Brexit and the EU Settlement Scheme

As if Appendix FM and its sinister siblings were not enough, soon free movement law will interact with the Immigration Rules in the form of Appendix EU so as to implement settled status for EU citizens and their family members. The tactic of using Appendix EU is dubious because, as Lord Hope memorably said in Odelola [2009] UKHL 25, “the status of the immigration rules is rather unusual.” The rules are not subordinate legislation. Instead, they are detailed statements by a minister on how the Crown intends to exercise its executive power to control immigration. Although the rules create legal rights, Parliament’s involvement is not required to change them. Permanent residence under Appendix EU will be conferred in digitalised form through a new streamlined system. Excited legal pundits have praised the ambitious new system because it does not require applicants to give up their passports and also stealthily synchronises and coordinates its activities with HMRC and DWP. Indeed, there are positive signs in the government’s intentions because, as a matter of domestic policy, the UK has decided that the main requirement for eligibility under the EU Settlement Scheme will be continuous residence in the UK.

Therefore those applying under the scheme will not be obliged to demonstrate that they satisfy all the requirements of free movement law, such as having held comprehensive sickness insurance or generally to prove the exercise of specific rights under EU law. However, another aspect of the situation is quite peculiar because Sajid Javid’s foreward in the Statement of Intent is misleading, perhaps deliberately so, because he claims that “securing the rights of citizens has always been our priority in negotiations with the European Union.” In truth, as is well known, the government has been using the 3.3 million EU nationals in the UK as bargaining chips to exert leverage over the EU27 and many questions remain unanswered. Simplicity, speedy service and user-friendliness are the supposed to be the hallmarks of the new system. The government is adamant that since the Home Office already issues seven million passports and three million visas each year, processing millions of further EU applications should be easily achievable and is well within its grasp. Assurances have also been provided that the efficient and futuristic system will minimise the burden on applicants to provide evidence of their residence. Overall, a streamlined process will take applicants through three simple stages involving (i) proof of identity, (ii) checks for serious criminality, and (iii) evidence of residence in the UK.

Costs of Applying

With the UK set to leave the EU on 29 March 2019, after a phased roll-out from late 2018, the scheme will be open fully by 30 March 2019. Applications will cost £65 and costs for children under 16 will be £32.5. However, existing holders of valid permanent residence will be able to swap for settled status free of charge. People considered to be “resident in the UK” will include those present in the UK before midnight on 31 December 2020.

Key Points

The new scheme will also extend to the wide variety of personal circumstances protected by the draft Withdrawal Agreement with the EU. Except where the UK is applying more favourable criteria, the Home Office has said that the terms of Appendix EU are supposed to be strictly in accordance with the terms agreed under the Withdrawal Agreement. It is the case that under the scheme:

• EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years will be eligible for “settled status”, enabling them to stay indefinitely.
• EU citizens and their family members who arrive by 31 December 2020, but will not yet have been continuously resident in the UK for five years, will be eligible for “pre-settled status”, enabling them to stay until they have reached the five-year threshold. They can then also apply for settled status.
• EU citizens and their family members with settled status or pre-settled status will have the same access as they currently do to healthcare, pensions and other benefits in the UK.
• Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will still be able to join an EU citizen resident in the UK after the end of the implementation period, where the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK. Future children are also protected.

The Home Office advises us that the above principles will enable EU citizens and their family members living in the UK to calmly continue their lives without fear of what the future holds. The authorities also stress that time is not of the essence. There is no need to hurry and EU citizens and their family members are assured that they will be able apply for their UK immigration status. No changes are scheduled to existing rights under EU law until 31 December 2020. The deadline for applications to the scheme for those resident in the UK by the end of 2020 will be 30 June 2021, or six months after the implementation period ends.

Magical Right or Digital Document?

Admittedly it is an imaginative use of technology to issue documents certifying permanent residence in digital form. However, an intriguing point is that since the idea of free movement is almost magical in nature there is no requirement to actually hold a document certifying permanent residence to be in possession of the rights conferred by the Citizens’ Directive (2004/38/EC). For example, the CJEU held in Wolzenburg (C-123/08, EU:C:2009:616) that a person can qualify for and possess permanent residence even if he did not hold the formal documentation mentioned in Chapter III of the Directive. The document does no more than certify that the individual has acquired permanent residence.

