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About JCWI

JCWI was founded in 1967 to ensure that the rule of law and human rights were respected in the immigration system. We are the UK’s leading immigration charity covering all aspects of immigration, asylum, and nationality law. We operate a helpline for irregular migrants and have conducted extensive research into how migrants fall out of status, the conditions they face, and how immigration enforcement activity interacts with these issues.

Questions arising from the Immigration Enforcement Audit

We have repeatedly warned of the government’s failure to monitor the effects of the immigration system and immigration enforcement over the years, and we welcome many of the National Audit Office (NAO) findings and recommendations. It is absolutely essential to good governance that the Home Office unambiguously define what it is attempting to do, how it aims to achieve that, and put in place monitoring of both its progress toward achieving those goals and also of any likely unintended side effects of its policies. It has singularly failed so to do.

However, the NAO audit leaves unexamined certain base assumptions that go to the heart of whether the government’s immigration enforcement strategy, both within the Home Office, and through the cross-government creation of the Hostile Environment, is fit for purpose. If the Committee is to assess the effectiveness and value for money of public spending on immigration enforcement it must also consider:

1. The role the Home Office and the immigration system plays in creating irregular migrants (those who will become irregular as a result of the EU settlement scheme are a particularly pertinent example);
2. The absence of any suitable routes back into status for those who have fallen out of it;
3. The harms and costs incurred by immigration enforcement activity and mechanisms; and
4. Alternative mechanisms that may be more effective in dealing with any evidenced harms caused by the existence of the irregular migrant population.

Key Recommendations

We consider it untenable for the Home Office to continue to engage in immigration enforcement activity without:

• Setting out its ultimate goals and objectives, beyond ‘reducing’ the irregular migrant population. What are the end benefits to society that it seeks to achieve through its function. What evidence is there that the irregular migrant population impedes achievement of those ends?

• Conducting an evidence based analysis of what activities would most effectively achieve those ends, without any prior assumption that this should be an immigration enforcement function. For example, if there is an identified harm around migrants being exploited and paid less than the minimum wage, would decriminalising work and focussing on labour force inspections targeted at employers not employees be a more effective focus than immigration raids?

• Fearlessly examining its own policies and practices and welcoming independent scrutiny to assess the harm caused by its own activities in order to achieve a proper assessment of whether it is acting for the public benefit.

• Prioritising preventing people from becoming undocumented in the first place.

• Assigning a greater weight on helping those who have fallen out of status to regularise as a solution to reducing the irregular migrant population, instead of solely focussing on attempted removals – a strategy that has failed consistently for decades.

• Auditing its data and intelligence systems for quality, and putting in place effective monitoring to prevent the creation of discriminatory or otherwise misleading data and feedback loops.

• And particularly to consider the above issues in its implementation and monitoring of the EU settled status scheme.

The Home Office’s current strategy is failing. The reason for that failure is because immigration enforcement, denying applications, removing status from people, pursuing removals, are in danger of being treated as ends in themselves rather than as tools to be used only when they contribute to the public benefit and to be put away when they do more harm than good. It needs to fundamentally recalibrate its conceptions of what good and effective governance looks like within the immigration system. It must also take to heart the recommendations of the Windrush Lessons Learned review and numerous other independent reports. In particular, it must stop viewing international best practice, expert evidence and advice from NGOs, lawyers and migrants as being irrelevant or obstructive, but rather essential to its proper functioning.

The Home Office culture of disbelief and assumption of infallibility – the true lesson of late legal challenges to removals

A quick note to begin with. We were concerned to see the Home Office blame so-called spurious legal challenges for the increase in failed attempts to remove individuals. The collected lessons of 15 years of failure to improve asylum polices are resumed by Freedom From Torture in the ‘Lessons not Learned’ report. The report analyses 50 previous reports from 17 organisations including the United Nations, independent inspectorates, academics and NGOs contains damning evidence of a litany of systemic and legal failures in dealing with asylum claims. If immigration enforcement is concerned by the success of late stage immigration appeals, it should look to the culture of disbelief and poor decision making in its department and the cuts to legal aid that have decimated detainees’ access to early legal advice before blaming those attempting to safely navigate that broken system.

The role of the Home Office in creating irregular migrants

It is striking that in all its consideration of the irregular migrant population, and concern at its growth, the Home Office does not evaluate the extent to which it is responsible for people falling out of the system and becoming undocumented. Nor does it prioritise reducing such events.

