A change in status: EU nationals in the UK after Brexit


1 July 2021 has seen a change in immigration status for millions of EU nationals resident in the UK as the “Settled Status” takes effect. What faces those who have not applied and what can we learn from a digital-only system? What can be taken forward to the Conference on the Future of Europe?

Teaser Image Caption
London's Big Ben at midnight.

At midnight on 30 June 2021, a deadline fell. Many people lost their right to live in the country they have considered home, unless they had applied for (and got) permission to stay.

This is the situation in the UK for EU, EEA and Swiss nationals living there before midnight on 31 December 2020. It also applies to UK nationals living in some EU Member States, where other dates might apply. There is no uniform system for UK nationals across the EU. Fourteen countries have chosen what is called a declaratory scheme, where you cannot lose your right to reside, even if you now have to complete additional paperwork. Thirteen governments have followed the UK’s example and have chosen ‘constitutive’ systems, where you must apply for your post-Brexit status, risking to lose the rights you once had disappear if you do not make the deadline.

You can imagine how restrictive and destabilising this shift feels: from rights-holder to a seeker of permission.

Look at the numbers

There were 6 million applications in the UK, according to Home Office figures from 2 July 2021.

It is estimated that about 6% of this figure will be repeat applications, so this does not represent the number of individuals applying. This figure includes people who have lived in the UK for decades and also children, who must be individually registered. Those with five or more years of residence have “Settled Status”, which includes access to healthcare, welfare benefits and housing. That is about 52% of applicants.

A further 43% of applicants have been granted “Pre-Settled Status”. This covers those with less than five years residence and includes the right to work, healthcare and some welfare benefits, although there is an ongoing court case about other benefits.

There is also a backlog of half a million applications to be dealt with, and late applications may be granted, if there are ‘reasonable grounds’ for missing the deadline.

However, many organisations providing advice and support to EU, EEA and Swiss nationals are particularly concerned that there are still vulnerable groups and individuals that do not really know about the scheme or have found it difficult to apply online, so have not made an application at all. No one knows the real numbers as the UK has never had a registration scheme, but even if it is 1%, that is 50.000 people.

In EU countries with a constitutive system, almost all show significantly fewer applications from UK nationals than was expected, according to data of April 2021 from the Third Joint Report of the Specialised Committee on Citizens’ Rights, the EU-UK body responsible for the issue under the Withdrawal Agreement. This gap should be cause for concern and action.

Creating irregular migrants

By choosing a constitutive scheme, the UK has almost certainly created thousands of irregular migrants with no access to work, healthcare, housing or benefits – however long they have been in the UK – because they have not applied and therefore have no regular migration status. The UK Government has deliberately created a ‘hostile environment’ (as then-Home Secretary, Theresa May described it in 2012) for irregular migrants, including the aim of increasing deportation.

Some of those affected will be very vulnerable people such as children in local authority care or older people in care homes. Others may come from vulnerable groups – such as within the Roma community. There are specific groups of workers – in agriculture, for example – who have little contact with authorities or local communities and are already vulnerable to exploitation, who may not have applied. While some may have late applications granted under ‘reasonable grounds’, others will not.

Many within vulnerable groups have little access to online technology. The digital divide is well known. Therefore, while the online application has proved very straightforward for millions, others have had to make paper applications, often in situations where they have cases that are more complex. The UK Government has provided money to a number of civil society organisations to provide help. However, the Covid-19 pandemic and resulting restrictions have made that really difficult, and the UK Government has refused all requests to extend the deadline – increasing the risk of people failing to apply in time. The Home Office website and helpline were overwhelmed nearer the deadline. This was all very much predictable.

Thousands of people awaiting a decision do not have any proof of application as the system stopped issuing the temporary Certificates of Application. Evidence is mounting that some are being affected because they cannot prove their immigration status.

The problems of digital-only status

Even those with Settled or Pre-Settled Status are having problems. The UK Government decided that the only proof of status would be digital, despite all arguments for change. There is no physical document held by the individual: the Government ‘owns’ the only proof, something to guard against in the rush towards the digital age.

To work efficiently, the Home Office system needs to be running smoothly at all times. Data must be protected, up-to-date and never lost. Any third party (such as landlords or employers) needing to check someone’s status must work through a digital request, which requires the entry of time-bound codes. Not everyone is digitally competent or owns a smart-phone and the Home Office system is not perfect. People are already losing job offers, access to financial products and other services because of the digital-only system. These will be ongoing problems and should not be allowed to drop off the agenda.

In the UK, the Independent Monitoring Authority will be collecting evidence of systemic problems but, as usual, it will be hard-pressed, under-resourced, with civil society and non-governmental organisations tackling the casework.

“I lost my sense of belonging”. Elly, 77, Dutch in UK since 1967 #InLimboVoices

The psychological impact of these changes should not be forgotten. The vast majority of those affected are people who exercised their free movement rights as EU citizens. They feel themselves to be nationals of their country-of-origin, at home in their country of residence and, often, European. Brexit has forced many of them to make difficult choices, which have rocked that sense of belonging and made many question what it really means to be European, particularly when it appears that the EU will abandon you to national jurisdictions and not really fight to protect your European citizenship. These experiences are movingly described in the publications of the In Limbo group project, which brings together the personal experiences of those hit by Brexit.

The value and substance of European Citizenship is a subject due to be addressed at the Conference on the Future of Europe, a major process involving European citizens and all three key EU Institutions (European Parliament, EU Council and European Commission) ‘to debate on Europe’s challenges and priorities.’ During the discussions about how best to protect Citizens’ Rights under the Withdrawal Agreement and future arrangements, many were devastated to find that European citizenship could be lost to people who had used rights that it gave them – in particular, free movement.

In addition, that there was no mechanism to maintain that status as an EU citizen, so a European Citizens initiative on the issue was launched. That debate about what it really means to be ‘European’ must surely have an important place in any consideration about the Future of Europe. This should draw on the experiences of those who have used their free movement rights. They are some of the most passionate advocates you will hear from regarding what it feels like to be European. And they know what they have lost.