Ellen Höfer: The only hope for EU New Scots faced with illegal status is an Indyref within the next 12 months

“If Scotland holds an independence referendum within the next 12 months, it may just come in time to stand up for our EU new Scots in deed as well as word.”

FOR THE PAST THREE AND A HALF YEARS I, a now 33 year old German-born New Scot, have acted as the creative director of EU Citizens for an Independent Scotland. The organisation predates my joining it; its founder Sylvie Burnett, a French national, created EUCIS in 2013 with the aim of reaching EU citizens and engaging them with the 2014 independence referendum, adding a European perspective to the landscape of the independence movement. Since then, the group has grown to a following of well over 47,000.

Since the 2016 EU referendum, the MO and strategy behind our organisation has changed somewhat: We quickly realised that because EU citizens were so well integrated in the UK and in Scotland, there had previously been no need for so-called ‘special interest groups’. Now that EU citizens in Scotland stood to lose all their rights – with Theresa May, the architect of the Hostile Environment when she was Home Secretary, now prime minister and ready to not only sacrifice us on the altar of Brexit but also everybody else’s human rights – I joined in the knowledge we had a mountain to climb to call attention to our plight.

Buoyed by Scotland’s generally more inclusive attitude and welcoming rhetoric from government officials, as well as my shared pro-independence ideals, I was optimistic we could contribute our insight to help our common home nation to take the right steps available to protect EU citizens to the best of our abilities. I was wrong.

During Theresa May’s tenure, details about the so-called Settlement Scheme went in and out of focus, changed and changed again. In essence, each EU citizen resident in the UK was told to apply (instead of register) to receive either Settled Status or pre-Settled Status for a fee of £65 (which was later dropped due to political pressure). However, applications could only be made digitally through a mobile phone app (not usable on some phones including iPhones), which took over two and a half years to develop and launch. An 85-page paper-based application also became available, though this route (as well as those affected by mobile app glitches) requires the applicant to send away their passport for an indeterminate amount of time alongside their application.

While the UK Government faced constant pressure and a stream of criticisms and questions surrounding the EU Settlement Scheme, the Home Office more often than not failed to answer even the most basic of inquiries about the number of applications, percentages of awarded statuses between preSS and SS applicants, and consequences of entirely predictable use case scenarios. At some point, the UK-wide EU citizen rights lobbying group ‘the 3million’ (a reference to the 3.3 million EU citizens thought to reside in the UK at the time of Brexit) sat on a list of over 150 unanswered questions they had posed to the Home Office without any even approximate, let alone detailed reply.

I had spent my time in Scotland attempting to network and collaborate within the independence movement, building bridges with potential sister organisations and making contact with Scottish Government officials in relevant positions. The EUCIS team designed, printed and helped to distribute half a million English and Polish flyers about signing up to vote (“Home is where your vote counts!”), organised Jock Tamsons’ Fest in Dundee to celebrate diversity in Scotland, had spoken to numerous Yes groups up and down the country, participated in many of the EU citizen and Settled Status-related events across the nation, spoke to countless European and international media outlets about Scotland, independence and EU citizens and were part of the 3million Scotland coalition. Their aim was to exchange thoughts, formulate approaches and advise the Scottish Government on both needs and appropriate strategies to cater for EU New Scots, their families and dependents.

The one thing I had not done was apply for Settled Status.

The more involved and knowledgeable I had become about the Settlement Scheme, the more glaringly obvious its pitfalls became. And to me, the most obvious and near insurmountable one was and remains the issues surrounding data protection and privacy.

Aside from proof of residence in the UK for the duration of your stay (at least five years’ worth, if you hope to achieve full Settled Status), from tax history, council tax invoices, household bills, bank account summaries, or whatever else you can find and squeeze into the nine file upload limit prescribed by the app, the reason that you use a mobile phone to apply is mainly down to one feature: The phone scans the RFID chip embedded in your passport, which holds both general information as well as biometric data such as a facial scan and, in the case of some countries, your fingerprints.

The privacy policy, which applicants have no option but to agree to if they wish to make an application, commits applicants to allowing the UK Home Office to share any data provided, including biometrics, with third party organisations within and outwith the UK, without further knowledge and/or agreement from applicants about the who, when and why. The UK High Court has repeatedly confirmed that it is legal for the UK Home Office to never have to share with applicants what information was used to come to decisions on applicants’ immigration status.

Right now, the UK Government’s Coronavirus tracing app is making waves across the UK and is facing a lot of opposition from citizens vowing to never want to download or use it due to concerns about the developers and data harvesting. The Settled Status app doesn’t just sit in the background of your phone tracing where you go: If you are an EU citizen, you

  •  have no choice but to apply, or face the fact that on June 1st, 2021 you are deemed an illegal resident in the UK, losing your right to work, residence, access to social welfare, access to funds and becoming ‘liable for removal’
  • have to enter years’ worth of your personal of details to prove you have been resident in the UK as outlined above
  • hand over your unique, most personal biometric data, and
  • by default have given your consent for the Home Office to take all of this information to share it with others without your further knowledge.