Forcing people out of status

The majority of people in the UK without status are people who originally entered the country in a accordance with legal visa conditions in the first instance, and later fell foul of the system (for reasons illustrated below). This occurs within a system that is frequently punishing, inflexible and unreasonable. Among respondents to our own research in this area at JCWI, 85% of participants originally entered the UK legally. This reveals a systemic problem in the borders and immigration system, wherein it’s failings are the greatest contributor to the growth in the irregular migrant population.

The most common reasons that people lose status are because of weaknesses in the system, not a calculated desire to overstay. It is the lack of flexibility and realism within the system design that results in ordinary, law-abiding people falling foul of the terms of their visas. This was illustrated in the Windrush Lessons Learned Review. Reasons for losing status include high Home Office fees, inability to access legal advice following removal of legal aid from immigration, incorrect Home Office decision making, mental health breakdown, family breakdown, poverty, and particular moments of crisis, such as bereavement.

Home Office decision making continues to be extremely poor. Over half of immigration appeals are now successful. But of course most immigration decisions no longer carry a right of appeal. What this means is that more people than ever a wrongly denied status, with no route back except by making a fresh application, often out of time, and risking thousands of pounds of fees in doing so. The alternative route of a judicial review is often even more expensive and risky.

In our research we found almost 13% of people lost status die to mental health crisis. Take for example the case of A. At the time they need to renew visa, they were forced to take time off from studies on student visa because of a mental breakdown.

“I was hospitalised for 11 weeks. Being in a different country, different culture and the lack of social connection and network. My family and friends weren’t there for me and this made things difficult. Also, some colleges then were having trouble with the Home Office and their license to sponsor students was being taken away. Students on student visas lost the right to work. Previously to that I was working alongside my studies, I worked as a store assistant and then store supervisor for the company running a Burger King in Waterloo station. I was in charge of ordering in all the food that was sold in the eateries in that store. Before I used to be very outgoing, but I withdrew from people I became isolated. The cost implication of having to apply to the Home Office, the cost of paying a solicitor, being refused, going to appeal. All those things were getting at me. I think that pushed me to the edge and I had no control over what happened then. It was my wife who found me and called the ambulance. According to her, because I was blacked out and everything. It’s a difficult thing for people who are undocumented migrants because, people tend to exploit us. Maybe underpaying us. I fell into that category at one point because I just had to survive and take care of my kids. I was paid three pounds an hour, where it should have been more and it was not a good experience. I know other people who were in the same situation and they did the work and they didn’t get paid at all. People know that they can threaten them and say they’ll call immigration enforcement and they’ll face deportation.”

Around one in ten of those we spoke to suffered domestic violence which impacted them around the time of renewing leave and left them unable to do so, like JG, who remains undocumented and is a father hoping to take care of his children, who have British citizenship, but who were abused by their mother.

“My oldest son, when I got the chance to see them, sometimes, I could see that my daughter wanted to say something to me, but my son would tell her not to say anything. I didn’t know what was going on and it kept going on. Until my daughter told one of her school mates that she was being beaten at home, with wooden spoons and with a frying pan. I didn’t know it was happening. It was several months before I found out. Social services came in and took the kids from her and the investigation brought it in the police. So I got a call from Social Services and they asked me if I was their dad and that’s when I found out. It was terrible, I mean. I’m not even sure, I wasn’t sure I would manage to get to this stage. For some time I thought about giving up.”

Most of those we spoke to had been in the UK a long time and have developed ties that make it unreasonable for them to leave, and extremely difficult for immigration enforcement to effect their forced removal. In our research, 65% of respondents had been living in the UK for over 10 years (88% over 5 years). 74% have family in the UK. In many cases, this family may be children, including children born in the UK or it may be partners and other family members who are British or have a legal settled immigration status in the country. It is unreasonable and unachievable to envision removing or separating this many families. There is no viable solution to the issue of irregular migrants, that does not include new routes to regularisation.

