Is the EU Settlement Scheme legal?

Question

I moved to the UK 20 years ago when I was a 14-year-old child. I settled here - studied, worked, started my own business, had kids and so on.

Because of the EU membership, I was guaranteed equal treatment with nationals in access to employment, working conditions and all other social and tax advantages.

Now, because of Brexit, I have been told that in order to stay I need to apply for settled status. Isn’t this discrimination since nationals do not have to apply? Isn’t the UK Government breaking the law?

I am very worried and distressed at the idea of having my name and personal details in such register. With this scheme, is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing?

Is there any ground for challenging this scheme legality in court?

Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)?

Edit - clarification

Some suggested I naturalise but I don't want to because I don't feel the UK is my homeland and I don't share some British values (for a start, I am not a royalist so I would have a problem with the registration oath...). Also, there is a considerable cost associated to this process.

Edit - ask for clarification

Some suggested that

discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race)

Article 14 of ECHR prohibits discrimination based on:

"sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status"

Would you not consider EU Citizens residing in a foreign country of other national or social origin or even just of other status?

Also:

The European Court of Human Rights has ruled that European Union member states cannot consider the nationals of other member states to be aliens

Doesn't the settled status scheme contravene this, while the UK is still part of the EU?

Answer 1

Isn’t this discrimination since nationals do not have to apply?

Yes it is discrimination. But that does not make it illegal. In fact discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race).

And in general, all of the countries in the world allow and enforce discrimination based on nationality; for example non-nationals will not be able to run for Head of State (and additional restrictions may apply).

The EU members allowing similar rights to the citizens of other EU countries is the exception, not the rule, and once the UK stops being bound by EU treaties it can impose its own legal system on non-nationals. And while EU treaties give lots of rights to EU member-countries citizens, they still allow for discrimination based on nationality (for example you cannot run for Prime Minister or MP of Spain as a foreign EU resident).

Isn’t the UK Government breaking the law?

This could go against EU treaties, but the point is that the UK will no longer need to comply with them.

is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing?

No, the UK Government is not responsible if you do not like its laws to the point that it affects your health.

Is there any ground for challenging this scheme legality in court?

Unlikely. In any case it will not be because you are frightened by it, any challenge would be in the grounds that the government actions act against some other UK law. For example, if the decision to make such a list was made by the Executive but it contradicts some law approved by the Parliament. If this list does not contradict any law, then there are no grounds for challenging it.

Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)?

If you do not apply you will not have any evidence that you were settled, and the government could legitimately believe that you are irregularly in the country and try to expel you; you probably would have an opportunity to prove that you were settled even if you were not in the list but that could be way slower, more expensive, riskier and stressful than just registering now.

Get this clear: that settled person list is to help you to show that you were a UK resident before Brexit and to give you the protections that are being negotiated between the UK and the EU for expatriates. Probably you could choose not to enlist, but it would work against you.

Answer 2

I need to apply for settled status. Isn’t this discrimination since nationals do not have to apply?

Yes it is.

Isn’t the UK Government breaking the law?

No, discrimination is only illegal when it applies to specified classes (race, sex etc.) is specified situations (employment, access etc.). It is not illegal for immigration to discriminate against foreigners.

I am very worried and distressed at the idea of having my name and personal details in such register. With this scheme, is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing?

Not unless there is a law that says it is. If the law were applied to you specifically in an arbitrary or capricious way there may be a claim but that seems unlikely.

Is there any ground for challenging this scheme legality in court?

Not that I can think of.

Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)?

No

How about if I was refused, re-entry or access to public services (NHS for example)?

No

Essentially, if you are not a citizen of a country, you are in that country on whatever terms and conditions that country sees fit to impose. Historically, EU citizens have had a privileged status but the legal obligation to maintain that status ends with the end of the UK’s membership. At present, the UK’s intention is that the privileged status will continue for those presently in the UK so they need to know who that is. Of course, a future government may change the law: if it’s your intention to remain in the UK permanently you may want to consider taking out UK citizenship.

Answer 3

I want to answer one part missed so far:

Isn’t the UK Government breaking the law?

Currently, if the UK Government would be requiring this from you, they would break the law. Laws made by the EU.

After the Brexit, the UK isn't part of the EU anymore. EU law doesn't concern them. The only law they could break is the law of the UK. And because the law of the UK is made by the parliament in the UK, they will make sure that they don't break it.

You have no right to be in the UK, unless granted by some law (made entirely by the UK post Brexit).

The only thing you can do if you want to enjoy the protection of the EU law post Brexit is leave the UK and move to the EU!

Answer 4

discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race)

sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status

Your assumption is that you are treated differently from your neighbors because they are British and you are not.

However, as I have already written in a comment, this is a wrong assumption:

Your nationality is not the real reason for the different treatment.

You are treated differently from your neighbors because they are living in their "own country" while you are living in a "foreign country".

Article 13 of the Universal Declaration of Human Rights explicitly states that you are allowed to "return to your country" but there is no article that states that you are allowed to enter a "foreign" country.

This means that the Universal Declaration of Human Rights does distinguish between "one's own country" and "foreign countries" (at least in the case of the question if you are allowed to stay there or not).

