EU Settlement - apply now as problems could lie ahead

As a direct access immigration barrister having worked with a large number of EU cases since I started practising back in 1999 I have been particularly interested in how the government is proposing to deal with those. EU nationals lawfully (at present) in the UK post Brexit.

This has been a topic that has troubled many people, ie EU migration to the UK and it might be argued that the government's handling or mishandling of the countries that joined the EU in 2005 lies the root cause of why No won the Brexit referendum.

I remember before the 2005 accession countries joined that people warned that there would be a huge number of people coming to the UK from Eastern Europe and in particular Poland. Poland is of course important as it was and still is the country with the largest population of the countries that joined. 

People I recall were saying that the UK would be swamped and that there should be some system in place that restricted the ability of the new EU member states individuals ability to migrate as was the case with Bulgaria and Romania. 

However, the UK government said that it had carried out studies and if I recall it properly the figure was set at being some 13,000 people that would leave their homes in Poland and make the journey to the UK for a different life. 

I thought this figure a joke.

Reality has made the joke rather sour, I have read that some 500,000 people from Poland have at some stage made the UK their home, and indeed I have met many lovely people from Poland and it could be argued that the arrival of skilled workers prepared to work hard for a better life was and remains a good thing. 

However, there was a political backlash and many cries of people saying that the migrants were "stealing" British jobs and driving wages down. As to whether this is true or not I am not an economist but a mere lawyer and have no idea. I have met equally good British and Polish worker and equally useless ones from both countries. 

Anyway fast forward to 2016 and the referendum which did not go the way the government of the day planned, nor did the government hand around to deal with the consequences, well at least the PM did not at the time, and then we have had years of hard negotiation leading up to a successful withdrawal agreement and happy parting of the ways, er no. It did not happen like that and indeed as I write I am not sure of the exact details of the withdrawal agreement or where everyone will stand in the future, indeed there needs to be negotiations as to how we will trade with the EU in the future. Again this is outside my limited knowledge, other than I am aware that the current PM threw his DUP colleagues over the boat when declaring that there would be border down the Irish Sea having promised that this would not happen. Yet again I am no politician so cannot comment on the why's and why nots of what actually happened, other than to imagine that if I were a DUP politician who had helped prop up the previous conservative government I would be slightly less than happy.

But back to the purpose of this article, having realised that those living in the UK lawfully had rights and that those rights would continue the government have introduced a scheme whereby those EU migrants in the UK lawfully could apply for settled status.

The government puts the number of EU Migrants at around 3,500,000 and says that about 2,700,000 have applied under the scheme. What is worrying is that just over half have been given settled status (I suppose akin to ILR) and the rest will have to apply in the future (thus giving the government the opportunity to perhaps collect a fee - as at present the application process is free).

Firstly, as someone commented on my youtube channel and video on this topic which can be found at https://youtu.be/s8CzER3QAB4 said who knows whether there are 3,500,000 or 8,000,000 in the UK? I would guess it is more than 3,500.000 but probably under 8,000,000 but I am forced to guess as the government removed any form of counting in and out of the UK years ago. Indeed the figures as to how many people actually lived in the UK was formed by collating the information provided by individuals conducting the passenger surveys at airports, you might have seen them after passing through immigration, they would normally ask where you have come from and a couple of questions. This was until, I think it was another government body said that these figures and this method was not good.

So we dont really know who is in the UK, so the number of EU Migrants who have not applied under the scheme remains unknown. While Brexit is going to happen in 10 days time there is a period up to 30 June 2021 in which individuals can register.

But what of those who do not register?

There were fears that they would face deportation and the EU were not very happy with this.

The HO have responded and said that those people who do not register before 30 June 2021 but can provide "reasonable grounds" will be allowed to remain.

This causes alarm bells to ring in my head.

The reasons for this are as follows. It was open for the Home Office to have responded in a number of ways, they could have responded by stating that they would not time bar the period for those EU migrants entitled to be here to register, or they could have said that as long as there was a reason they could register, they could have extended the period by a year or more but no, the government has chosen and this has been echoed by the Minister the term "reasonable grounds".

As an immigration lawyer this causes concern, as the term is loose. There is no definition as to what amounts to "reasonable grounds". 

What also troubles me is that come 1 July 2021 with the UK out of the EU the UK government will be more or less free to make its own immigration laws not only paramount but unique so whereas today there exists essentially a parallel approach to immigration law, EU law and decisions being interpreted in favour of migrants while UK law is applied in line with government policy which is and has been to reduce migration, after the exit from the EU, UK law will apply.

The next question that arises is what will be the recourse to those who do not put forward "reasonable grounds" as per the HO understanding or policy on this issue? 

Will they be given a right of appeal? Hardly in my view given that the HO has sought to remove or restrict access to the Courts over the last 2 decades and more so in the last 10 years or so. I recall when the points based system began to bite and people who forgot to put documents in could appeal and have their appeal allowed. Very sensible you might think, as the individual plainly qualifies and a few allowed appeals will not stop the earth turning, however the HO acted by introducing s.85A of the Nationality, Immigration and Asylum Act 2002 which essentially restricted severely the ability to submit new evidence at appeal.

If this was not enough the HO then proceeded to strip appeals away from a large number of EC applications, progressively denying people the right to appeal, oddly in circumstances where a lot of EC appeals were being won. A cynic might think that if the appeals were being won this must mean that the decision making was poor and needed to be improved. However, one way of avoiding the damaging news of the government losing appeals is to do away with them.

Then we have had the introduction of the Administrative Review. Again this followed a trend of appeals being allowed. It was said that the HO would be able to correct errors - but again the AR process and its results did not mirror the percentage of allowed appeals. I believe it is in excess of 90% of ARs that are refused in circumstances where way more than 10% of appeals were allowed.

If the government decides that AR is the appropriate way of challenging a refusal to accept a "reasonable grounds" refusal then the only recourse will be judicial review. This will mean in effect in order to establish that you had reasonable grounds you will need to show that the HO's refusal to accept your reasonable grounds was irrational or perverse - arguably leading to a result that in order to succeed in overturning a reasonable grounds refusal there will need to be demonstration that the decision was actually perverse.

It is this that concerns me, the HO has alighted upon a form of words that really leaves the possibility of those migrants least capable of applying, the vulnerable or those who are not so au fait with the law of being caught by having to find "reasonable grounds" for showing why they did not apply. This could be hard especially as if I were seeking to defend a refusal the first thing I would point to is that the Applicant has had a long time to make a free application and that the scheme was well publicised.

I would therefore urge anyone who is an EU Migrant to make an application under the government's scheme in order to get their status regularised as soon as possible and at the very least before 30 June 2021.

If you or a family member have an immigration problem please do not hesitate to contact Paul Turner the Immigration Barrister at Imperium Chambers on 020 7242 3488 or [email protected] or at my site www.theimmigrationbarrister.co.uk.

Paul Turner is a highly regarded direct access immigration barrister licensed to provide legal advice and services to the public and is also licensed to litigate on your behalf, he also takes instructions from solicitors and as well as having over 20 years experience in this field of law is the head and founder of Imperium Chambers.