Brexit, Data Privacy and the EU Settled Status Scheme
By Amy Shepherd, Legal & Policy Officer at Open Rights Group
The UK is expected to leave the EU in less than four working weeks’ time. Roughly 3 million EU citizens reside in the UK. These two facts are not unrelated.
The EU Settled Status Scheme (“the scheme”) provides the administrative route through which all EU nationals must apply to remain in the UK after 30 June 2021, in the event of a deal, or 31 December 2020, in the event of no deal.
Operation of the scheme relies heavily on an automated data check: enter your national insurance number on the online portal and the Home Office will use HM Revenue and Customs (HMRC) and/or Department for Work and Pensions (DWP) data to identify if you’ve reached the required five years of continuous residence to qualify for “Settled Status”. If the data says ‘no’, you’ll be invited to accept an outcome of “Pre-Settled Status” or to upload further documents evidencing your residence for manual checking by a Home Office caseworker.
The system is supposedly designed to operate smoothly and effectively. So far, however, it fails to meet either of these objectives.
Open Rights Group (ORG) and the Immigration Law Practitioners Association (ILPA) have been working together to examine the data check system operation, ask questions to the Home Office to press them to share more information about the data processing in the system and propose outcomes which would remedy current deficiencies.
The main concern our research has explored is the opaque manner in which the HMRC/DWP data is processed by the Home Office to produce an output result.
As the system presently operates, applicants aren’t fully informed about what data is reviewed in the process of deciding to grant them settled status or not, nor are they told how the Home Office algorithm applies to calculate an output result. This lack of information means that applicants who are refused settled status cannot easily identify why, or locate any errors in the data or the process which they should challenge.
Ideally, all applicants should be presented at the outcome stage with a printable document or web-page listing the data checked and what logical process the data underwent in order to inform the assessment of eligibility.
There is also no clear picture about what data is retained by the Home Office after the output decision is issued, with whom this data might be shared and to what purpose this data will or might be put. The Home Office states that the “raw data” provided by HMRC/DWP “disappears” as soon as an outcome is produced, but this does not answer the question of what it is doing or plans to do with the data created through the application process.
The scheme is expected to come into full effect on 30 March 2019 and millions of people will need to register to remain in the UK post-2020/2021. The issues with how the system operates are leading to a lack of trust by potential applicants, a lack of safeguards for vulnerable groups and potentially poor data protection, all of which hinder the scheme from working effectively.
The Home Office has specific legal duties to make sure the data check is conducted lawfully. These include a duty to give reasons for check outcomes, to put safeguards in place to limit how much data is collected and how it is retained and shared, to ensure caseworkers have meaningful manual oversight of the automated parts of the process, and to provide public information on how the check really operates so that potential applicants can understand how the scheme is likely to operate in their case.
We’ve reached out to the Home Office with a range of questions and proposals for action but have yet to receive any substantive response. We hope that they will engage with us soon. The problems we’ve identified are largely not difficult to fix and it would be beneficial to make the necessary changes before full roll-out at the end of the month. This positive action would also significantly assist in building trust and breaking down entry barriers to citizens already worried about how so many aspects of Brexit will affect them.