The European Court of Human Rights has ruled that European Union member states cannot consider the nationals of other member states to be aliens ...

As far as I understood you correctly, you don't need this registration if you want to leave the UK before the Brexit.

You will need the registration now to be able to prove that you have already lived in GB today when the Brexit is over.

After Brexit GB will no longer be an EU member, so you cannot argue that an EU member country has to follow certain rules. The British government will be allowed to set rules as they like.

If they want you to prove that you have lived in Britain before the Brexit by submitting documents that show that you have registered before the Brexit, they are allowed to do this.

Answer 5

Human rights are red herring here. Your human right is to stay in your own country, not in a country of your choosing (in this case UK). You're requesting a privilege beyond human rights.

All other rights and privileges are given to citizens by the state. A non-citizen has no such rights by default. UK had chosen to grant you some rights by the means of international agreement with other EU countries. As this agreement is under process of being dissolved, so are your rights stemming from it. UK is in power to deport you after Brexit. Instead, they have chosen to grant you another privilege, this time on the basis of registration instead of your citizenship of another EU country.

You're not being illegally discriminated against. The future difference of treatment you vs UK citizens comes from the simple fact that they are citizens in their own country and you're a foreigner. That's not discrimination. You can chose to not register now and go back to homeland after Brexit, thus retuning things to where they should be: UK citizens in UK, citizens of your country in your country.

If you feel that UK is your homeland, then appropriate course of action is to adjust legal status to reflect real status, e.g. eventually apply for citizenship. Spending all your life in a country you're not citizen of is betting your life on a sandcastle. There is nobody to be blamed for that but you. Seriously, you're just a guest in your own home.

As I understand it now, this less of a legal question and more of a feelings question. I get it. Your whole life is threatened. That's immense pressure I can't even imagine. And you're displaying a standard human response of trying to fight back. You're trying to throw a punch at anything and the closest thing that you can see is the settlement scheme. However, just like in real life, the thing that's closest to reach is usually not the culprit but things or people coming to help you. So is the settlement scheme. What are you trying to achieve by stabbing the lifebuoy? Let's imagine that you manage to successfully sue the violation and get the whole scheme overturned: all data registered so far deleted, etc. Where would that get you? That after Brexit neither you nor most other EU citizens will have any claim to continue residing in UK and get deported immediately. Your true enemy is the Brexit itself, not "Brexit fallout damage control scheme".

To answer your edit: the Scheme is not required now. As long as UK is in EU, it's non-mandatory, you can live your life as you were, therefore there is no different treatment of UK vs EU citizens. After UK leaves, they won't be bound by this article, so again no illegal discrimination will happen.

Answer 6

Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)?

To answer only this part of the question, the answer is potentially yes. It's not unusual for immigration decisions to be overturned on Human Rights law grounds. However, it can be an extremely rough process if you're not allowed to work or rent while you're appealing. And it costs money.

Answer 7

Now, because of Brexit, I have been told that in order to stay I need to apply for settled status. Isn’t this discrimination since nationals do not have to apply?

Yes, requiring you to apply for settled status is discrimination. It is well established that a country may discriminate against foreigners by imposing conditions on their presence in its territory. However, EU citizens, as you note, have additional rights to be present in EU countries even if they are not nationals of that country.

Isn’t the UK Government breaking the law?

No. You do not need to apply yet. Applying for settled status will only become mandatory at some point after the UK leaves the EU, when the UK will no longer be bound by EU law not to discriminate against EU citizens.

In fact, the deadline for the application is June 30, 2021, which is six months after the anticipated end of free movement on January 1, 2021.

The ability to apply earlier is simply an administrative convenience for the UK and an opportunity for EU citizens living in the UK to have some peace of mind.

Answer 8

There’s a deadline of either Dec 2020 or Jun 2021 to apply for settled status.

If you don’t apply by then you won’t have the right to stay in the U.K. It will take a while until someone figures it out and asks you to leave, and there may be no strong will to ask you (depending on where you come from), but you can be asked to leave, even if you lived in the U.K. for 30 years.

If you apply you have the right to stay at least until your case is decided. If it is decided against you, which doesn’t happen often, your right to remain ends.

You either get settled status or pre-settled status. With settled status you can remain as long as you like unless you leave for more than five years or are convicted of some serious crime. With pre settled status you have the right to stay and apply for settled status again up to five years since you applied.

Importantly if you don’t apply you lose your rights. Even if you can prove that you would have received settled status had you applied, that doesn’t help if you don’t apply. For example if you had indefinite leave to remain, settled status is just a formality, but you still need it. At danger are children whose parents don’t apply for them out of stupidity, people who have been in the U.K. for ages and think they don’t need settled status (they do), and nobody knows if exceptions will be made for vulnerable people (like someone in a car home).

Answer 9

The short answer is yes, at the moment. Take for example the situation you describe where you were deported and forced to abandon your children (who are presumably British). Under current British law, which includes the Human Rights Act, you would likely have a very strong case to make on the right to family life.

The problem is that as soon as the UK is out of the EU it can ditch human rights, and the Tory government has indicated that it would like to do just that.

Being a member of the EU requires a country to adopt the European Convention on Human Rights. Once the UK leaves the EU the obligation is removed. Without the protection of the EU the British government is free to abuse you this way.