The high court has rejected a legal bid for an extension to the EU settlement scheme (EUSS), dismissing campaigners’ concerns that those EU residents who fail to apply to remain in the UK before July could face “devastating” consequences, similar to those experienced by the Windrush generation.
Legal action mounted by the Joint Council for the Welfare of Immigrants called for the Home Office to extend the deadline to ensure that those who miss the 30 June cut-off date do not become undocumented and liable to detention and removal.
“On 1 July 2021 anyone who has yet to apply, or apply successfully, will be left without immigration status and exposed to the consequences of the hostile environment; at risk of losing their jobs, homes, access to benefits, and healthcare, driving licences, detention, criminalisation and removal – a second Windrush, but on a much bigger scale,” Paul Bowen QC for the JCWI told the court.
During a permission hearing, lawyers for the JCWI said the home secretary had failed to collect enough data to ensure adequate action was being taken to encourage vulnerable groups to apply before the deadline.
“In the absence of that data she is pressing a policy outcome which is highly likely to have severe discriminatory consequences: she is driving blind towards the cliff-edge,” Bowen said.
Some groups of people are thought to be less likely to have applied for EUSS by the June deadline – particularly older EU residents, children, physically or mentally disabled individuals, women in relationships involving domestic abuse or Roma people, the court heard.
However, rejecting the request for a judicial review, Justice Nathalie Lieven said it was the nature of all application schemes that there needed to be a deadline, and noted the Home Office’s argument that there would be a period of grace for those people who could show that they had reasonable grounds for making a late application. The details of how long that period will last, and how the exemptions will be implemented, have yet to be published.
By the end of December 2020 4.9 million applications to the scheme had been received, and 4.6 million people had been granted permission to remain in the UK; 54% of them were granted permanent status, and 43% were given the more temporary pre-settled status.
The JCWI acknowledged that the vast majority of applicants have experienced little difficulty, but said some groups were likely to find the process more challenging, and are more likely to see their applications fail.
The charity accepted that the Home Office had taken some steps to avert the discriminatory consequences of the policy, but stated that without attempting to get more data to establish how many people are struggling to apply, there is “no way of knowing whether those steps are adequate”.
The Home Office has acknowledged that certain groups will find it more difficult, such as women in controlling or coercive relationships, children and those who lack the physical or mental capacity to apply, but David Blundell QC, acting for the department, said that steps had been taken to encourage applications from those groups.
Satbir Singh, the chief executive of the JCWI, said: “We are deeply disappointed at today’s decision. The fact remains that in June, tens of thousands of EU citizens are at risk of falling through the gaps and being made undocumented. They will then be subject to the same hostile environment which has already ruined the lives of countless people, including the Windrush generation.
“Boris Johnson and Priti Patel promised that all EU citizens would get an automatic right to stay in the UK. Not only have they broken that promise, they have created a scheme which discriminates against older people, disabled people, looked-after children and many others. The government must do the right thing and lift the June deadline.”
A Home Office spokesperson said: “There have been 4.6 million grants of status under the EU Settlement Scheme already, securing people’s rights in UK law. The scheme is simple and straightforward, with a wide range of support available online, over the phone and in person for those who have questions or need help applying. We continue to work closely with employers, local authorities and charities to raise awareness of the scheme and we continue to encourage EU citizens to apply.”