The gendered aspect of Brexit

In summary

After several years of uncertainty following the UK’s vote to leave the EU in June 2016, many EU citizens and their family members were offered the opportunity to secure their UK immigration statuses following the launch in March 2019 of the Government’s EU Settlement Scheme (EUSS), which sought to protect the rights that EU citizens and their families had previously enjoyed in the UK.

By the time the scheme closed in 2021, some 5.75 million individuals had submitted applications and 5.3 million grants of status had been issued – either settled or pre-settled status.

The Government lauded the high numbers, describing the process as “hugely successful.”

However, hundreds of thousands of people still managed to fall through the legal cracks and failed to obtain a legal status under the EUSS, raising questions about whether certain types of applicants were more disadvantaged by the EUSS process than others, in particular, vulnerable migrant women.

What did we explore and how?

Research carried out by Dr Adrienne Yong, Senior Lecturer at The City Law School and an expert in EU and immigration law, concluded that migrant women were disproportionately represented in the group of unsuccessful applicants and that women who were the most vulnerable fell outside the legal protection that the EUSS was meant to provide.

She demonstrated this by considering the plight of two groups of vulnerable  migrant women who were required to apply through the EUSS to remain in the UK after withdrawal – those at risk of or experiencing violence against women and girls (VAWG) and those who were a non-EU family member (NEFM) of an EU citizen.

The intersection between being a woman and being an migrant is of key interest to Dr Yong as a woman who is herself an immigrant to the UK.

She says: “I am originally from Malaysia but my family moved around a lot in South East Asia through work, so immigration and migration has always been something of interest to me.

I chose to come to the UK in 2008 to study at university and then I decided to stay. I went through all the processes and lots of different visa regulations over the years.

I was someone who was in an extremely privileged position but I still felt it was difficult and stressful. Realising the situation must be far worse for those not in the privileged position that I was in sparked an interest in me which I pursued in my research.”

Having done a PhD on EU citizenship and its relationship with fundamental rights, Dr Yong later refocused her area of research interest in the wake of Brexit.

“When Brexit happened, a lot of EU citizens lost their rights and a lot of people were disadvantaged in many ways,” she says. “I particularly wanted to look at women who have been disadvantaged by Brexit.

Vulnerable women seemed to be forgotten about, so my research has tried to bring these vulnerable women to the fore and to consider how Brexit specifically has affected them in the context of the EUSS regime.”

The EUSS operated as a fully digital system to make the application process as smooth as possible for those who fulfilled the three main criteria – proof of identity (ID and biometrics), eligibility (residency in the UK) and suitability (proof of good character).

Benefits and influence of this research

In certain exceptional circumstances, paper-based applications were required – for example, if the applicant did not have digital access, did not have an ID document or whose rights were based on a dependency on an EU citizen (as in NEFMs).

Dr Yong argues that this discriminated against vulnerable women from the VAWG and NEFM groups because they were more likely to have to apply on paper.

One of the key challenges in analysing the outcomes of applications by women was the absence of any gender breakdown in the quarterly EUSS statistics, while paper applications were not included in the data until more than a year after the EUSS launch, without detailing the success of paper versus online applications.

It took a Freedom of Information (FOI) request by Professor Catherine Barnard and Fiona Costello to reveal that paper applications were significantly less likely to be successful than the online route, reinforcing Dr Yong’s central thesis that vulnerable female immigrants were disadvantaged by the EUSS process.

The impact was particularly stark for those applying for UK immigration status under the NEFM route. NEFMs fell into five different groups based on case law precedents. Three of these applied to carers of EU children and dependents, who are most likely to be women.

Of the three categories, the most problematic was the NEFM group that used Ruiz Zambrano case law in their applications, which grants rights to non-EU carers of EU children irrespective of whether they are able to support themselves economically.

According to the Home Office’s data, 89% of the NEFM applications that were rejected under the EUSS were ‘Zambrano’ applications – mainly women and among the most precarious and vulnerable individuals applying to the scheme. The implication was that their rights under case law were protected only in principle, not in practice.

The specific issues facing victims of VAWG under the EUSS related largely to the criteria of proof of ID and eligibility, the absence of which required them to resort to paper applications.

During the period of operation of the EUSS, there was well-documented evidence that women under the control of or estranged from an abusive partner often had difficulty accessing their ID. The requirement to scan an ID document on a mobile app also raised issues of potential digital isolation and exclusion – a problem that extended beyond the VAWG group.

In terms of proving eligibility, the vulnerability of VAWG victims was actually formally recognised a year and a half after the EUSS opened when eligibility was extended to include women whose relationships had broken down due to domestic violence.

This targeted women who might otherwise have remained in an abusive relationship to avoid losing a link to an EU citizen and therefore face deportation.

However, Dr Yong argues that simply extending the criteria did not necessarily achieve the desired take-up because many women would not have understood or even known about the rule change. In reality, many victims chose to stay in their abusive relationship for fear of losing their rights and the perceived difficulty of applying through the EUSS by virtue of their own status.

The closure of the EUSS in June 2021 effectively drew a line under the specific challenges that many migrant women faced under the scheme, but Dr Yong believes vulnerable women will continue to face disadvantages when it comes to navigating the UK’s post-Brexit general immigration system. It is an area she plans to explore in her future research.

To bring greater attention to the plight of vulnerable migrant women, Dr Yong plans to take a more field-based approach in her future research and talk to women directly about their experiences with the law.

I want my research to make an impact beyond just the academy and to ensure that what I'm doing really matters. That's why I chose vulnerable women when looking at the EU Settlement Scheme because, as a migrant woman in the UK, I felt there was a lot of impact to be made.

I hope that by making sure that these women's voices are heard and are not forgotten, we can seek to protect them more in the law and maybe in future law. These are the voices that are often forgotten, often left behind and I really seek to make an impact by bringing their experiences to the fore.

I think that the role academia has is absolutely crucial. It is a privilege to able to speak up and disseminate my ideas and to get more attention placed on them is really the first step in tackling a problem.

Most people do not think there is a gendered aspect to Brexit. They don't think that in the EU Settlement Scheme, vulnerable women are more disproportionately affected than others.

I see my role as an academic to raise these issues and get them on the agenda, perhaps for policymakers, for government, or even for legal organisations on the ground to be able to actually fix the real-life situation of the women who are suffering with these issues.

Hopefully, I can get some funding to be able to reach these women, ask them about their experiences and document what is happening to them.

I have connections with legal organisations and legal charities that provide advice specifically for women in vulnerable situations.

I would like to work a lot more with them to ensure that these women's voices and their experiences are being heard and also on a more practical level to provide them with legal advice to ensure that they are not being left behind by the law.