No route back
However the current regime does not have any suitable routes. In reality at the moment the only credible option for most people without status in the UK is removal or continued undocumented stay. Regularisation has been placed so far out of reach as to be impossible to access in the majority of cases. It is evident that the easiest, least harmful and most efficient way to reduce the undocumented population would be to provide accessible routes back into regular status. These currently do not exist. The current system for regularisation is summarised in the table below:

Route	Challenges	Total cost per person
Asylum application	Need to prove real risk of persecution in country of origin, risk of detention, no serious criminal record.	None
Article 8/Family or personal life application	Very demanding conditions to prove eligibility, no serious criminal record. Usually NRPF.  +Further 10 years to ILR	£8,844  + potential legal fees*
20-year route	Must be able to prove 20 years’ continuous residence in the UK and close ties to the UK that would make removal to another country unreasonable, no serious criminal record. Usually NRPF.  +Further 10 years to ILR	£8,844  + potential legal fees
10-years from birth	Must have been born in the UK between Dec 1983-July 2006 and have lived in the country for the first 10 years, no serious criminal record.	£1,306
7-year route for children	Must be a minor and able to demonstrate 7 years continuous residence in the UK, must also be able to show it is in the best interests of the child to remain in the UK, no serious criminal record. Usually NRPF.  +Further 10 years to ILR	£7,111  +potential legal fees
Half-life route for 18-25 year-olds	Must be aged 18-25 and able to demonstrate continuous residence in the UK for at least half their life, no serious criminal record. Usually NRPF.  +Further 10 years to ILR	£7,111  +potential legal fees
Very significant obstacles	Must be able to demonstrate extremely high standard of difficulty in establishing a life outside of the UK. Not knowing anybody in country of origin, nor knowing the language is not sufficient. Usually NRPF.  +Further 10 years to ILR	£8,844  + potential legal fees

EU nationals

It is particularly important to consider how the construction of the EU settled status scheme, in the face of widespread expert concerns, as an application based one (ie. one in which those who fail to apply within the time limit lose their legal status in the UK) reinforces these issues. Please see the annex at the end of this document for evidence on the EU settlement scheme and its potential contribution to the irregular migrant population in the UK.

Is immigration enforcement the best tool to address any harm identified, and is it hurting more than it helps?

There are two simple points here:
     1.  The criminalisation of irregular migrants for undertaking employment vastly increases their risk of suffering exploitation, trafficking and modern slavery and causes the harm to them and to other workers that criminalisation purports to address.
     2.   The Home Office has failed to enforce labour rights infringements against those committing the infringements, but instead targets the victims of such crimes for immigration enforcement purposes.

Case Study 1

Anjay (a pseudonym) a recognised refugee was living undocumented in the UK for several years before he was able to get the legal representation he needed to be recognised by the Home Office. During this time, he worked in various key worker roles providing essential goods and services. He says that while he is now safe, he has many friends who continue to work in these exact conditions throughout the pandemic. Indeed, the crisis has made them all the more desperate to work, as their families are also facing increased financial hardship due to Covid-19 and need support.

“We were hired because we are not entitled to sick pay and we’re desperate to help and save our families. We have to work to make a living. Being a sensible, responsible and practical person – risking everything and tolerating all the exploitation is the only way to survival if you are classified as illegal or failed asylum seeker. “After the first months, the agents who had got me the job in the shop took my salary, consequently I was unable to pay the rent and was evicted from my accommodation. I was homeless, but I was working at the shop from 4am to 4pm. I would roam around until it was dark to sleep at the bus stop. “Eventually, I explained that I wasn’t seeing any of my salary and the shop owner’s wife gave me £20 every week from my salary. At this point I was fortunate when one Indian man offered me to a place above a restaurant to sleep. “However, I was told that I had to work as a cleaner to stay in that place. My cleaning shift was from 6pm to 2am every day. For about 9 months I survived like that. Food, you get to eat from the leftovers from the restaurant. Well, the more interesting bit was there were 21 or 22 people sleeping in the two-bedroom flat above the restaurant at that time. “I would spend £1 every day to buy 2-for-£1 boost to keep me going until I would get to eat at the restaurant. I came down with chickenpox that summer and everything crashed as I was forced to leave the restaurant and eventually the shop. Behold, back to the streets. “I got work in a petrol station, cleaning and filling cars. They promised to pay £100 per week for 7 days’ work 7-10 hours with food and accommodation. But after 2 months I had to run away from that place because I never got paid, I was restricted from getting more than one sandwich, one packet of crisps and one drink per day. “At the next job in a late-night shop one night there was a client who misbehaved, he attacked me and I got stabbed. I called the owner, but they told me to leave. They warned me never to go to hospital because he will be in trouble for employing me as I was illegal, and he warned me I would be sent back home if I go to hospital because the police will be involved."

