New "Settled Status" insidious wording could cause application rejections

[rooibos]

I've been carefully reading the new EU Settlement Scheme – EU citizens and their family members and I'm a bit worried that the Home Office has chosen to use a wording that, if strictly enforced, could render many applications invalid.

There are people like me who, according to the EEA rules, are to be considered permanent residents because have exercised Treaty rights for 5 years but then have left the country and re-entered within the 2 year time-frame.

The new Settled (unsettled I should say) Scheme does not mention, understandingly, Treaty Rights but mentions: "An applicant who has been continuously resident in the UK for 5 years" (page 11), but it doesn't appear to contemplate a previous period of residence, which might have been interrupted later.

In other words this new scheme seems way more restrictive than has been thought and sold for.

I know these are early days, but even in the best of interpretation this looks to me as a short sell of EU citizens rights.

Given the Home Office reputation for more or less unintentional blunders, I don't think this is a detail that should be underestimated.

[Richard W]

I've been carefully reading the new EU Settlement Scheme – EU citizens and their family members and I'm a bit worried that the Home Office has chosen to use a wording that, if strictly enforced, could render many applications invalid.

There are people like me who, according to the EEA rules, are to be considered permanent residents because have exercised Treaty rights for 5 years but then have left the country and re-entered within the 2 year time-frame.

The new Settled (unsettled I should say) Scheme does not mention, understandingly, Treaty Rights but mentions: "An applicant who has been continuously resident in the UK for 5 years" (page 11), but it doesn't appear to contemplate a previous period of residence, which might have been interrupted later.

In other words this new scheme seems way more restrictive than has been thought and sold for.

Thanks for giving page numbers.

I'll make this personal for grammatical simplicity.

You have been continuously resident in the UK for 5 years - that is how you achieved permanent residence. Nothing says this period of 5 years has to include the present, and the next bit (still on p11) confirms that:

"since completing that 5 year period:" you "have not been absent from the UK for more than 5 consecutive years..."

If you had, you would have lost permanent residence - losing permanent residence takes only 2 years.

"...and none of the following events has occurred in respect of" you, "unless it has been set aside or no longer has effect"

I believe none of those events has happened to you.

Accordingly, you appear to meet the requirements for settled status, regardless of whether you have a DCPR.

[rooibos]

Thanks Richard, I want to share your optimism so much, but..

Grammatically speaking, "An applicant who has been continuously resident.." makes me logically think of an applicant who has just now achieved his status; otherwise the applicant "had been continuously resident...".

I know this will be an automated check, so the wording might or might not translate into what the software will do, but I start thinking I should probably apply for a DCPR now rather than wait for the Settled Status.

Are applications for DCPR still open? I don't see any more threads about it.

[Richard W]

Thanks Richard, I want to share your optimism so much, but..

Grammatically speaking, "An applicant who has been continuously resident.." makes me logically think of an applicant who has just now achieved his status; otherwise the applicant "had been continuously resident...".

I know this will be an automated check, so the wording might or might not translate into what the software will do, but I start thinking I should probably apply for a DCPR now rather than wait for the Settled Status.

Are applications for DCPR still open? I don't see any more threads about it.

[Richard W]

Grammatically speaking, "An applicant who has been continuously resident.." makes me logically think of an applicant who has just now achieved his status; otherwise the applicant "had been continuously resident...".

I thought it would come down to a grammar lesson. In British English, the present perfect tense is used for past action or state that has an effect in the time referred to by the present tense. The application process is concerned with the applicant as he is now, not as he was at some time in the past. If the rule related to an applicant's history at some time in the past (e.g. the date of withdrawal), then the past perfect would be appropriate.

I know this will be an automated check, so the wording might or might not translate into what the software will do, but I start thinking I should probably apply for a DCPR now rather than wait for the Settled Status.

As I pointed out, the next bit goes on to say when that period has been invalidated by subsequent absence.

Are applications for DCPR still open? I don't see any more threads about it.

The UK is still part of the EU, and so Directive 2004/38/EC still applies. If there is a withdrawal agreement, I think they will remain open until the end of the transition period.

[rooibos]

Well, it turns out it's not just me who smells a rat in this guidance.

https://www.theguardian.com/politics/20 ... tus-scheme

Concerns raised over 59-page handbook on Brexit 'settled status' scheme

Guidance for staff handling EU citizens’ applications lacks clarity, lawyers say

The Home Office has issued 59 pages of guidance notes to help staff register EU citizens for a post-Brexit scheme that the former home secretary Amber Rudd said would be as easy to apply for as an online account with the clothes retailer LK Bennett.

But case workers will have to read through to page 56 to discover that they should not apply the government’s hostile environment policy in their assessments.

When the government unveiled details of the “settled status” programme this summer, Rudd’s successor as home secretary, Sajid Javid, said the default position would be to grant rather than refuse applications.

But the government’s track record of errors in immigration enforcement and the lack of communication between the Home Office and applicants has raised concerns among lawyers who have read the guidance notes.

“If there is a presumption that people are going to get this then surely that should be spelled out in the guidance notes for the case workers,” said Luke Piper, a solicitor with South West Law, who is working with the campaign group the3million.

He added: “When it come to the context of the case worker processing applications, you have to think of their mindset and their approach. This guidance reads like any other Home Office guidance. It is not really giving clear scope to case workers. There has to be certainty and clarity on a seismic programme to register more than three million people if the Home Office is to deliver in such a short space of time.”

Colin Yeo, an immigration barrister and author of the Freedom of Movement blog, said: “The government is causing confusion by re-badging existing types of immigration status in order to make them sound more reassuring and comprehensible to EU citizens. But what is happening in reality is that EU citizens have to apply for and be granted the same form and type of immigration status as third-country nationals from outside the EU.”

[Richard W]

Well, it turns out it's not just me who smells a rat in this guidance.

https://www.theguardian.com/politics/20 ... tus-scheme

But case workers will have to read through to page 56 to discover that they should not apply the government’s hostile environment policy in their assessments.

But what does it say at the bottom of p10? (I'm not on the need-to-know list, so I don't know.)

More demonstrably, p56 is the start of Annex A, and is called up from pp29, 38, 41, 42 & 53. If reading the guide in the context of a case - which I think is how it is meant to be read - one will be directed there as soon as the evidence ceases to be excellent.