EU settlement scheme applications: Legal Update

While the UK did not leave the European Union (EU) at the end of March, it did see the rollout of the EU settlement scheme, the largest-scale documentation programme the UK has ever seen. The future of Brexit is uncertain but, as things currently stand, nearly four million European nationals and their family members will need to apply to the scheme to demonstrate their right to remain in the UK. Those that have been resident in the UK for five years should (subject to criminality checks) be granted "settled status", indefinite leave to remain. Those who cannot demonstrate five years' residence will be granted "pre-settled status" for five years, with the option to subsequently apply for settled status.

The scheme has been repeatedly presented by the government as "straightforward and streamlined" but a significant number of children and young people will struggle to apply. There are an estimated 727,000 EU-national children under the age of 18 living in the UK and an additional 239,000 UK-born children of EU-national parents. Particularly vulnerable are the estimated 5,000 EU children who are in local authority care, separated from their families.

One area of difficulty will be documentation. During a recent pilot of the scheme, for example, Coram Children's Legal Centre (CCLC) found that in a fifth of cases the child did not have the necessary documentation to demonstrate their nationality or their length of residence. For example - one looked-after child CCLC supported had a Portuguese father but due to a history of domestic violence it was not safe for him and his mother to be in contact with him. The child was unable to obtain a Portuguese passport because to do so required the active participation of both his parents in his nationality registration application.

New government guidance issued in April makes clear that local authorities in England, Scotland, Wales and health and social care trusts in Northern Ireland will need to identify eligible children, including those for whom the authority has parental responsibility, those where there are shared care arrangements and care-leavers. They will need to help those children and young people gather the necessary evidence and ensure the application is made.

POINTS FOR PRACTICE

• Local authorities will need to "identify all children and care leavers eligible for the scheme on [their] existing caseload and as they arrive".
• Where helping looked-after children and care leavers, social workers will need to ensure their support does not stray into that of giving "immigration advice" - more information on this can be found in Office of the Immigration Services Commissioner guidance.
• Until changes to legal aid are introduced, social workers can apply for exceptional case funding (legal aid outside of scope) on behalf of children and care leavers through the form on the Legal Aid Agency website.

Legal advice

The Office of the Immigration Services Commissioner has confirmed that where there is a care order in place the authority will be able to advise and act for the child without the need for such advice to be regulated by the commissioner or another regulator. However, the guidance does note that in more complex cases the authority "may wish to seek independent legal advice". During the pilot, more than half of cases dealt with by CCLC required detailed advice on immigration and nationality law that could only be provided by qualified legal professionals. For example, tens of thousands of EU-national children may also already be eligible for British citizenship but without legal advice will not know this. If looked-after children are completing settlement scheme applications without legal advice, they may not be fully aware of their options and this could result in an incorrect grant of pre-settled status, being refused outright or potentially missing another legal avenue available to them, such as applying for British citizenship.

What the new guidance does not outline is that in July 2018 the Ministry of Justice announced the reintroduction of legal aid for separated children with immigration issues, including European-national children. Therefore, local authorities do not need to shoulder the financial burden of seeking legal advice and assistance for them.

Failure to apply before the deadline, which could be as early as December 2020, or failure to apply for settled status before the grant of pre-settled status ends, will leave people "undocumented", without status and unlawfully in the UK. This would leave them unable to work, unable open a bank account or drive a car and effectively barred from college, university and secondary healthcare. It is essential that local authorities take positive steps to identify European-national children in their care and assist them to access identity documents and expert legal advice if we are to avoid them falling through the gaps and finding themselves without legal status.

For more information, see Migrant Children's Project's fact sheets at www.childrenslegalcentre.com/resources/