Defending EU & EEA citizen rights after deadline day: a draft proposal
On EU Settlement Scheme application deadline day, British Future have issued a statement about the risk of “the beginning of a new Windrush scandal”, and urging the government to allow further applications to be made by all those eligible.
For myself, I’d like there to be more than an appeal to the good nature of the government, whatever personal pledges have been made by Boris Johnson.
In my view, the best way to try to defend EU & EEA citizens who might otherwise fall foul of Windrush-style enforcement is by making the legal case for the Home Office to hand over powers to local authorities to:
a) determine whether applications after deadline have “reasonable grounds” for being late; and more expansively
b) make decisions on the applications themselves.
Local authorities are best placed to take these powers because of the existence of section 5A of the Sustainable Communities Act 2007, which “invites” them to seek new powers where those new powers are in the interests of the sustainable communities. The government has a legal duty to engage properly with such proposals for new powers.
While a local authority can only seek new powers for its own area, clearly the process can be coordinated (and has been) so that like-minded authorities make very similar applications.
What follows is my draft of one such proposal, made in the first instance to Robert Jenrick, though clearly copied to Home Office. I hope the draft will be taken seriously as a way forward for the defence of EU & EEA citizens rights, and that it can create a groundswell of localized support and local authority cooperation.
Sustainable Communities Act 2007: A Proposal relating to the impacts on communities of the withdrawal of the UK from the European Union
This is a Proposal made by xxxxxxx [Metropolitan]Borough/District/City Council in response to your invitation under section 5A(b) (subsequent invitations) of the above Act, as amended in 2010.
Whilst this proposal relates to the area of xxxxx, I am aware of similar proposals from other local authorities, and appreciate therefore that you may wish to make a decision on this proposal jointly with decisions on other such proposals, especially given the decentralization of resourcing required to implement the new powers sought.
1/ The Proposal
The proposal is in three parts.
First, the Council seeks a new power in line with the provisions of the Act, allowing it adjudicate on whether applicants applying to the governments’s European Union Settlement Scheme (EUSS) after the deadline for applications on June 30th 2021, have “reasonable grounds” for doing so, in relation to the broad criteria set out from pages 27 to 30 in the Home Office guidance EU Settlement Scheme: EU, Other EEA and Swiss Citizens and Their Families: Guidance to Home Office staff (version 12.0, May 21st 2021).
Under this new power, applications made after the EUSS deadline from people resident in or with connection to this local authority, would be lodged initially with the local authority, and a decision on “reasonable grounds” taken locally, in light of our better access to local data and information about the nature of and reasons for application being made after the deadline.
Second, and non-prejudicial to the first power sought above, the Council seeks a more extensive new power, in line with the provisions of the Act. This new power would allow the council effectively to confer ‘settled status” on citizens of the European Union (excluding Ireland), other European Economic Area countries and Switzerland who reside within the area administered by the Council, and who in the judgment of the Council meet the suitability requirements set out by the government in its document ‘EU Settlement Scheme: suitability requirements’ (Version 6, April 2021) and Immigration Rules Appendix EU EU: EU, other EEA and Swiss Citizens and family members (updated May 21st 2021)
Third, the Council seeks the award of a fair proportion of the resources saved by central government, through the transfer of the two powers above sought from the Home Office to this (and other) local authorities, such that it can carry out this new area of activity in alignment with its current administrative and service functions, but without detriment to them.
2/ Rationale for the proposal
In line with the guidance and accompanying issued by your Ministry Community Engagement and Brexit: guidance for local authorities (published March 18th 2019, but withdrawn December 31st 2020 and with no new guidance provided as indicated), this and other councils have had a duty to publicize and promote the Home Office procedures for the award (or refusal) of settled status, as well as a duty to ensure that applications are made on behalf of looked after children who are non-UK/Irish EU citizens.
In this context, and in the wider context of the guidance, under which councils are expected to work with government on the development of socially stronger, more confident and integrated communities by creating places that are better, safer and stronger”, it makes sense for a council such as ours to be given the new powers sought, such that the needs of EU, EEA and Swiss citizens residing within our boundaries be met at a more local level.
This is for two main reasons.
First, the council already holds data on many EU residents as a result of its normal electoral administrative, council tax and other services, and is thus in a position to verify the conditions of settled status quickly and efficiently, once residents seeking such status approach it in line with the publicity duty we already carry. The overall process, devolved in this way, will be much mmore efficient than the current system, which depends on the individual tracing and presenting personal details, some of which may be lost. Providing this council with a fair share of the resources expended centrally will create a more cost-effective service overall.
Second, while Ministry is entitled to state, in its guidance, that “The Home Office is making sure that the [settled status] scheme is accessible and capable of handling vulnerable applicants with flexibility and sensitivity”, our feedback to date from residents is that this is not how the scheme has been regarded; instead, some residents have associated the scheme with the so-called ‘hostile environment’, seeing it in the context of recent media coverage on seemingly irrational and insensitive immigration decisions. Whatever the truth behind these perceptions, this council feels it incumbent to seek to reduce the fears felt by EU, EEA and Swiss citizens still needing to go through the settled status process, and it is our own settled view that this is best done by a localization of the scheme, so that it can be run where need be with a ‘friendly face’, and in a way facilitated by the existing data held.
3/ Consultation
This proposal is rooted in the experiences and sentiments of EU residents who have, or will need to, go through the settled status scheme. These sentiments, especially fear of suddenly disrupted lives, have been reported directly to officers or through councillors in their day-tp-day engagement with constituents. We have also had contact with other councils in our region and beyond, where similar developments have been taking places, and council leaders and relevant portfolio holders have come to a collective view that the council has a duty, even as set out under your Ministry’s guidance, to respond in the manner we now do.
[Further evidence of local consultation on whether the new powers should be sought may be useful here.]
4/ Next Steps
I look forward to the publication of your decision and reasons in relation to this proposal as set out in the Regulations.
In light of the significance of the issue facing I hope that you will make an early response, so that the council can start to use any new powers conferred before any risk of ‘Windrush-style’ injustices become apparent , and so that EU and EEA citizens not yet able to meet the scheme’s conditions can, after what for many has been a very worrying period, relax in the knowledge that this Council is dealing with their case efficiently and with due sensitivity, and in a way which allows sustainable communities to flourish within our administrative boundaries.
Please note that the Council has determined that, in the event of a refusal on the part of the government to engage seriously with our proposals, it is most likely that a case will be made to the ‘selector’ (the Local Government Association at this time) for re-submission of the proposal, triggering the process set out at Regulation 6 of the Sustainable Communities Regulations 2012, whereby the government must, by law “try to reach agreement with the selector before making a decision as to whether or not to implement the submitted proposal, in whole or in part”.
Yours sincerely
xxxxxx
Leader of the Council
