In its report published on 14th February 2018, the Home Affairs Select Committee (“the Committee”) gave its conclusions on the ability of the Home Office to deliver immigration services pre, during and post Brexit. The inquiry, to which the report relates, started with oral evidence in October 2017 and has since involved two further sessions of oral evidence as well as numerous written submissions from a wide range of interested parties including members of the public, immigration campaigning organisations, universities and immigration law specialists such as Magrath Sheldrick LLP. The final report can be viewed here.
The Committee concluded that the Home Office’s current preparations for the anticipated surge in applications from EEA nationals, and their family members, are insufficient, leading to concerns that the Home Office and UK Visas & Immigration (“UKVI”) will be unable to deliver the required changes on time.
The main concerns of the report stem from the substantially increased workload expected when around three million EEA nationals apply to register their status in the UK (whether for settled or temporary status). The evidence submitted to the inquiry indicates that staffing levels within UKVI are inadequate, resulting in poor decision-making and straightforward applications being decided outside of service standards. In acknowledging the “hard work” of UKVI staff, the Committee highlights the need to address the current failings within the system where “frontline staff are poorly supported and overworked”. Although the Immigration Minister has outlined plans to recruit an additional 1,200 staff to meet the additional “Brexit” demand, the actual number of recruits so far is disputed by campaign organisations and the Committee views the proposed adjustments as “moderate” compared to the “unprecedented scale” of applications facing UKVI in the coming 12-24 months.
The Committee makes several recommendations to address the staffing concerns and to streamline the workload of UKVI, including: removing the requirement for EEA nationals to have a Permanent Residence document before applying for British Citizenship; simplifying the Immigration Rules and application systems; removing the need for extension applications for some immigration routes; and ensuring that changes to the Immigration Rules, including incorporating the rules relating to EEA nationals, are made less frequently and with greater training for implementation.
It doubts the ability of the Home Office to deliver the promised “smooth process” for the registration of EEA nationals, which proposes to combine information-sharing across Government departments, such as HMRC, and to introduce more digital services, such as accepting scanned documents. Whilst these proposals are welcomed by the Committee, it cites previous implementation failures and a lack of information on how the registration system will work in practice as the main concerns.
The Government has stated it wishes to begin the registration process in or around September 2018, but no details on the system have yet been published. The Committee is heavily critical of the lack of clarity and recommends that the Government immediately publishes its plans in order to provide some certainty and reduce anxiety to businesses, employers and EU citizens.
In particular, the Committee draws attention in its report to a number of related issues which, so far, do not appear to have been considered by the Government and which it recommends are given clarity as a matter of priority:
- “The legal status of EU nationals who have not registered by the time the grace period is over;
- Whether the registration process and rights for EEA citizens will be identical to those of EU citizens and how their rights will be enforced;
- The legal status of EU nationals arriving after March 2019 who have not registered-including their entitlement to work and their ability to rent;
- Whether employers, landlords and banks will be expected to check registration documents for EU citizens in the way that they are required to check the immigration status of non-EU citizens;
- The status of EU citizens who have lived in the UK for more than five years but are temporarily not living in the UK in March 2019;
- The status of EU citizens who have lived in the UK for more than five years but have had an absence in another EU country for longer than 6 months;
- The rights of posted workers;
- Family reunion rights for future spouses of EU and UK citizens;
- The legal implications of applying for settled status prior to ratification of any Withdrawal Agreement and the UK leaving the EU (or during any transitional period when free movement rights continue to exist), and the consequences of any refusal of such an application; and
- The status of non-EEA nationals with rights derived from EU law including under Zambrano, Metock and Surinder Singh case law.”
Clearly, failure to address the above issues is a failure to acknowledge the complexities within EU citizens’ rights which consist not only of Treaty rights, Directive rights but also rights afforded through CJEU decision-making. Whilst many will fall into the “worker” category, many will not and those individuals will continue to have anxiety as a result of these points not being properly responded to.
In addition, the delay to the publication of the White Paper (a document setting out government policy prior to the publication of an Immigration Bill in 2018) is found to be “completely unacceptable”, risking insufficient time for Parliament to properly scrutinise and debate the plans before implementation. The framework for a post-Brexit immigration regime is as yet unclear.
The report also noted that the Government’s plans (so far) have been based on the first round of negotiations only (and as stated in the UK and EU’s joint report on progress made during phase 1 negotiations, published on 8th December 2017, “nothing is agreed until everything is agreed”), and recommends that contingency plans are urgently developed and published to allow for variations in the expected transitional arrangements and to manage a possible underestimation of the sheer volume of applications (specifically suggesting an extension of the grace period allowed for EU nationals to register).
The Committee also noted that it may not be appropriate to apply the “hostile environment” policy to EEA nationals. It questions how EEA nationals can be subject to checks from employers, landlords and banks whilst at the same time Prime Minister May provides assurances to the EU that its citizens are welcome to stay in the UK. It also draws attention to the absence of “any assessment of the effectiveness of the policy” and finds it concerning that it will apply to around three million more people “without any evidence that the policy is working fairly and effectively”.
The report from the Committee is fairly damning in a number of key areas for the Home Office and UKVI, however it acknowledges the hard work of its staff and the enormity of the task ahead. What is clear from its conclusions and comments is that we will witness to one of the largest registrations of individuals ever seen in the UK. To expect the process to be completely without fault may be unrealistic. The challenge is not, therefore, to produce a perfect system but to produce one which has as few areas of uncertainty as possible.