On 11 September 2023 the House of Lords is due to debate the report by the House of Lords European Affairs Committee ‘Citizens’ rights’ (23 July 2021).

The committee’s report considered the post-Brexit rights of EU citizens in the UK and of UK citizens in the EU. The government responded to the report and the committee’s recommendations in November 2021.

In December 2022 the high court made a ruling on a case concerning the UK’s settlement scheme for EU citizens living in the UK. On 25 May 2023 the then acting chair of the committee, Lord Wood of Anfield (Labour), wrote to the home secretary to ask for updated information on issues raised in the committee’s original report. The home secretary responded on 2 August 2023.

As some of the issues raised in the committee’s 2021 report have since been addressed, or the facts relating to them have changed, this briefing focuses on the committee’s recent follow-up work and the government response to that work.

1. Background: EU settlement scheme

The ‘EU settlement scheme’ (EUSS) is the government’s programme for processing the claims of EU citizens intending to access their rights under the UK-EU Withdrawal Agreement and the UK-EEA Separation Agreement (the European Economic Area, or EEA, comprises EU countries and Iceland, Liechtenstein and Norway). Provisions in these agreements preserve certain rights of EU/EEA citizens living in the UK and UK citizens living in the EU/EEA in areas such as residence, the right to work, and access to benefits and public services.

Eligible citizens can apply to the EUSS for ‘settled status’ if they have lived in the UK for five or more continuous years. If they have lived in the UK for fewer than five years but started their residence before 30 December 2020 they can apply for ‘pre-settled status’. If granted pre-settled status, under the original design of the scheme EU citizens would have had five years’ temporary leave to remain; after five years’ continuous residence they could apply for settled status. This process was modified following a December 2022 high court ruling (see section 3 for more details).

Once an application is deemed to be valid, the applicant is issued with a ‘certificate of application’. This can be used to prove a right to work, rent, claim certain benefits or use NHS services until the outcome of the application is decided.

The deadline for applications for pre-settled status for most applicants was 30 June 2021, though late applications are still permitted if the applicant has ‘reasonable grounds’ for missing the deadline. These include having a serious medical condition or being in an abusive or controlling relationship, among other things. The government has said it will look for reasons to grant late applications rather than to refuse them.

People who applied to the EUSS before the June 2021 deadline were automatically entitled to their Withdrawal Agreement rights while awaiting a decision on their application. The government confirmed in August 2021 that people who applied late to the EUSS and were awaiting a decision could also still exercise their rights under the Withdrawal Agreement.

The Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) was set up to ensure the Withdrawal Agreement was properly upheld in the UK in respect of citizens’ rights. It is an independent non-departmental public body.

2. Committee’s 2021 report

2.1 EU citizens in the UK

In its 2021 report the House of Lords European Affairs Committee raised several queries and made recommendations concerning the EUSS. These included that the government should:

  • clarify how long its “generous” approach to late applications would last
  • continue to reach out to vulnerable people who had missed the application deadline and provide funding for organisations helping people to apply to the scheme
  • address the lack of “legal safety net” for late applicants, beyond government assurances
  • introduce a non-digital option for the scheme, to reduce barriers for people unfamiliar with digital technology
  • use all avenues to remind holders of pre-settled status of their personal deadline for applying for settled status, in case contact details were no longer valid
  • launch a major communications and training campaign to ensure that all relevant public and private sector authorities, such as Border Force, welfare officers, landlords and employers, are aware of how EU citizens would prove their status

The committee also said it was concerned about whether proof an individual had made a valid application to the EUSS (a ‘certificate of application’) could be used to prove Withdrawal Agreement rights in practice before a decision was made.

2.2 UK citizens in the EU

The committee also made recommendations to the government concerning the rights of UK citizens in the EU. These included that the government should:

  • work with the EU Commission and EU member states to identify UK citizens who had missed application deadlines in their country of residence and support them to access their rights
  • extend its funding for third party organisations helping UK citizens access their rights under the Withdrawal Agreement through the ‘UK nationals support fund

2.3 Government response

The government responded to the committee’s report in November 2021.

Concerning its approach to late applications, the government again stated its policy of exercising “discretion in favour of the applicant where appropriate”. However, it also said that the more time that had elapsed since the deadline, the harder it would be for the applicant to satisfy the Home Office that there were reasonable grounds for not meeting the deadline.

In response to the committee’s concern that late applicants to the scheme might not be able to prove their status and access their rights, the government said it would amend relevant regulations to reflect that a certificate of application issued in response to a valid application made after 30 June 2021 was an accepted document demonstrating a right to work or to rent property. This was subsequently addressed by the Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc., Regulations 2022.