The document itself does not produce the effect of conferring any status on the individual and in Wolzenburg the CJEU confirmed at paras 50-51 that article 19 of the Directive does not require EU citizens who have acquired a right of permanent residence to hold a residence permit of indefinite duration, that there is no obligation to apply for permanent residence and the “document has only declaratory and probative force but does not give rise to any right.” The same point was made at para 120 by Advocate General Kokott in Teixeira (C-480/08, EU:C:2009:642).

In Dias (C-325/09, EU:C:2011:498), the CJEU held at para 49 that the declaratory character of residence permits means that those permits merely certify that a right already exists. It went on to hold at para 57 that periods of residence after 30 April 2006 take “effect from the actual moment at which they are completed.” The Directive creates rights rather than the documents issued by member states. But despite these legal principles, it appears that all EU citizens who wish to remain in the UK after Brexit will need to have their residence rights digitally confirmed in accordance with the procedure in article 17 of the Withdrawal Agreement. Under article 14(3) of the Withdrawal Agreement:

Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding five consecutive years.

Since legal status will be evidenced in digital form no physical document will be issued. Holders will control the sharing of their digital document with others. They will be able to continue to use their passport or national identity card as proof of their identity and nationality and, until the end of the implementation period, of their right to live and work in the UK. The digital status format has been tested in other immigration routes involving non-EU citizens to allow them to prove their right to work. The system will be monitored and the Home Office has stated that it will provide the right support to everyone using digital status. On the flipside, the system might become the target of ransomware attacks such as those which plagued the NHS last year.

Three Step Process

The scheme will be driven by a supposedly simple three-step process which will involve testing the core criteria of identity, eligibility and suitability and these traits will serve as a barometer for measuring the merits of individual applications.

(i) Identity

For identification purposes, applicants will have to verify their identity and nationality, generally through their passport, or (for EU citizens) their national identity card or (for non-EU citizens) a biometric residence card or biometric residence permit. The Home Office stresses that checking identity documents is crucial to minimising fraud and abuse. But the government also recognises that being without an identity document for a significant period can create hardship. Thus, the online application process will be designed for remote confirmation through an app (which may throw up issues of compatibility). Cases that are unsuitable for the online verification process will have to provide documents through the post.

(ii) Eligibility

As regards eligibility, it will need to be established that the applicant is resident in the UK and, if appropriate, is a family member of an eligible EU citizen. In order to minimise documentation, automatic channels will be opened with HMRC and DWP to confirm continuous residence in the UK and whether it amounts to the five years needed to achieve settlement. Applicants will be able to upload additional evidence to bridge any gaps in residence or in cases where no government data exists. Those with less than five years residence will be eligible for pre-settled status or “limited leave to remain for five years”.

(iii) Criminality

In relation to suitability and criminality, the Home Office acknowledges that most EU citizens are honest people but the government wants to expel those who are serious or persistent criminals or pose a security threat to the UK’s people and society. Therefore, robust checks will be conducted against UK criminality and security databases and overseas criminal records checks will also be conducted as appropriate. Indeed, as the immigration minister Caroline Nokes had recently explained: “all applicants aged 10 or over will be checked against the UK’s national police database and watch lists.

Many EU citizens with very serious convictions will have won hard deportation battles because of the distinct nature of the test for deportation in EU law. Since the hostility embedded in the immigration system deliberately pits official decision-making against applicants, people with serious criminal convictions who have won lengthy deportation battles might in the minds of vindictive caseworkers automatically fall foul of the second “simple” requirement. The fact that in 2017 the Home Office mistakenly sent out 100 deportation letters to EU nationals cannot inspire public confidence in its performance. Since the programming of the hostile environment is not so easy to reverse, it will probably be the case that people with criminal records who have reformed themselves will be victimised as a consequence of the scheme.

