EU Settlement Scheme Deadline: What are your responsibilities to your EU service users?

EU Settlement Scheme deadline: 30 June 2021

On 31^st January 2020, the UK withdrew from the European Union. The terms of the UK’s exit were heavily debated within the House of Commons and the European Union, but eventually the terms were agreed and codified within what is known as the Withdrawal Agreement.

This alert will consider EU citizens in the context of the European Settlement Scheme, where those individuals may be unable to make an application for themselves because of issues in connection with their ongoing care or treatment.

Who is this alert for?

This alert is for anyone in the health and social care sector, who provide services to EU citizens. This can include NHS Trusts, Local Authorities, CCGs and organisations in the independent sector.

We expect this article to be of particular benefit where individuals from the EU are in the care of the state and those individuals are unable to make an application to European Settlement Scheme themselves; for example due to a lack of capacity within the meaning of the Mental Capacity Act 2005.

Similarly, this alert will be of interest to care homes and independent mental health providers providing services to any residents or patients in their services who may not have settled status.

It will also apply equally to EU service users with capacity but has yet to engage to with the EUSS application process.

What happens with EU service users after Brexit?

When the UK left the European Union on 31^st January 2020, those EU citizens already in the UK were not immediately subject to any significant change. The Withdrawal Agreement sets out an ‘implementation period’ where the rights of EU citizens were preserved in the interim whilst the UK made suitable arrangements.

The ‘implementation period’ came to an end on 31^st December 2020. After the 31^st December 2020, the right to the freedom of movement for EU citizens based on their EU nationality alone, is no longer sufficient to remain in the UK, and, if they wish to remain, EU citizens are required to regularise their status in the UK. This regularisation process is done via an application to the European Settlement Scheme (“EUSS”).

The deadline for EUSS applications was originally 31^st December 2020 but this was further extended by the ‘Grace Period Regulations’, until 30^th June 2021; the time between the two dates is known as the ‘grace period’.

Those who fail to regularise their status before the expiry of the ‘grace period’ will be left without valid leave to remain in the UK.

Why is this important?

Individuals without valid and appropriate leave to remain in the UK will be subject to a set of legislative and administrative measures designed to make continued residence in the country challenging. These measures are collectively referred to as ‘the hostile environment’.

The ‘hostile environment’ places several restrictions on those without leave to remain. These can range from difficulties renting property to accessing care and support under the Care Act 2014. With regards to NHS treatment, some services can still be accessed, but most types of treatment will require payment upfront. Certain state bodies will have a legal obligation to report to the Home Office and share information accordingly.

An organisation is required to identify an individual’s status and act in accordance with their associated rights and entitlements.

A failure to do so may lead to:

• critical interruptions in service provision,
• service user complaints,
• Court proceedings (such as a Judicial Review and Court of Protection), and
• other wide ranging issues such as:
  • safeguarding in the context of immigration (modern slavery, female genital mutilation, and humanitarian and asylum concerns),
  • housing provision,
  • human rights concerns (Article 2, Article 3 and Article 8), and
  • compliance issues with regards to health and social care frameworks.

What can you do?

We would invite those reading this article to consider the immigration status of their EU service users ahead of the EUSS deadline on 30^th June 2021, particularly where that individual is incapacitated.

For organisations in the independent sector, please consider whether they have any residents or patients in their services who may not have settled status. If not, to start the relevant conversations with the individual and the commissioners, about whether they should remain in the service and who pays for their care.

Ultimately, the relevant organisation may need to make a number of critical decisions and undertake further work. Each action will be multi-factorial and will require a holistic consideration of the circumstances with regards to that individual.

How we can support your organisation?

We understand that this last year has been profoundly impacted by the COVID-19 pandemic. However despite these difficulties, there has been little leniency with the High Court recently refusing a judicial review request calling for an extension to the EUSS deadline.

The deadline to make a EUSS application on or before 30^th June 2021 therefore remains and the clock is ticking.

We hope this alert facilitates the necessary conversations ahead of the EUSS deadline on 30^th June 2021.

If you would like to discuss this topic in more detail, please contact Simon Lindsay, Jane Bennett or Eric Chan.