The government disagreed with the committee that EU citizens with settled or pre-settled status under the EUSS should have a physical document evidencing this. It highlighted that all successful applicants to the EUSS receive written notice of their immigration status, which they can use for reference, and that people can telephone the UK Visas and Immigration Resolution Centre, which can share their digital status on their behalf.

In response to the committee’s concern that many holders of pre-settled status could miss the deadline to apply for settled status, the government said it would send individual reminders and that applicants should update their contact details with the Home Office as soon as possible if they changed. It also highlighted that the reasons for allowing late applications for settled status were the same as those for pre-settled status. However, the December 2022 high court ruling means applicants will no longer have to make a second application (see more below).

Addressing the committee’s recommendations about UK citizens in the EU, the government said it would continue to engage with EU member states and the governance structures concerning citizens’ rights (the Specialised Committee on Citizens’ Rights, Specialised Committee on the Protocol on Gibraltar, UK-Swiss Joint Committee on Citizens’ Rights and UK-EEA EFTA [European Free Trade Association] Separation Agreement Joint Committee) to “ensure that the Withdrawal Agreement continues to be applied correctly”.

The government highlighted that it has supplemented communications and support provided for UK citizens by EU member states with a “multi-million-pound public information campaign” across 30 European countries. It stated it would not expand the ‘UK nationals support fund’, as recommended by the committee, in order to maintain value for money.

3. December 2022 high court ruling and changes to the EUSS

In December 2022 the high court made a ruling in a judicial review brought by the IMA against the Home Office. The court ruled that under the Withdrawal Agreement the UK can only require EU citizens to make one application in order to secure their Withdrawal Agreement rights. This means the EUSS’s requirement that EU citizens make a second application, to ‘upgrade’ from pre-settled to settled status, is contrary to the Withdrawal Agreement. The court also ruled that those granted pre-settled status are entitled to reside permanently in the UK once they have lived in the UK continuously for five years.

In February 2023 the government said it would work to implement the judgment as quickly as possible.

Changes to the immigration rules laid before Parliament on 17 July 2023 automatically extend pre-settled status by two years for those that have not yet applied for settled status. The government has also said it intends to take steps to automatically convert as many pre-settled status holders as possible to settled status once they are eligible for it, without them needing to make an application. It said that to accomplish this automated checks of pre-settled status would be conducted in 2024 to establish ongoing continuous residence in the UK.

Other changes to the EUSS announced on 17 July 2023 included changes to the way reasonable grounds for late applications are considered. Meeting the deadline for the application or having reasonable grounds for the delay in making an application is now a requirement for making a valid application. This means the government will consider whether there are reasonable grounds for a late application as a preliminary issue, before going on to consider whether a valid application meets the relevant eligibility and suitability requirements.

4. Follow-up work by the committee and government response

4.1 Implementation of high court judgment

On 25 May 2023 the then acting chair of the committee, Lord Wood of Anfield, wrote to the home secretary to ask for updated information relating to issues raised in the committee’s original report. In the letter, Lord Wood noted the government’s statement, given in a letter to the committee in April 2023, that even though it would implement the court’s judgment it encouraged people to apply for settled status “as the best way of evidencing permanent residence”. He said this could be contrary to the court’s decision that the Withdrawal Agreement requires a person to make only one application.

Home Secretary Suella Braverman responded to Lord Wood in August 2023. She reiterated that there would be “no loss of rights for pre-settled status holders” at the point at which that status would have been due to expire if they have not applied for settled status. She also said that the government still encouraged people with pre-settled status to apply for settled status as the best way of evidencing their right of permanent residence. The government argued that this was in line with the high court’s decision:

This is entirely consistent with the high court judgment, which acknowledged the value to the person of applying for settled status and thereby obtaining secure evidence of that status and made clear that the Home Office could still encourage such applications.

4.2 Applications refused between June 2021 and April 2022

Lord Wood asked the government questions relating to a delay in updating the online status for some people whose applications were refused between June 2021 and April 2022. These people received a letter telling them about the refusal decision. However, the online database continued to display their status as pending, rather than refused, until January 2023. Lord Wood referred to this as a “database error”.

The government said this had not been an error and was a necessary protection for citizens. It said the status continued to say ‘pending’ after a refusal to ensure the applicant’s rights were protected during an appeal or administrative review of the decision. The digital status is used by some government departments to inform decisions about access to benefits and services. Therefore, the government explained that the status needed to show ‘pending’ so that a person who had appealed or requested an administrative review could continue to have temporary protection of their rights (including access to benefits and services where eligible) while the review or appeal was ongoing. The government said this was necessary because before 19 April 2022 the digital status system did not have the capability to distinguish between an application that had not yet been decided and one in which an administrative review or appeal was ongoing. However, as the IMA highlights, the online database continued to display ‘pending’ for those in this cohort who had not appealed/requested an administrative review or who had exhausted their appeal/review rights, and who therefore did not have rights under the Withdrawal Agreement.