While Brexit itself and discussion of the terms of exiting the EU have been postponed several times, the application deadlines for Settled Status have been more rigid. Even I, as a still staunch, conscientious (yet admittedly privileged) Settled Status application objector, have no real choice but to abnegate my opposition and apply before the end of the deadline, leave the UK or face the full brunt of the Hostile Environment. So why am I still holding out?

In October 2019 UK figures on application rates revealed that I am not the only EU New Scot offering resistance. In fact, UK-wide application rates for Settled Status were lowest from Scotland. Given that the Scottish Government invested a significant amount of resources into making information about how to apply available to Scotland-based EU citizens, you and I might both have good guesses on what other reasons may have contributed to the low response rate from Scotland.

For one, the lukewarm words on an imminent independence referendum, incessant recapitulating postponements due to either lack of clarity on Brexit or lack of nebulous polling percentages may have contributed to the comparatively low level of applications alongside the inclusive and welcoming immigration rhetoric deployed by Scottish Government officials. First Minister Nicola Sturgeon not only sent every EU citizen in Scotland a sympathetic letter following the 2016 Brexit referendum which they had not been able to vote in, but has since used the phrase “You are welcome and valued” so often that if it was a screensaver, it would now be burnt into each and every one of our computer screens.

Cabinet Secretary Michael Russell stated both via Twitter and at his speech at the SNP Conference in 2019 that he “won’t be doing that from Scotland……” in response to Secretary of State Brandon Lewis confirming that EU citizens will be subject to full immigration enforcement and liable to removal if they miss the Settled Status deadline.

Unfortunately, in the eight months since his speech at conference, and despite my making a list of suggestions publicly and directly available to the Scottish Government ministers aiming to act as starting points for further proactive engagement and action on EU New Scots in Scotland, there have been no further developments to speak of.

Because being ‘valued and welcome’ in Scotland does not automatically mean ‘safe and protected’ in deed, I decided to contact Michael Russell for this article to request clarification on his statement from October. I asked him: “What concrete policies are or have become available to the Scottish Government in order to prevent deportation of EU citizens who have not applied for Settled Status by the end of the deadline?”

The Scottish Minister for Europe’s reply was surprisingly convoluted and ominous: “My tweet relates to any individual who has a legal right to be in Scotland and the fact that the Scottish Government would and will stand up [sic] those individuals. We have indeed consistently done that even under the current migration rules. I would expect we would use all legal routes available to us to do so.”

I read it five times and still could not make sense of it in the context of his and the original tweet he replied to. I read it to my friends and political contacts, asking for their interpretation of what Mr Russell said. One friend replied flatly: “So the Scottish Government won’t allow the deportation of people who won’t be deported anyway because they already have Settled Status but leave those out in the rain whom the tweet was actually about?”

At this point in time, Scotland does not hold the powers over immigration in order to protect all EU New Scots; this is precisely where the corpse of the Scottish Government’s ‘protection’ lies buried in nothing but rhetoric. EU citizens have been a feel-good topic for Scottish politicians – garnering cheers and a sense of pride in being less-racist-than-Westminster from many in Scotland. Yet all declarations of solidarity and fighting talk that Scotland will not allow UK immigration law to be enforced upon EU nationals in Scotland ring hollow without the only thing that will allow Scotland to protect its new Scots (particularly those who, for whatever reason, do not apply for Settled Status in time to meet the deadline).

Without another independence referendum in the next 12 months, EU citizens will be the first collateral of the delays, lack of focus and humming and hawing that have marked this era of Holyrood politics. It is very difficult to remain optimistic about the current Scottish Government’s intentions about a timely referendum when even a cabinet secretary qualifies support for EU citizens in terms of legal immigration status under UK law.

As for me, I decided to call on the only other public figure beside myself who is also still publicly refusing to apply for Settled Status, Christian Allard, the French-born former MEP and current SNP councillor in Aberdeen. I asked him when and whether he plans to apply. He conceded that he, too, isn’t willing to sacrifice his and his family’s life in Scotland by not applying for Settled Status and therefore becoming an illegal resident of the UK. Both of us will leave our applications until the very last moment possible, both of us are aware that we are privileged by being able to be conscientious objectors rather than inadvertent subjects to this horrendous change in circumstances. We both know that EU citizens just like us living in Scotland today will fall through the cracks come summer 2021 and will no longer have the right to live their lives in their homes in Scotland.

I used to believe that independence would not come in time to cancel out this threat to the livelihoods of 300 thousand new Scots like myself, but Christian changed my mind in an article calling for a referendum to be held at the beginning of April 2021, the last days of the current administration’s tenure. If Scotland holds an independence referendum within the next 12 months, it may just come in time to stand up for our EU new Scots in deed as well as word. Michael Russell will retire before the June deadline comes.

I will be fighting tooth and nail for what I want for all of Scotland, when it is most needed: Independence, as soon as possible.