Case Study 2

Tanvir* has been living in the UK since 2003. He had no understanding of the visas & immigration system and his travel was entirely arranged, through family, by an agent. He did not even know that he was headed to the UK and did not speak a word of English. He and his family were told Tanvir would be able to work and earn good money once here and send it back to the family to support them. He had no choice in coming and says that going back is in no way an option. Once here, the agent brought him to a 2-bedroom flat outside of Birmingham, where he and 9 other undocumented migrants were to live. In order to pay their rent, the agent told him he must work on a farm, where the agent had an arrangement with the farmer. He doesn’t know for sure if the farmer knew he was undocumented, but he had a deal going on with the agent and all the migrants in the flat had to work on that farm. It was hard work, picking vegetables and weeding. He was paid less than £3/hour (min wage in 2003 for an adult was £4.50/hour) but almost everything went directly to the agent to cover his rent and the rest was barely enough to buy food. Hours were irregular. There was no question of sick pay, health and safety training or equipment, or the possibility of isolating himself in the flat which was poorly maintained and severely over-crowded. Tanvir was not aware of the minimum labour standards that are required in this country, or even that he was not entitled to work and was being deliberately exploited, but he knew his situation was bad and that he would not be able to send any money back to his family. He didn’t know anybody or have any money or English or any way to escape, however, so he remained in that situation for 2 years. Finally, one of the other migrants who came to live in the house became his friend. He had been to Slough before and knew some people there and could rent a room. They thought they could make a better life for themselves if they went there, so one day the two of them left and Tanvir stayed with that friend in the room he was renting. Tanvir didn’t know that his friend, who was also undocumented, was not entitled to rent. He didn’t know what the arrangement was but was just grateful to get into a slightly less crowded living situation. There he found cash in hand work through that friend for a builder, who would bring him to the site. The builder would give him money every day that he worked, so he could save to give money to his family. It was hard physical work and if he got sick there was nothing for him, he had no security in the job, no sick leave provision, just cash in hand for the hours he worked. He still didn’t have any understanding that he could have a legal contract with rights for the work he was doing.

The Independent Chief Inspector of Borders and Immigration found in 2018 that the Home Office was failing to implement a coherent strategy to tackle labour market exploitation:

“3.14 Windrush has led to questions about whether sufficient safeguards were in place when IE identified individuals they believed to be migrants without the right to live and work in the UK. Certainly, stakeholders were clear with inspectors that they considered ICE teams to be ill equipped in terms of expertise, time and incentive to identify where an individual encountered working illegally was in fact a victim of modern slavery or some other form of exploitation, and the small sample of case records examined by inspectors tended to support this view. Inspectors also heard concerns that fear of falling foul of IE might encourage some employers to discriminate against individuals who found it difficult to evidence their right to work.”

The UK is an outlier in its approach to such issues. PICUM have singled the UK out as the only one of 15 European countries to criminalise undocumented workers for working:

“This runs contrary to fundamental rights, undermines labour standards, and represents a new level of state facilitation of the exploitation of migrant workers, including in the context of efforts to reduce modern slavery“

Thus the question is not whether immigration enforcement against illegal workers is effective on its own terms, but rather what benefit would it bring were it more effective? Would that benefit be better served by better labour market protections and workers’ rights for all migrants?

Is ‘intelligence’ intelligent? The quality of Home Office data, and the risks of racial profiling.

We take issue with the repeated reference by the Home Office to its reliance on ‘intelligence’ without consideration of what those data are in reality. For example, a large proportion of immigration enforcement visits occur following allegations made by members of the public of illegal working.The Chief Inspector finds that in 2018, the comments made in a 2015 inspection report are still pertinent:

“IE’s intelligence about illegal working mostly consisted of low-level allegations made by members of the public, which were lacking in detail and the reliability of which was difficult to assess. This had led IE to focus on high street restaurants and takeaways, which was self-reinforcing and limiting in terms of organisational knowledge and the nationalities encountered. Other business sectors and possibly other nationalities had been neglected by comparison.” (emphasis added)

Crucially, the use of such allegations as a primary source of intelligence about the undocumented population has significant consequences in terms of racial profiling. These consequences are not assessed or monitored by the Home Office. Members of the public have no insight into a persons immigration status. All they can observe are their physical characteristics, and in some instances their accent or level of English. Is a tip more or less likely to be called in about a Bangladeshi takeaway worker or a white Australian barista?

The Chief Inspector refers to ‘nationalities’. He does not examine whether or not certain ethnicities or races are overrepresented because he cannot interrogate those data. He cannot do so, because Immigration Enforcement does not collect data on race and ethnicity amongst those it targets. Thus the use of such allegations, combined with the failure to monitor protected characteristics creates a very dangerous feedback cycle. The Home Office claims that nationals of certain countries are ‘high risk’ and targets enforcement at them. But the data used to demonstrate that risk is tainted by the discrimination that produced it. As such enforcement resources continue to be targeted at certain nationalities, thus increasing the numbers of individuals of those nationalities caught, while completely ignoring others.