In any event, the criminality checks envisaged and proposed by the Home Office are disconnected from the requirements of article 28 of the Directive whose protection is a marked shift from previous EU legislation. The Directive makes it very plain that expulsion should be limited because it can seriously harm those exercising free movement rights. Accordingly, in order to expel permanently resident EU citizens or their family members the expelling member state must show serious grounds of public policy or public security. Moreover, imperative grounds of public policy or public security are needed to expel those who have resided in the host member state for the previous ten years. The CJEU’s views are pre-eminent in that regard and in Vomero (C-424/16, EU:C:2018:256, see here) the court decided that permanent residence is a mandatory prerequisite of eligibility for enhanced protection.

Moreover, the general principles laid down in article 27 of the Directive create a very distinct framework regarding the imposition of restrictions on the right to entry and the right of residence on grounds of public policy, public security or public health. Under the stringent system, measures taken on grounds of public policy and public security must comply with the principle or proportionality and must be based exclusively on the personal conduct of the person concerned. Importantly, previous criminal convictions cannot in themselves constitute grounds for taking such measures. Importantly, in relation to the magnitude of the threat posed, the personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention are unacceptable.

In Bouchereau (30/77, EU:C:1977:172), the court considered the principle that previous convictions do not in themselves constitute grounds for the imposition of the restrictions on free movement. The court interpreted the rule to mean that previous criminal convictions are relevant only insofar as the circumstances which give rise to them are evidence of personal conduct constituting a present threat to the requirements of public policy. In relation to the scheme, the current provisions of Chapter VI of the Directive will apply for crimes committed before Brexit.

Overall, departure from the existing hierarchy of protection conferred by the Directive after Brexit will come at the cost of the full exposure of EU citizens to automatic deportation under the UK Borders Act 2007 which only requires one conviction of 12 months’ imprisonment for a foreign criminal to be expelled. Equally, the deportation provisions in part 13 of the Immigration Rules are much less advantageous for appellants facing deportation because the legal tests are constructed around concepts such as “very compelling circumstances” and “very significant obstacles to integration”.

The future deportation regime for EU nationals will also fully expose them to Part 5A of the Nationality, Immigration and Asylum Act 2002 (as amended) which makes provision for public interest considerations under article 8 of the ECHR. Presently, the mechanics of Part 5A and the Immigration Rules do not apply directly to EU nationals notwithstanding the fact article 8 applies equally to everyone irrespective of nationality. However, for the moment, in the absence of a removal decision or a “one stop notice” under section 120 of the 2002 Act, EU nationals and their family members are unable to raise any article 8 arguments on appeal to the First-tier Tribunal because of the prohibition on jurisdiction in Amirteymour [2017] EWCA Civ 353.

Entry and Exit

EU citizens granted status under the scheme will be able to travel to and from the UK using a valid passport or (at least until 31 December 2025) or a valid national identity card. Non-EU citizen family members granted status under the scheme will be able to enter and exit the UK with a valid passport and they will not be subject to any visa requirement. Their re-entry to the UK will be facilitated by any biometric residence document issued to them under the scheme and provision will be made in due course for existing close family members to be able to join an EU citizen resident in the UK after the end of the implementation period on 31 December 2020.

Under the scheme, holders of pre-settled status or limited leave to remain for five years will need to maintain their continuous residence in the UK and, where relevant, their family relationship, so as to qualify for settled status, generally after five years in the UK. In keeping with the Withdrawal Agreement, such persons will continue to have the same entitlements as now to work, study and access public services and benefits, determined according to the same rules as now.

Evidential Flexibility

Documentary evidence of continuous residence in the UK is divided into preferred evidence and alternative evidence. The former consists of documents such as council tax bills, mortgage statements, tenancy agreements, yearly P60s, employment documents and so forth. The latter consists of documents such as payslips, invoices for work physically done in the UK, NHS appointment letters, domestic bills, tickets and other miscellaneous items. Photographs, testimonials and evidence in multimedia form are examples of unacceptable evidence.

The government has also intimated that it will help and work with applicants under the scheme so that they are able to avoid any errors or omissions that may affect decision-making. The Home Office said that officials will be able to engage with applicants and provide them with a reasonable opportunity to submit supplementary evidence or rectify any shortcomings where a simple omission has apparently taken place.

