30 June 2022

The UK government has set out its intention to digitise the country’s immigration system. This includes the introduction of digital-only immigration status and the removal of physical status. Whilst the Home Office has promised a quicker, more secure and cost-effective system, critics have argued that the shift towards digital-only status is discriminatory.

Move towards digital immigration system
European Union Settlement Scheme
The UK’s withdrawal from the European Union Settlement Scheme (‘EUSS’) marked a turning point in the digitisation of immigration status. Under the scheme, millions of EU, EEA and Swiss nationals have been granted digital-only immigration status.

In addition, for the first time, individuals were able to make an online application and submit their biometric information using an app (rather than attending an in-person biometric appointment at a UKVCAS centre). The digital nature of the EUSS proved vital in the wake of the COVID-19 pandemic. As UKVCAS centres across the country closed, individuals were still able to submit their biometric information using the EU Exit: ID Document Check app. Inspired by the success of the EUSS, the Home Office introduced two other identity verification (‘IDV’) apps, UK Immigration: ID Check app and UKVCAS IDV app, for other types of UK immigration applications.

Right-to-work and rent checks
Right-to-work and rent checks are also undergoing a digital transformation. Since 6 April 2022, employers and landlords must conduct an online right-to-work and rent check on individuals holding a biometric residence permit (‘BRP’), biometric residence card (‘BRC’) and Frontier Worker permit (‘FWP’). It is no longer permissible to conduct a manual right-to-work or rent check on such individuals. In addition, the Home Office has introduced a digital right-to-work and rent check service for British and Irish nationals. Employers and landlords can now use an identity service provider (‘IDSP’) to conduct such checks using identity validation technology (‘IDVT’). Unlike for BRP, BRC and FWP holders, manual checks are still permitted for British and Irish nationals.

Electronic Travel Authorisation scheme
The government’s plans for digitisation extend to its borders, which it intends to be fully digital by 2025. The Nationality and Borders Act 2022 has amended the Immigration Act 1971 to provide for the introduction of electronic travel authorisation (‘ETA’) for non-visa nationals.

Concerns over digital-only status
The move towards a digital-only status has been met with strong opposition. In R (The3Million Ltd) v Secretary for the Home Department, the grassroots organisation argued that the UK government’s policy of digital-only status for those granted pre-settled or settled status under the EUSS was discriminatory. In particular, the3million claimed that the policy failed to provide equal opportunities to protected groups on the grounds of disability, age and race. It said that approximately 13,500 individuals over the age of 65 did not have access to the internet, 92,400 disabled individuals were unable to use the internet and 66,000 Roma people were affected. The High Court ultimately refused to give permission for a judicial review challenge of the policy as it had not yet come into effect and was therefore “premature”. The3million is still campaigning against the policy and has set out its proposal on how to “fix” it.

Separately, the Joint Council for the Welfare of Immigrants published an article summarising the risks of digital-only immigration status. It said: “a digital-only status, that provides migrants with no physical documentation risks allowing the Home Office to ‘switch off’ a person’s status and entitlement to services when it decides – rightly or wrongly – that a person no longer has the right to be in the UK.”

In June 2022, the government suffered a defeat after a majority in the House of Lords voted in a Motion of Regret over proposals to scrap physical immigration status in favour of digital-only immigration status. There were concerns over technological inconvenience, complexities, and inaccessibility. Nicholas Trench, The Earl of Clancarty, said: “a digital-only for immigration status ignores real life, it ignores real experience, it ignores real people.”

Digital-only statuses would also strip individuals to whom physical status may be very important – such as those who have been stateless, suffered from modern slavery or been trafficked – of their physical status.

Home Office response
In its “Digital only right to work and rent checks: equality impact assessment”, the Home Office acknowledged the potential for certain groups of people to be indiscriminately discriminated against by the rollout of digital-only right-to-work and rent checks. However, it concluded that this risk could be mitigated against by providing support for those individuals using online services and guidance for employers and landlords. This response suggests that, despite the criticism, the Home Office is intent on implementing a fully digital immigration system. It remains to be seen, however, whether further legal challenges will prevent the realisation of its ambition.

Get in touch
To learn more about forthcoming changes to UK immigration law, see our website, contact your assigned LDI lawyer or email enquiries@lauradevine.com.