail to register face immediately all the dramatic consequences of the hostile environment. At the same time it is remarkable that the government attacks the idea of a declaratory scheme for leaving people undocumented, while its own constitutive system does not even provide those who register with a physical document.
The legislative vehicle to introduce a declaratory registration system
The EU Settlement Scheme is set out in the Immigration Rules. Changes to the Immigration Rules could change the system from a constitutive to a declaratory one. However, this provides little safeguards, since these are rules of secondary legislation which could be easily revised. The appropriate place to set out the rules for a declaratory system is in primary legislation. Moreover, as I have argued elsewhere, primary legislation is needed to define the rights of pre-settled and settled status and ensure they are not hollowed out over time.
This could be done in a new EU Settlement Bill. Alternatively, two legislative proposals under discussion can be used as vehicle. If finally a Withdrawal Agreement (or a separate citizens’ rights agreement) between the EU and the UK is adopted, the declaratory system can be set out in the implementation bill of that agreement. The Withdrawal Agreement does not provide details for a declaratory system as proposed here, but an implementation bill can surely be more detailed in its provisions as long as the WA is respected.
However, in the case of no deal, such an implementation bill is not available. Moreover, the government has already proposed the Immigration and Social Security Coordination (EU Withdrawal) Bill, which wipes out all the rights of EU citizens without providing any alternative regime other than delegating the issue to secondary legislation. As guarantees need to be set out in primary legislation before this Bill comes into force, the most appropriate solution would now be to introduce the declaratory system via amendments to this Bill.
This post represents the views of the author and not those of the Brexit blog, nor the LSE. The details of the full legislative proposal to introduce a declaratory registration system by way of amendments to the Immigration and Social Security (EU Withdrawal) Bill can be found in Stijn Smismans, Protecting EU Citizens in the UK from a Brexit ‘Windrush on Steroids’: A Legislative Proposal for a Declaratory Registration System, DCU Brexit Institute, Working Paper No. 8 of 2019.
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.
Stijn Smismans is Professor of EU law and Director of the Centre for European Law and Governance at Cardiff University.