This targeting is highly racialised. The Chief Inspector notes that immigration enforcement activity is concentrated on targeting only a few nationalities:

“Bangladeshis, Indians, Pakistanis and Chinese made up almost two-thirds (63%) of all illegal working arrests. Whatever the logic of this approach from a removals perspective, the inference for other nationals working illegally, especially if they were not employed in restaurants and takeaways, was that the likelihood of being arrested for working illegally was low and the likelihood of removal was negligible.”

This is both unacceptable morally, but also self-evidently a deeply flawed approach to addressing the exploitation and harms caused by unscrupulous employers taking advantage of a vulnerable population.

A question of practicality as much as politics - Civitas: The Politics of Fantasy

At this stage it is important to note that while we certainly draw different conclusions from the analysis, the claim that immigration enforcement policy is misconceived and ineffective in its current state, is uncontroversial. A report by the thinktank Civitas written by a former Director General of Immigration Enforcement in the Home Office, and a speech writer for Theresa May, says this:

“If we are to arrive at a rational immigration policy, it must be based on recognition of what it is feasible – and what it is not feasible – to do to limit immigration. The present pretence by ministers that immigration can be significantly diminished by following variations on the policies that have been adopted in recent years generates expectations which cannot possibly be satisfied (quite apart from the incessant departures from the truth that the pretence requires).”

We disagree with much in that report. But we agree that current measures are built on fantastical promises, and policies and efforts designed to conceal the lack of evidence and critical thinking behind them. And it is worth noting that while the authors go on to consider the following a political impossibility, they recognise that the most effective way of reducing the irregular migrant population in the UK is by creating new and better routes to regularisation:[6]

“Rather than thinking in terms of a one-off amnesty, which involves the ‘regularisation’ of one group of illegal immigrants – those who happen to be in the country when the amnesty is declared – it would be more honest, and perhaps more just, to recognise that such an immigration policy should aim at the regularisation of all illegal immigrants. That is, it should aim at the ending of immigration controls altogether, because this alone will solve the problem of illegal migration once and for all. It will do it by the admittedly extreme expedient of making it impossible to be an illegal migrant. Many economists think that this would have economic benefits for the UK.”

We do not point to this report to imply that the authors would necessarily agree with us on the points made in this briefing, nor we with them. If one reads the report one would quickly perceive points of irreconcilable difference. What we do say, is that there is an honest starting point to any discussion about immigration enforcement wherever one sits on the political spectrum and there is fantasy.

The honest place to start is one that recognises that much of the alleged harm caused by ‘irregular migrants’ is actually caused by the processes that create and maintain irregularity in the first place and could be alleviated by better routes back into regular status and better protections for those who are irregular. Honesty recognises the absolute impossibility of removing the majority of the irregular population who not only have lives and families here, but who carry out essential work. We have seen during the pandemic that society relies on the work of irregular migrants in key roles, including as carers, farm workers, and others who keep our services and supply chains running. The harm stems from the protections we deny them, rather than from their work and their lives here. It is because they are unable to turn to us for help that they are underpaid and exploited and used to make profit by criminals. Immigration Enforcement as it currently stands, plays a key role in reinforcing their exploitation. It must be reformed.

Annex – EU Settlement Scheme

The creation of a population of irregular EU nationals

The Government chose to make the EU Settlement Scheme (EUSS) a ‘constitutive system’, whereby EU citizens and non-EU family members must apply by the deadline or fall out of status and rights. This will create a new population of undocumented migrants who will, after the cut-off point, become subject to immigration enforcement controls overnight. EU citizens and non-EU family members who have lived and worked in the UK legally for years will become be criminalised for working, renting accommodation or accessing healthcare and be vulnerable to hostile environment measures including detention and removal. Moreover, the Government has created ‘pre-settled status’, a temporary, insecure form of status given to EU citizens who cannot evidence more than five years residency. At the end of this five-year period, those with pre-settled status must demonstrate further evidence of residence. Many will have been granted temporary status because they are particularly vulnerable and unable to provide evidence or documentation for long-term residency in the UK, people who will likely face these same problems in five years' time. Through not creating the option for renewal of temporary status, the Home Secretary has created a cliff-edge scenario and an arbitrary barrier to individuals remaining regularised, rights-holding residents. Almost half of all applications to-date have been granted pre-settled status, meaning there is a separate population of people facing another cliff-edge and at risk of becoming undocumented within the next five years.

