photo: Anna helping a Glass Door guest (pre-COVID).

 8 Jan 2021

The impact of Brexit on immigration policy is far-reaching. Changes to immigration legislation will have immediate consequences for EU nationals in the UK who are at risk of homelessness and their access to homelessness services and other state support. 

In this guest blog, originally published by NACCOM, Anna Yassin, Glass Door's migrant project manager, outlines what these changes mean in practice.

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By Anna Yassin

In an ordinary year, Glass Door Homeless Charity provides a safe place to sleep for 175 people every night in our winter shelters. Current shelter operating principles published by the Government mean emergency shelters can safely offer only a fraction of the number of bed spaces usually available to people sleeping rough in the winter.

According to Housing Justice, there will be only 336 emergency shelter spaces available in London this year, versus 850 last winter.

At Glass Door we are fortunate to have the resources to adapt our model, and in November we opened two static mixed gender hostels in central London, accommodating 90 people. We know that many more people are in desperate need of shelter: we had to close our waiting list at 50 people on day three of registration, and we receive calls daily.

The challenges ahead

Now we are up and running our focus has turned to case-working our hostel guests, the majority of whom are EU nationals. Brexit and the accompanying changes to immigration legislation will have a significant impact on EU citizens living in the UK and those entering the UK from 1st January 2021.

We have consulted with immigration solicitors and welfare benefit specialists to understand the legislative changes and the intersections between both areas of law.

In the process of trying to interpret what the impact will be on the guests of our services, one benefits specialist we spoke to accurately described the changes as ‘messy’.

From 1 January the right to reside test will become more complicated. It will only be possible to satisfy the test if you are in a protected group. The protected group includes pre-settled status holders and those who have a right to reside on 31 December 2020.

For guests who have not yet applied to the EU Settlement Scheme (EUSS) and were not exercising their treaty rights before 31 December 2020, their status will become murky; they have until the end of the ‘grace period’ (between 1 January 2021 and 30 June 2021) to apply to the EUSS; but in the meantime they will be in a legal limbo, effectively without many rights in the UK, and subject to immigration control.

EU Settlement Scheme offers a lifeline

Our current priority at Glass Door is to assist guests with applications to the EUSS before the 30 June 2021 deadline (the Home Office is still to clarify grounds for late applications). We are qualified at OISC Level 1 to assist with EUSS applications though we are relying more frequently on external partners for support with complex cases as the deadline looms.

Worryingly, the second round of Home Office grant funding for organisations doing EUSS work ends in March 2021, two months before the deadline and so far the Home Office have given no indication about further funding.

All EUSS applications submitted following the deadline will be complex cases; representations will need to be submitted explaining reasons for delay and therefore will require OISC level 2 and above advice.

There is a real risk that the charitable immigration advice sector already overstretched and under resourced will be further unnecessarily burdened.

Court case broadens access to lifeline

Access to public funds following a grant of settled status has for some of the most entrenched rough sleepers we work with offered a route out of homelessness and access to much needed specialist support services. For those with pre-settled status, who did not have a ‘right to reside’ for the purposes of benefit entitlement, their situation did not change.

The differential approach to EU nationals was challenged in the Court of Appeal by Child Poverty Action Group (CPAG) who argued that the rules restricting access to Universal Credit for those with PSS constitutes nationality discrimination under EU law. The case was won, quashing the legislation that having pre-settled status is not a sufficient right to reside for the purpose of accessing mean tested benefits, though this has been stayed till 26 February 2021. (see https://cpag.org.uk/welfare-rights/legal-test-cases/current-test-cases/eu-pre-settled-status)

The end of free movement and the grounds for refusal

What does seem definitive is that free movement ends on 31 December 2020. From 1 January 2021, EU citizens passing through the e-gates will have deemed leave to enter for six months with a condition that they have no recourse to public funds. Significantly, under the existing EEA Regulations UKVI can only make reasonable enquiries about the person and who they are, but because those regulations will not exist from 1 January, they can make extended enquiries about the person coming in. It is to be seen what EU nationals will experience at the border from January.

On the 1st December 2020, Part 9 of the Immigration Rules came into force:

• Part 9. General grounds of refusal
• 9.21.1 Permission to stay may be refused where the decision maker is satisfied that a person has been rough sleeping in the UK.
• 9.21.2 Where the decision maker is satisfied that a person has been rough sleeping in the UK any permission held by the person may be cancelled.

The Secretary of State may use the law as grounds to refuse or cancel permission to stay of individuals in a number of immigration categories who are in the UK without settled status and are found sleeping rough.

The Public Interest Law Centre (PILC) is preparing a judicial review to challenge this policy on behalf of RAMFEL (Refugee and Migrant Forum of Essex and London).

Good news and bad news

In practice this will not affect the majority of guests that we see at Glass Door. The new rules will not apply to the following groups: most refugees and asylum seekers; anyone applying to remain in the UK on the basis of their private life under Article 8 - ECHR (European Court of Human Rights) within the Rules; family members applying for leave under Appendix FM (Family Members); former members of the UK Armed Forces and their family members; and applicants to the EUSS. It does not apply to EU nationals with Settled or Pre-Settled Status.

The primary concern is that it sets a precedent. It is an echo of the previous attempt by the Home Office to remove rough sleepers, a policy that was found to be unlawful and discriminatory by the High Court in 2017. All the government will need to do in future is to change a few lines of the rules and it will apply to our guests.

We are concerned that these multi-pronged attacks by the Government will end up disproportionately discriminating against the most vulnerable and perpetuate a culture of fear against the statutory services that are there to provide protection.