This may appear to be an extraordinary development but apart from being a part of the Withdrawal Agreement under article 17(1)(o)  the idea also resembles the so-called Evidential Flexibility Policy (EFP) operated in the Points-Based System (PBS). The Home Office states that this new type of evidential flexibility will apply to the new system “enabling caseworkers to exercise discretion in favour of the applicant where appropriate, to minimise administrative burdens”. The process is supposed to be user-friendly but anyone who is familiar with the PBS will know that first instance caseworkers and administrative reviewers never apply the principles behind the EFP. Indeed, life in this sphere looks rather bleak after Mudiyanselage [2018] EWCA Civ 65. EFP issues fall into a highly controversial and contested area of immigration law and decided authorities such as Mudiyanselage are highly suggestive that “evidential flexibility” is likely to complicate things for applicants under Appendix EU. Litigation is rife in this area and the Home Office bullishly defends any EFP challenges.

Rights Under CJEU Judgments

The settlement scheme takes note of some important cases which cannot be overlooked. These are discussed below in summary.

(i) Surinder Singh

The ruling in Surinder Singh (C-370/90, EU:C:1992:296) leads to a right of permanent residence under EU law and the Surinder Singh route is reflected in regulation 9 of the Immigration (European Economic Area) Regulations 2016. The concept of family reunion is not a right in itself and EU citizens derive the right from their citizenship rights. The underlying reasoning behind judgments such as Surinder Singh is that EU citizens may be deterred from exercising their rights of free movement if they are stopped from being accompanied by their family members upon return from the host member state. Inhibiting family reunion, which is vital to the EU citizen’s integration into the host society, is bound to paralyse free movement because a smart EU citizen would probably prefer to stay at home rather than taking the risk of leaving.

Singh himself was an Indian who lived in Germany with his British wife. The couple’s marriage broke down upon return to the UK. He was to be deported but he ultimately succeeded in his case. In that regard, the position is that non-EU citizen family members of British citizens who are lawfully resident in the UK by the end of the implementation period on 31 December 2020 will be eligible to apply for status under the scheme. The upshot is that a non-EU citizen would also qualify for settlement if he or she is married to a UK citizen, currently living in another member state, and returns to the UK within the deadline imposed by scheme. Moreover, regulation 9 of the 2016 Regulations also provides coverage to civil partnerships. (In Steinfeld and Keiden [2018] UKSC 32, the Supreme Court upheld the right of heterosexual couples to enter into civil partnerships.)

(ii) Ruiz Zambrano

The groundbreaking authority of Ruiz Zambrano (C-34/09, EU:C:2011:124), which gave rise to the articulation of the “substance of rights” test and produced the concept of a Zambrano carer, also features in the government’s new plans. Zambrano had two children who were Belgian citizens but could not remain on EU territory unless he was granted residence rights because he was a Colombian national. To that end, it is stated that a non-EU citizen who is the primary carer of a British citizen in the UK and also currently derives a right of residence from wider EU law will be provided for in the Immigration Rules. The current rights of Zambrano carers do not lead to a right of permanent residence under EU law and their future appears to be precarious. However, the Home Office says it will provide further details in due course on the new status available to Zambrano carers. A generous policy of granting settlement to Zambrano carers will also alleviate their suffering because they cannot presently access the full range of income-related benefits.

(iii) Other Cases

Other categories of persons who do not have a right under the Directive but enjoy a right of residence under wider EU law will have their residence rights protected by the Withdrawal Agreement in line with their current rights. These persons are classified as Chen carers and Ibrahim and Teixeira children or carers. Pursuant to the ruling in Zhu and Chen (C-200/02, EU:C:2004:639), a Chen carer is a primary carer of a self-sufficient EU citizen child or children in the UK. Under the decisions in Teixeira (C-480/08, EU:C:2010:83) and Ibrahim (C-310/08, EU:C:2010:80), an Ibrahim and Teixeira child is a child of a former EU citizen worker and is in education in the UK, and an Ibrahim and Teixeira carer is the primary carer of such a child. Included in the framework are also others who need a right of residence in the UK in order for a Chen or Ibrahim and Teixeira child to remain in the UK (e.g. other children of the primary carer).