The Government does not know the size of the existing undocumented population in the UK. To compound this, it also does not know how many EU citizens and non-EU family members currently reside in the UK, and therefore will have no way of knowing how many people or what proportion of the EU population fall out of status after the 30th June next year. Whilst official figures estimate there to be 3.4 million EU residents, experts state this number does not include some eligible people (such as non-EU family members), is likely to undercount others, and conclude the true figure is likely to be much higher.  The design of the EUSS will simply increase the amount and level of unknown and untestable information about the irregular migrant population and will make it even harder to evaluate the impact of immigration enforcement policies. Imposing immigration enforcement measures on a new, unknown population will cost the Government a huge amount of money, resources and time, yet there will be no way for the Home Office to evidence that doing so is helping to achieve their aim of reducing the irregular migrant population. The Government should conduct an up-to-date, extensive study of how many EU citizens and non-EU family members are resident in the UK, in order to work out the size of the new undocumented population after the EUSS cut-off point. Without doing so, there is no way of knowing how many people will have failed to apply and become subject to immigration enforcement controls, no way of predicting the financial cost this will incur, and crucially, no way of demonstrating the impact or effectiveness of Home Office enforcement measures.

EU citizens and non-EU family members at risk of slipping through the cracks

There are various groups of EU citizens and non-EU family members at greatest risk of failing to apply to the EUSS by the deadline, who will make up the new population of migrants vulnerable to immigration enforcement measures after the EUSS cut-off point. The Migration Observatory divided groups at risk of failing to apply by the deadline into four categories: people who may not be aware they need to apply (children, very long-term residents, people who have “permanent residence” status and people who believe they are ineligible), vulnerable people / people with reduced autonomy (survivors of domestic violence, victims of work exploitation, people in insecure housing and destitution), people who will struggle using the digital application (such as older people, disabled people, people with no English and those with limited digital capacity) and finally people who will struggle to demonstrate residency (people without bank accounts, unemployed people, people without ID documents). 

There is clear evidence that it is vulnerable people who already face multiple disadvantages and socioeconomic inequality, who are also at greatest risk of slipping through the cracks in the EUSS. In a study looking at the EUSS experiences of children in care and care leavers in Manchester, the GMIAU found that none of the children they spoke to were able to make an application, due mainly to problems evidencing their residency and nationalities, despite the fact over half had lived in the UK for more than five years.  Further, in a study into Roma people and the EUSS, the Roma Support Group found that whilst the vast majority of people they spoke to knew about Brexit, they did not know how to apply to the EUSS, with only 3% able to submit an application completely independently. Roma people face disproportionate levels of illiteracy, limited digital capacity and insecure housing, which are all factors that could explain why they struggle with the EUSS.  Similarly, applications from older people (over 65s) are significantly lagging behind the working age population. In October 2019, Age UK found that only 16% of over 65s had applied to the EUSS, compared with 30% of working age EU citizens.  Older people face multiple barriers with the scheme caused mainly by limited digital capacity and greater social isolation, particularly for those in care homes, who are less likely to be reached by the Home Office’s EUSS communications or advertising. This is only going to be more intensified by the current COVID crisis and the fact many older people are in complete isolation or shielding.

Non-EU family members also face disadvantages and increased barriers with the scheme, whose cases are more complex and harder to reach. They are required to demonstrate their relationship to the EU family member as well as evidencing all other EUSS requirements, meaning that many who have experienced domestic violence and whose documents are possessed by their perpetrator, may be unable to apply and forced out of status. 33,092 EEA Family Permits were issued to non-EEA family members entering the UK in 2016 alone, with almost 283,000 issued between 2005-2016.   British Future, The Migration Observatory and HASC all identify non-EU family members as an “at risk group” who may not be aware that the scheme applies to them, or that it is mandatory.  Chris Desira from Seraphus Law shared this concern, reporting that after travelling to over 100 different UK locations and meeting dozens of communities, there was a ‘huge majority…especially for the non-EU dual citizens’ who have no idea that the scheme applies to them. Non-EU nationals also face a disproportionate burden of proof along with the “hidden costs” of the scheme.