Systems were updated on 19 April 2022 so that refusal decisions made after that date were reflected in the applicant’s digital status once administrative review and appeal rights had been exhausted. In January 2023 the government updated the statuses of people whose applications were refused between June 2021 and April 2022.

According to the IMA, once an applicant has received a decision letter and has not appealed/requested a review or has exhausted their appeal rights, they do not continue to benefit from temporary rights under the Withdrawal Agreement. This means that people in this situation who received their refusal between June 2021 and April 2022 may have accessed benefits they were not entitled to during the period when their digital application status showed that it was pending.

Lord Wood asked the home secretary how many people were affected by this and whether they would have to repay benefits or make payment for healthcare received in that time as a result. Ms Braverman replied that 146,000 accounts were in this cohort, but that only a small proportion were expected to have wrongly claimed benefits or accessed public services in the relevant period. She said the Department for Work and Pensions would try to recover universal credit overpayments, as required by legislation, but would not try to recover overpayments for other impacted benefits. Concerning relevant NHS-funded healthcare (which excludes accident and emergency treatment and GP appointments), healthcare would have been payable from the time of the refusal decision and providers are required by law to recover charges. However, the government highlighted that if a person is destitute or without access to funds the provider can write off the payment.

4.3 Other issues relating to the EUSS

Responding to Lord Wood’s concern that funding to support people in making their applications to the EUSS might cease, the home secretary said the government would continue to provide grant funding until the end of the 2024/25 financial year.

The committee asked the government for clarification about the extent to which people with a pending application to the EUSS can access benefits and apply for documents such as a driving licence, a European health insurance card (EHIC) and a national insurance number. The government responded:

  • Those in scope of the Withdrawal Agreement who have a valid pending application to the EUSS can access benefits and apply for a national insurance number on the same terms as before the UK left the EU. When claiming income-based benefits people must provide evidence that they are exercising a qualifying ‘right to reside’.
  • On healthcare, people with a valid pending application have a right to a ‘provisional replacement certificate’ which offers the same healthcare entitlements as an EHIC card but allows the government not to provide coverage to people who are not entitled to it following a negative EUSS application outcome.
  • The equal treatment provisions of the Withdrawal Agreement do not extend to the issuing of driving licences. Therefore, individuals with a valid pending EUSS application are not able to use their certificate of application to obtain these.

Lord Wood also expressed concern about holders of pre-settled and settled status experiencing difficulties travelling between the EU and the UK. The government said there were several valid reasons why EU citizens might be asked additional questions at the UK border.

4.4 Residence schemes in EU member states

In his letter, Lord Wood noted that Sweden and Denmark had high refusal rates for UK citizens’ applications to their residence rights systems. It asked the government what representations it was making to EU states with high refusal rates.

The committee also noted that some EU countries required applicants to make a second application to “upgrade” their residence status, as the UK had before the high court’s ruling. In light of this, the committee asked the government for its assessment of the arrangements for UK citizens to upgrade to permanent residence in EU member states where this is required, and what support is available to help UK citizens negotiate this process. The committee asked the government to raise systemic issues relating to the rights of UK citizens under the Withdrawal Agreement with the European Commission as they arise.

The home secretary said the government was in regular discussions with the commission and member states about these issues. She said the government had worked with the commission and Danish authorities to resolve issues in that country, and that as a result Danish authorities had extended the deadline for UK nationals and their family members to apply for residence until 31 December 2023.

4.5 Travel

Lord Wood asked the government to work with the European Commission to make sure all border authorities were clear on rules of entry for UK citizens. He also asked what the government’s assessment of the possible implications of the proposed introduction of the Electronic Travel Information and Authorisation System (ETIAS) for UK citizens travelling to the EU could be.

The home secretary said the government had lobbied member states’ authorities to fulfil their obligations to ensure UK nationals could “travel without hindrance and prove their residence status swiftly”. She said the commission had told the government that UK nationals living in EU member states would not be adversely affected by the ETIAS.

4.6 Support for UK citizens

The committee expressed concern that resources to support UK citizens in the EU on citizens’ rights issues had fallen, including that the ‘UK nationals support fund’ had closed. It asked the government for information on resources available for embassies and non-governmental bodies to support UK citizens on rights issues and why it had reduced government funding.

The government said it monitored the implementation of citizens’ rights elements of the Withdrawal Agreement in EU member states, engaged with those countries and provided guidance on individual issues. It said that while some support had ceased, due to residency deadlines having passed, resources were still available to support UK citizens. These included the Justice and Home Affairs Network of attachés and consular services.

5. Read more

Cover image by Rocco Dipoppa on Unsplash.