Such persons may be EU citizens eligible to apply for status under the emerging scheme. The Home Office explains that otherwise provision will be made in the Immigration Rules for them to apply for leave to remain, consistent with the Withdrawal Agreement. Their current rights do not lead to a right of permanent residence under EU law, but the Home Office will provide further details in due course on the new status available to them.

Retained Rights of Residence

The Directive permits family members to retain their rights of residence after their relationship with an EU citizen resident in the UK ends. First, article 12 allows retention of the right of residence by family members in the event of death or departure of the EU citizen. Moreover, article 13 allows retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership. The concept of the termination of the marriage or civil partnership under the scheme turns on “the date on which the order finally terminating the marriage or civil partnership is made by a court”. As discussed earlier, this is so despite the concession in Baigazieva [2018] EWCA Civ 1088 that a decree absolute is not necessary and divorce proceedings only need to be commenced while the EU spouse is in the UK for the non-EU spouse to retain a right a residence.

The Home Office explains that non-EU family members will be able to rely on retained rights of residence as well as their earlier continuous residence as a family member of an EU citizen to establish their eligibility for settled status (indefinite leave to remain) after five years’ continuous residence in total, or for pre-settled status (five years’ limited leave to remain). The continuous residence in the UK needs to be commenced by 31 December 2020 in all cases.

Irish Citizens

Irish citizens enjoy rights of residence in the UK independently of the UK’s membership of the EU. They do not have to apply for status under the scheme but it is still open to them. Their non-British, non-Irish eligible family members may obtain status under the scheme without the Irish citizen doing so.

Comment

The Home Office has made great technological advancements in the manner in which immigration applications and administrative reviews are processed. For example, in-country administrative reviews are purely processed online and the system runs smoothly. Equally, applicants in certain categories (students for example) must submit online applications which, upon successful completion, allow them to immediately download their biometric letters. Where an applicant uses the postal service, this is a smart cost-cutting feature favouring the Home Office. It reduces stationary and postal costs and often also alleviates applicants’ anxieties because they enjoy the security of speedy biometric enrolment. So it is arguably more than just gimmickry and represents a positive trend which the EU Settlement Scheme ambitiously seeks to take to commanding new heights.

On the gloomier side, litigation under Appendix EU will probably flourish just as it has in all other categories of the Immigration Rules. It is hard indeed to take at face value the Home Office’s claim that the process is a silver bullet or that it will definitely be as easy as one, two, three. The bleakness presented by historical Home Office incompetence points to a future environment where – to invoke the Court of Appeal’s historic criticisms – the “impenetrable jungle” might grow ever more rapidly and “kaleidoscopic changes” may reign supreme. Common sense, rationality and predictability may vanish from the picture altogether. Rampant disorder may prevail because Home Office decision-makers have a tendency to unreasonably exceed their powers.

Question marks also hang over the free movement rights of UK citizens after Brexit. Dramatic increases have occurred in UK citizens acquiring passports of other member states. For example, British applications for Irish citizenship have increased almost twentyfold in the aftermath of the referendum which shows that UK citizens are well aware of the extreme degradation of their legal rights. Under the scheme EU nationals will be able to apply for UK citizenship in the usual way. Interestingly, the end of UK citizens’ right to EU citizenship after Brexit also calls into question the lofty proposition in Grzelczyk (C-184/99, EU:C:2001:458) that EU citizenship is somehow “destined to be the fundamental status of the nationals of the member states”.

The above discussion is only an initial excursion into Brexit’s impact on the future of EU immigration in the UK. Since the referendum was really a snap vote on immigration rather than the merits of leaving the EU, we will have to hang on tight and wait and see what the future holds. Because it will be very easy for the government of the day to change the content of Appendix EU, it is fair to say that those blindly applauding Sajid Javid and his department for the scheme resemble the characters in Alice in Wonderland. Ultimately, like the referendum result itself, history will best judge these developments. And in my view history will not look kindly on Appendix EU. Nor should it.