The Government must do much more to ensure they understand the diverse barriers facing the various types of ‘at risk’ groups, in order to ensure these EU citizens and non-EU family members are not needlessly forced out of status and into immigration enforcement controls next year. The Government must conduct their own, extensive investigation and analyses into all the different groups people at risk of slipping through the cracks in the scheme along with tailored strategies outlining exactly how they intend to reach each of these groups. In addition, it should investigate the cost of imposing immigration enforcement controls on people from all identified sections of society, as well as estimations of the financial losses incurred if people from these groups are to become undocumented, forced out of work and onto the streets, or detention centres. It should not fall on third-sector organisations without adequate funding or resources to do this work.

In order to do this adequately, we urgently recommend that the  Government  begin monitoring protected characteristics of applicants with immediate effect, in order that the Home Office is able to demonstrate the actual effectiveness of the EUSS, instead of its assumed but untested ‘success’. Without this, they will have no certainty around which groups are and are not being reached and risk breaching their equalities duties. At present, the Home Office provides monthly statistics and more detailed quarterly statistics on the EUSS, which tell us how many applications have been made and concluded, the pre-settled to settled split, and break down results according to region, nationality and age group.  We welcome this information but know that the Home Office must do more to ensure that we are aware of and understanding all groups of people at risk of slipping through the cracks. The current statistics to not include gender, sex, ethnicity, disability or religion, yet these are all factors we are concerned have a direct impact on one’s ability and likelihood of applying to the EUSS. Further, without such monitoring and understanding of who the scheme is failing to reach, the Home Office will not be able to introduce necessary adjustments to the scheme in order to fix these problems.

Workers are not immune

Third-sector and parliamentary narratives about communities at risk of slipping through the cracks in the scheme have rightly focused on vulnerable EU citizens, but tend to neglect the fact that it is not just vulnerable EU citizens who are likely to fall out of status. We are strongly concerned that some working-age employed people are also at risk failing to apply by the deadline next year. We are concerned that EU and non-EU family member workers in sectors with high levels of BAME / migrant workers alongside poor working conditions, low pay and precarious employment conditions face additional barriers in the operation of the EUSS. JCWI found in a recent (currently unpublished) piece of research into EU Care Workers’ awareness and experiences of the EUSS that 17% of care workers we spoke to did not know or were not sure what the EUSS was, 1 in 3 did not know or were not sure when the EUSS deadline is, and 37% reported negative feelings or experiences around applying to the scheme. This is not a representative sample, but acts as a snapshot into the wider EU care worker population. Crucially, it highlights that it is not just people perceived as ‘vulnerable’ who face barriers which put them at risk of becoming subject to immigration enforcement next year. Further, these issues are unlikely to be unique to the care sector, and we are concerned could be seen in other sectors with similar working conditions such as construction, manufacture, cleaning and agriculture. EU workers in these sectors are the keyworkers currently pulling us through the COVID crisis. To keep in place an application system which will force migrants out of status and into the throws of immigration enforcement controls in the midst of this crisis is simply unacceptable.

The COVID pandemic has altered the way we see work and revealed that what we do matters far more than what we earn. Those described and viewed as “low-skilled” are now the “keyworkers” pulling us through this crisis and caring for our loved ones. Migrants are overrepresented in many key roles, particularly in the care sector where 5% of care workers are EU citizens and 7% are non-EU migrants, making up 12% of the workforce. Despite this, some stand to fall out of status and become subject to immigration enforcement controls if they do not apply to the EUSS by the deadline. Now more than ever, it is crucial that the Government conducts an analysis of the impact to the UK economy and keywork sectors if many of its EU workforce were unable to work overnight after the EUSS cut-off point. The Government should produce a detailed cost analysis of what factors (eg pay, working conditions, type of contract) make EU citizens “at risk” of slipping through the cracks in the scheme, which sectors are vulnerable to losing workers, and what impact this will have on the UK economy and ability of each of our keywork sectors to deliver their services.

What are the costs of failing to adopt a declaratory scheme?

Based on the risks outlined, the only long-term way to protect against a whole new population of EU citizens and non-EU family members becoming subject to immigration enforcement measures is for the Government to make the EUSS a ‘declaratory scheme’ whereby all eligible people are granted automatic settled status and can subsequently register for proof of status. In this scenario those who fail to register by the deadline will be temporarily without proof of status but will maintain their legal rights and protections and can register without becoming subject to immigration enforcement controls that criminalise them for living their daily lives. Germany has introduced a declaratory system for UK citizens resident there, and there is no reason the UK cannot do the same rather than risk tens of thousands more people becoming subject to immigration enforcement measures. By extension, the Government should scrap the temporary and insecure “pre-settled status” and grant all EU citizens and non-EU family members settled status as was promised by Boris Johnson and Priti Patel in the 2016 Leave Campaign, to avoid this new population of undocumented EU citizens and non-EU family members continuing to grow over the next five years.

