Early in March I interviewed Joe Tomlinson, a senior lecturer in public law at the
University of York. His extensive research focusses on administrative law and justice. When
asking Joe Tomlinson about an ‘upcoming’ area of public law which is so far
underrepresented in academic commentary, the topic of digital immigration status was
discussed. Digital immigration status has recently been introduced for settled EU citizens and
other migrants, to prove residency instead of paper documents. Joe has recently released an
article on this topic, so was particularly keen to discuss it [1].
The introduction of digital immigration status means that around 5 million people do not have
any physical documents to prove their status to reside in the UK. The mandate for this was
unclear, the closest being the Withdrawal Agreement’s provision that status can be digital
although not that it must be or is the only option [2]. It relies on assumptions of digital literacy
and enhanced security which Joe suggests are misplaced. There are examples of fake advisers
who offer applications for status, and then charge people to access their status, which should
be freely available on the Government’s website. The extent of these scams is also hard to
judge as the scheme is so new.
Similar to physical documents, digital documentation can also be lost where technical errors
still occur. The Windrush scandal clearly demonstrates how extensive such an issue can be.
As the Windrush Lessons Learned Review highlights, ‘the sincerity of [the] apology’ from
the Home Office will be determined by its readiness to fundamentally change its culture to
prevent a repeat [3].
Joe’s recent article suggests that the policy is unlawful due to its indirectly discriminatory
effect. There may be instances where proving a right to rent is difficult using digital status;
individual private landlords may be used to physical documents such as passports and will
not know how to use digital status, so will err on the side of caution by prioritising applicants
with physical documents. A similar effect will be had for jobs where, although large
companies with HR departments may be able to deal with it, smaller institutions will prefer to
avoid digital documents. These effects, however, are hypothetical: the extent of potential
discrimination will be hard to measure with such a new policy, and the Government does not
seem to be conscious of the risks.
This led campaign group ‘the3million’ to run a campaign against the policy called
#deniedmybackup [4]. There have been a range of cases brought on this issue already but
most have been dismissed, as there has been no measurable effect yet. The more problematic
position is to wait until discrimination occurs before the courts rule against the policy. In a
case brought in 2020 and discussed in Joe’s article, although it was found that the right to
rent scheme caused indirect discrimination, this ‘was justified as a proportionate means of
deterring irregular immigration’ [5]. Joe, too, presents a convincing case against the
Government on the basis of indirect discrimination. Yet the courts lack the measurable effect
required to speak on the matter, but this will come over time. The judicialisation of the issue is
inevitable, and the Government seems to be relying on the courts to highlight the
discriminatory effect of the policy instead of proactively amending it.
Overall, this area shows a complex intersection between the Government’s Brexit and
immigration policies. It forces us to ask a seemingly simple question: how important is
paper? Many may see paper records as more official, yet this may differ generationally. This
goes beyond the difference of Joe printing plane tickets, and me being comfortable having
them on my phone. The issue is less with paper, but more so with trust. Something
particularly prevalent where some migrants who must now rely on digital status have come
from states where governments are not trusted. This may extend to the UK, where individuals
have bad experiences with the Home Office and are then denied the reassurance of a physical
document, as is common worldwide. If discussion over the colour of British passports after
Brexit tells us anything, it is that physical documents matter to people. Beyond a simple status
check, they are confirmation of your right to be in the country. It is easy, then, to see how so
many argue that this digital shift has come too soon.
Joe’s article covers the topic in far more depth than I have, and is available here.
[1] Joe Tomlinson and others, ‘Discrimination in Digital Immigration Status’ [2021] LS 1.
[2] Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland
from the European Union and the European Atomic Energy Community [2019] OJ C 384I/01, art
18(1) as cited in Tomlinson (n 1): ‘[proof] may be in a digital form’.
[3] Wendy Williams, Windrush Lessons Learned Review (HC 93, 2020).
[4] See also, as cited by Tomlinson (n 1): Tanja Bueltmann, Experiences and impact of the EU
Settlement Scheme: report on The3Million settled status survey (The3Million, 2020) 26;
The3Million, Provide EU citizens with physical documents as proof of (pre-)settled status’
(2019) 1.
[5] R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home
Department [2020] EWCA Civ 542, [2020] 4 All ER 1027 [146] (Hickinbottom LJ), as cited in Tomlinson (n 1).
