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Brexit and Beyond report from @UKandEU is out today. Fantastically insightful on so many counts, but it has few mentions of the EU Settlement Scheme (EUSS) or the rights of EU/EEA/Swiss citizens and family members. A few quick reflections on it. <1/20> https://ukandeu.ac.uk/wp-content/uploads/2021/01/Brexit-and-Beyond-report-compressed.pdf
It's interesting that, when mentioned, the EUSS is described as 'registration' and 'success'. I think both these notions need unpacking. Let's think about 'registration' first. <2/20>
As per the recent @CommonsFREU report on Implementing the Withdrawal Agreement: Citizens’ Rights, there is a fundamental difference between declaratory and constitutive schemes, which are both allowed under the Withdrawal Agreement (WA). <3/20> https://committees.parliament.uk/publications/3082/documents/28944/default/
Under declaratory systems (unlike EUSS) those meeting relevant conditions automatically have rights and only *register to get a proof of these rights. Under constitutive systems (like EUSS) those complying with relevant conditions have to *apply to attest their rights. <4/20>
You might say it's semantics, but it's not. If you miss the *registration deadline under declaratory, your residence becomes undocumented. That's serious. If you miss the *application deadline under constitutive though, your residence becomes unlawful. That's worse. <5/20>
A recent-ish report from @MigObs lists a number of groups that might miss the *application deadline - and thus lose rights -without anyone noticing. That's because nobody knows how many EU citizens are in the UK exactly, and how vulnerable they are. <6/20> https://migrationobservatory.ox.ac.uk/resources/reports/unsettled-status-2020/
Under declaratory those residents would face adversity after *registration deadline had passed, but they'd have retained their rights. Under the EUSS this isn't the case and they'll face an uphill struggle to convince the Home Office they had good reasons to *apply late. <7/20>
Secondly, we have this notion of EUSS as a 'success' because 'four million EU/EEA citizens' have applied to it. But is this enough to call it a success? As a technocratic exercise, the EUSS is surely a feat. But first we need to ask who it's for: applicants, or government? <8/20>
I'm not seeking to much disagree with this assessment by @jillongovt in the context of civil service. In my (arguably limited) knowledge of the Home Office, it approached the EUSS differently, properly resourced it, and that's why as a *technocratic exercise it worked out. <9/20>
But there are unanswered questions looming large if you consider the EUSS as a system that has to work for all applicants, and which will have to work for their lifetime - and not just at the point of application. <10/20>
First, indeed we know that millions of people applied to the EUSS by now (though we don't know how many exactly, see below). But the bigger question is: how many have not and will not? Nobody knows. Can we call the EUSS a success before that's clear? <11/20>
Second, of those who have applied, close to 2 million only got the lesser pre-settled status. They will have to apply again to get full settled status, or lose their rights. Are there reasons to think this might be a problem? Well... <12/20> https://www.gov.uk/government/collections/eu-settlement-scheme-statistics
Exhibit 1: in March 2019, the Home Office estimated there would be 0.9-1.4mn making a follow-up application in order to obtain settled status, having been granted pre-settled. But the actual number of pre-settled grants is over 1.8mn and growing. <13/20> https://www.legislation.gov.uk/ukia/2019/74/pdfs/ukia_20190074_en.pdf
Exhibit 2: success rates for upgrade applications are unknown as the Home Office have been refusing to collate or release relevant stats since October 2019. As a side effect, we don't know how many people exactly applied to the EUSS. <14/20> https://www.freemovement.org.uk/home-office-admits-double-counting-in-the-eu-settlement-statistics/
Exhibit 3: lots of other data that could tell us just how well the EUSS performs in terms of getting EU+ citizens the right status, or ensuring equality of outcomes for different groups, seem to be available but they aren't being published. <15/20> https://www.freemovement.org.uk/government-hiding-key-settlement-scheme-data-inspection-report-suggests/
All this means: we know the EUSS has been effective in reaching large numbers of applicants, but we also know it awarded the lesser status large numbers. How many is the EUSS yet to reach? What are its equality outcomes? We don't know, and won't know anytime soon. <16/20>
There are also ample 'known unknowns' of the EUSS beyond Brexit: one set is related to using the status and the other to the wider constitutional environment in the UK. <17/20>
Using status: the EUSS is, with minor exceptions, digital only. How will its users get on with it? What about the digitally excluded, the elderly, the impaired? We've no idea, it wasn't tested in the real world. And how will landlords, employers and others engage with it? <18/20>
Constitutional environment: it determines how the rights of EUSS holders can be protected and enforced. Many pieces in the report highlight concerns over democratic oversight and accountability (secondary legislation, judicial review...). How will this affect the EUSS? <19/20>
The EUSS has worked well in one sense, and credit to many civil servants who engaged, designed, improved, and listened. But there are enough policy and political devils lurking in the detail to warrant a separate piece on the EUSS in such a great collection! 
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