So far, the Government has denied and challenged the risks campaigners have outlined associated with the design of the EUSS. If they are to call for a ‘constitutive scheme’, they should make transparent how they intend to make this effective and what the associated costs will be. JCWI urges the Government to provide estimated costings of imposing immigration enforcement measures (including detention and removal) on different scenario figures of EU citizens and non-EU family members who may not apply by the EU Settlement Scheme deadline for example tens of thousands, hundreds of thousands or even more. The Government should provide estimated losses – both financial and sector capacity - that will incur if X many EU citizens are unable to work, taking into account that a significant proportion of the keyworkers currently carrying us through the COVID crisis are EU citizens and non-EU family members.

The failure to provide physical documentation

The Government has denied EU citizens the right to physical documentation as proof of their status. All other migrants and British citizens can access physical documentation to prove their status and it is essential that EU citizens can do so too. It is unfair and irresponsible for the Government to use EU citizen as the testing ground for a future digital immigration system. Denying this right will require employers, landlords and public services to check EU citizens’ status using an online status checking system. Not only will this be costly, but we know it will lead to discrimination, which will create further immigration enforcement costs, so far not predicted, tested or budgeted by the Government. The Government should investigate whether there is any real financial saving and/or efficiency benefit to having a purely digital system and denying EU citizens access to physical documentation. Further, the Government must publish comprehensive information outlining exactly what the implications of creating an entirely new digital immigration system and online status checker are for immigration enforcement. This should make clear what this will cost, how many and what new resources are required, whether it will require additional employees and what the longer-term financial and practical implications are for landlords, employers and other public services.

What happens to EU citizens and non-EU family members who do not apply in time?

Since the Brexit vote, the Government has said that they want EU citizens to remain in the UK, and the Home Office has since stated that they will take a ‘flexible’ and ‘reasonable’ approach to EUSS applications and that anyone with a ‘good reason’ will be allowed to apply after the deadline.  Despite this, they have yet to define what they mean by a ‘good reason’, or which people will fit the bill for exceptions. Historically, the only people occasionally permitted to pass the Home Office’s incredibly high threshold for late applications were those physically stuck in hospital without any means of support, and we are concerned the same approach will be taken with the EU Settlement Scheme. Especially given that ex-Immigration Minister Brandon Lewis’s admittance that EU citizens who do not secure their status by the deadline will be subject to the immigration rules, including deportation. 

The Government is sending mixed messages, and it is crucial they set out exactly how they will decide who is eligible for late application, as this will determine to what extent immigration enforcement powers will need expanding after the cut-off point. We are concerned that the majority of people who fail to apply in time will not be deemed eligible for late application and will instead become subject to immigration enforcement, including detention and removal. The Government should provide clear guidance on how they will decide which EU citizens will and will not be eligible for late applications, what after-care and support they will provide for people who can submit late applications, and what the financial cost of this will be. Further, if ministers are being honest when they say they want all EU residents to remain in the UK, it is crucial that the Government ensure there are alternative routes to regularisation for those who inevitably fail to apply. The Government should provide an outline of what viable, affordable routes to regularisation will be available for these EU citizens and non-EU family members, and how these will be established, overseen and costed. 

We know that the Government intends to impose immigration controls on the vast majority of people who do not apply by the deadline. We are already seeing the ramping up of removals, deportations and Operation Nexus, an arrangement between the Home Office and police which aims to “crack down” on foreign national offending, but in reality has resulted in EU citizens without any crime convictions being deported, including survivors of trafficking.  We also know that the Home Office chartered a private plane to deport around 35 EU citizens to Poland on the 30th April 2020, in the midst of a national and global lockdown, where Government stay at home instructions stated that people should not fly unless absolutely essential. 

The Home Office should explain how it has applied immigration enforcement to EU citizens over the past year and a half whilst the EUSS has been in operation, and to ask the Government to publish exactly how they will use immigration enforcement powers against EU citizens and non-EU citizens who do not apply. This should be comprehensive, listing all the policies that make up the ‘hostile environment’, and include information on how many people the Government has capacity to subject to immigration enforcement control, which categories of person and nationalities they will prioritise for detention and removal, and an analysis of what this will cost. Without strict measures and transparency in place, we are strongly concerned that the Home Office will continue to take a haphazard, harsh and often life-ruining approach to immigration enforcement.