In September 2020 we launched legal action against the Home Office over the EU Settlement Scheme. We believe the Home Secretary is acting unlawfully in failing to meet her duties under the Equality Act towards people with protected characteristics who are eligible for the scheme.

Our case is a challenge to the failure of the Home Office to properly monitor the impact of the settled status scheme on many vulnerable groups with protected characteristics under the Equality Act. 

We sent a pre-action letter to the Home Secretary on 26 August, urging a rethink of the scheme and asking for a response by 23 September.

Read our pre-action letter

The response we received was disappointing, if not surprising. The Home Office is failing to meaningfully engage with the risks faced by vulnerable people.

Read more about the case and all updates

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Our position on the Policy Equality Statement

We were very disappointed by the Policy Equality Statement, which was finally released on 18 November 2020. JCWI had been trying to access a copy of the PES for over a year and we remain mystified as to why the analysis could not be released sooner. We are dismayed that the Home Office has only published the document so late in the day, just over a month before the end of the transition period. Through doing so, not only has the department removed the opportunity for meaningful engagement with the public, EEA+ citizens, practitioners and experts, but it has also greatly increased the chances that the scheme will have a discriminatory impact. 

In our view the PES demonstrates a cursory engagement with the issues faced by protected groups. It does not suggest that equalities considerations have been robustly analysed, let alone built in to the design of the policy. There is no consideration in the PES of the fact that persons with certain protected characteristic will be less likely to know about the scheme, or their need to apply to it, in the first place. This is not recognised despite being a clear barrier to the effectiveness of the scheme for older people, people with certain disabilities (e.g. mental capacity issues), and poor English language or literacy (Roma people are overrepresented in this group).  

Neither is there any meaningful analysis of how employment conditions in different sectors and the unique difficulties posed by them intersect with protected characteristics (e.g. residential domestic workers or carers and sex, or agricultural or warehouse workers living on-site or in remote locations in dormitory like conditions and ethnicity/race/nationality).  

Where the Home Office does recognise the particular disadvantage that certain groups will face, the PES argues that it is justified as the measure is a proportionate means of achieving a legitimate aim, often using exactly the same words. For example, the PES acknowledges that the use of automatic data checks will put at particular disadvantage over 65 year olds who are less likely to have electronic records of employment (page 70), disabled people – due to lower levels of employment (page 73) and women, due to the fact that these checks do not cover state benefits that women are more likely to be in receipt of (page 71). The PES justifies all three instances of disadvantage on the basis that “using the automated checks reduces the overall administrative burden on applicants in general”.  

This demonstrates a generic and broad brush approach and suggests the Home Office does not see these discriminatory impacts as important enough to necessitate changes in the design of the scheme. There is limited to no engagement with the varied and unique disadvantages that each group face and how they could be rectified. For example, the Home Office does not consider how the convenience that automated checks give to applicants in general could be coupled with more flexible or preferential treatment of groups that are unable to benefit from this convenience due to their protected characteristic.  Neither does it acknowledge what the reality will be for older, disabled or female applicants who find it harder to apply as a result of the automated checks – namely being granted a lesser status that disentitles them from certain benefits or, worse, being left without status and subject to hostile environment measures.  

The Home Office also acknowledges that the lack of quantitative data impedes its ability to assess the equalities impact of the EUSS. The PES states at page 95: 

“We regularly review the performance of the EUSS through published statistics to try to identify under-participation amongst any groups which share a protected characteristic … For example, we are reflecting on what the available data tells us about the numbers of those aged under 18 or over 65 who have so far applied to the EUSS to consider how we can best tailor and target further communications and engagement activity to encourage those eligible for the EUSS in those age groups to apply and to help them to do so. This will include communications aimed at ensuring parents apply on behalf of their children eligible for the EUSS. However, it is acknowledged that this analysis is challenging given the availability of data on the resident population eligible for the scheme.” 

This shows that the Home Office recognises the utility of the data on the age of applicants on its ability to identify and, crucially, act on the underrepresentation of a particular age group – e.g. through targeted communications. The ability of the Home Office to do this will be severely constrained for other protected characteristics, due to its lack of monitoring. The Home Office is seemingly aware of this but still does not address why it has decided not to collect data through a voluntary monitoring form or otherwise.