Settlement Scheme risks repeat of Windrush Scandal – Home Affairs Committee warns

Problems affecting the EU Settlement Scheme and a lack of certainty over the future rights of EU citizens resident in the UK means the Government is risking a repeat of the Windrush Scandal, a report by the Home Affairs Committee has found.  

The Committee has serious concerns that the current design of the scheme means that EU citizens – many of whom have been legally resident in the UK for years and made this country their home – could be left in an uncertain situation regarding their rights and eligibility to remain in the UK, and that many EU citizens are at risk of being left out altogether.  

No EU citizens should be left without rights because they have not completed the Scheme in time but currently thousands of EU citizens risk being left in an insecure legal position after Brexit. The Government could easily give EU citizens certainty over their rights by setting out in legislation that all who were here legally at the time of Brexit would remain so.  

The Committee therefore calls on the Government to enshrine in law the rights of EU citizens in the UK and operate the EU Settlement Scheme only as a means for individuals to obtain proof of their status, rather than giving them a time-limited opportunity to guarantee their rights. This would ensure they are protected post-Brexit from the legal uncertainty faced by the Windrush generation. 

Failing to learn those lessons and getting the details of the Settlement Scheme wrong will run the risk of another Windrush scandal. 

The Committee recommends that: 

• EU citizens legally resident in the UK before Brexit should have their rights protected and entitlement to remain enshrined in law. 
• The Settlement Scheme should operate as a means for EU citizens to obtain formal, physical confirmation of their status, not just as a digital system. 
• The granting of legal rights and the Settlement Scheme should operate in the same way if the UK leaves the EU with or without a deal. 
• Improvements must be made to the application process which has been blighted by technical issues. 
• The Scheme must identify ways of supporting children and vulnerable individuals to apply. 
• The Government must clarify its intentions towards those who fail to apply. 

Home Affairs Committee Chair, Rt Hon Yvette Cooper MP said: 

“The Government’s current plans for the EU Settlement Scheme show they are not learning the lessons from the Windrush scandal. The problems faced by the Windrush generation showed how easily individuals can fall through gaps in the system through no fault of their own and how easily lives can be destroyed if the Government gets this wrong. 

“Too many people could be missed out under the current plans for the Settlement Scheme arrangements - including children or the elderly who have lived here many years. The Government should enshrine people’s rights in law so they are protected rather than putting them at risk from problems with the bureaucratic process. 

Member of the Home Affairs Committee, Stuart McDonald MP said: 

“Under the Government’s current plans too many people, including children and vulnerable individuals, risk falling through the gaps and not accessing the Scheme at all. Enshrining citizens’ rights in law, supporting applicants accessing the Scheme and addressing the technical issues facing applicants are all essential if EU citizens are to have faith that their rights will be protected in the future. People also need hard copy documents not just an unfamiliar digital system. 

“The warning signs are there, now the Government must take action.” 

Protecting rights

There should not be any uncertainty about the rights of EEA nationals who are resident in the UK at the time of its exit from the EU. The Government should guarantee in law that any EU citizens living in the UK before Brexit (and who would be eligible for status under the Settlement Scheme) are legal residents of the UK and are able to live and work as they have done until now.  

The Settlement Scheme should operate in addition to provide them with proof of their entitlement to remain. The EU Settlement Scheme should be a mechanism through which individuals are able to obtain documentary proof of their status, not a time-limited opportunity to guarantee their rights. 

People at risk of losing out

The Committee is very concerned by the fact that large numbers of EU citizens are at risk of being left out by the EU Settlement Scheme.  

The Government must improve public awareness and understanding of the EU Settlement Scheme, and of the importance of applying. Too many people are at risk of failing to apply, and this will have serious ramifications for their future in the UK. To mitigate the uncertainty in all circumstances, the Scheme should operate with the same timeframe, appeal rights and oversight whether the UK leaves the EU with a deal or not. 

The Government must also acknowledge the difficulties that will be experienced by many vulnerable groups when attempting to apply to the Settlement Scheme, and should therefore commit to undertake reasonable inquiries on behalf of applicants in instances where they are unable to prove eligibility or qualification due to circumstances beyond their control.  

The Government needs to be clear what the consequences will be for someone who is legally resident in the UK but does not register under the Scheme in time, and what their legal rights and status will be. They need to explain what will be considered reasonable grounds for late submission, and what the action the Home Office will take to prevent EU citizens who are legally resident being disadvantaged. This must take place prior to the closure of the Scheme.  

Learning from the Windrush Scandal

It is vital that the Home Office gets the detail of the settlement process right and learns from the mistakes made with regard to the Windrush generation. 

The Government’s plans for the EU Settlement Scheme have left considerable uncertainty about the status of EU citizens who fail to confirm their status before the deadline. The Government’s lack of clarity about whether those citizens would be here on a ‘lawful’ basis has not provided enough reassurance that those EU citizens who fail to apply would not be at risk of criminalisation or even deportation.  

The example of the Windrush Scandal made it clear that providing adequate documentation should be considered a vital part of any such status-giving process, whether declaratory or not. The Home Office should provide hard copy documentation and not just digital evidence of status so that there is no risk of misunderstanding or discrimination by employers or landlords. It is disappointing that the Government has not yet done so, given the concerns raised about the ‘digital-only’ system. 

Given the legacy of Windrush, the Home Office knows that it has much work to do to regain the trust and confidence of citizens when it comes to establishing and confirming their legal status in this country. 

The hardship and injustice experienced by some members of the Windrush generation has been shameful, and lessons must be learned to avoid similar consequences befalling EU citizens.