The Right to have Rights after Brexit

By Clive Barnett, Kuba Jablonowski and Sam Kinsley, University of Exeter

The United Kingdom’s formal departure from the European Union on 31^st January 2021 involves the removal of rights of UK citizens to free movement and residence in EU member states. At the same time, for EU citizens already living in the UK, it involved the removal of their legal rights to residence previously assured by virtue of the UK’s membership of the EU. After Brexit, EU citizens already living in the UK are now subject to domestic immigration laws and border controls. In short, Brexit is an instance in which the fragility of the right to have rights is laid bare, precisely because it is a process in which the contingency of people’s status as bearers of rights is exposed to view.

The European Union Settlement Scheme (EUSS) is the policy framework and administrative procedure designed to transfer EU, European Economic Area and Swiss residents and family members currently settled in the UK into the UK’s immigration system. This population is estimated at between 3 and 4 million people, but the exact figure is unknown. Operated by the Home Office, the EUSS opened to applications in Spring 2019 and the deadline for residents to apply or lose their status is 30 June 2021. The EUSS runs at least until 2026 to allow for re-applications from those granted only temporary, or ‘pre-settled’ status. As of March 2021, this is around 44% of completed cases. To deal with the volume of applications, as a digital immigration system the EUSS relies on automated checks to establish a trail of documented residence based on insurance, tax, and welfare records. These are held by the Government but were not originally collected for immigration control purposes.

The EUSS will form a key testing ground for the future governance of migration in the UK, providing further impetus to a trend of speeding up and streamlining immigration decision-making. It is also one example of a more widespread process of bureaucratic reform in post-Brexit UK, intersecting with other trends towards the digitalisation of administrative systems across government and the public sector in the UK and globally.

In a new research project, ‘Algorithmic Politics and Administrative Justice in the EUSS’, funded by the ESRC as part of its Governance After Brexit Programme, we take the evolution of the EU Settlement Scheme (EUSS) as an empirical entry-point to explore how practices of administrative justice are being reconfigured by the interaction of automated information processing systems with rights-based practices of monitoring, advocacy and litigation.

As the prime example of digitalization of immigration control in the UK, the EUSS has generated controversy concerning the alignment of its automated procedures with principles of administrative justice. These controversies are publicly articulated through the interaction between government agencies, statutory monitoring authorities, EU representatives, and civil society organisations. The core issue in these controversies is the dependence of the EUSS on automated checks to establish a trail of documented residence for each applicant, based on insurance, tax, and welfare records held by the Home Office, HMRC, and DWP. An algorithmic data system guides decision about each applicant’s status. For a variety of reasons, significant numbers of people are at risk of failing to secure their rights under the new system. The Covid pandemic added further concerns about the accessibility of the EUSS during lockdowns, and about the impact of pandemic-related absences from the UK on applicant’s immigration status. And once granted, this status is digital-only since no physical proof is issued to most applicants.

The operation of the EUSS is characterised by a systematic asymmetry between the administratively efficient processing of information and decisions, and a lack of accessibility for those engaging the system. The digital design of the EUSS further entrenches a long-standing lack of transparency for applicants already present in immigration systems and further heightened in the wake of ‘hostile environment’ policies in the UK.

Researching claims of injustice in the EUSS

The opacity of decision-making in the EUSS has generated concern around how information is processed in and around the EUSS system, and how it will be deployed by various public and private actors in the future. Public controversies surrounding the EUSS therefore tend to revolve around access to information and the reliability of official reporting: it remains difficult to establish whether there are systematic inequalities in outcomes of applications, and it is therefore difficult to establish grounds for redress and review of the operation of the system.

The operation of the EUSS exemplifies issues at the core of academic and public debates about the intersections between issues of justice, democracy, administration, and the digitalisation of immigration systems in the UK, Europe and globally. Research on the politics of algorithmic systems of administration draws attention to the ways in which digitalised data systems generate potential injustices. The intersection between data systems and issues of justice is usually conceptualised in relation to issues of autonomy, privacy, and systematic bias. Our research starts from a different place, re-conceptualising digital governance as a field of mobilization and contestation, as well as a site of discrimination and injustice. Our analysis of the EUSS is therefore premised on two propositions. First, the digital management of immigration in the EUSS reconfigures issues of equality, fairness, and accountability in systems of immigration control. Second, the digitalization of immigration control in the EUSS reconfigures processes of legal monitoring, representation, and redress through which the responsibilities for administrative justice are enforced.

Furthermore, we do not approach the EUSS as a merely technical mechanism that operates more or less efficiently or equitably. Building on emerging debates about ‘algorithmic accountability’, which broaden analysis to take account of the ways in which digital practices reconfigure organisational capacities to order information, we understand the algorithmic decision-making aspects of the EUSS as situated within wider organisational fields of strategic interaction between various actors. We therefore conceptualise automated algorithmic systems as operating and having effects only in interaction with organisational cultures of decision making, practices of reporting and transparency, and with processes of appeal, monitoring, advocacy, and litigation. In our project, ‘algorithmic politics’ refers to this web of relationships between technical, organisational, legal, and explicitly political practices: we are interested in understanding the dynamic interactions between national government departments (including the Home Office, Foreign Office, HM Treasury, Department of Work and Pensions), independent scrutiny agencies (such as the newly established Independent Monitoring Authority for Citizens’ Rights Agreements), EU representatives (such as by the EU Delegation in the United Kingdom, or the European Commission), campaigning and advocacy organisations such as the 3million and Public Law Project, and a wider range of other actors including local authorities, private sector employers, landlords, and banks.

Our research does not assume in advance that discrimination or injustice is inherent in the EUSS, and nor does it aim to assess the ‘success’ of the EUSS in terms of bureaucratic performance. Rather, we start from the view that publicly articulated claims of injustice around the EUSS serve as the starting point to understand the reconfiguration of governance at a critical juncture of post-Brexit immigration reform. Adopting a priority of injustice perspective, our focus is on the public controversies in which claims about discrimination, fairness, and inequality are articulated and processed. This will help us develop a deeper understanding of the specific forms of harm and grievance generated by the digitalisation of immigration systems.

Our conceptual approach informs the empirical focus of the project upon the interactions between different actors involved in the operation and monitoring of the EUSS. The project traces claims of injustice as they emerge dynamically through the interactions between a series of digital technologies, bureaucratic systems, government agencies, independent statutory bodies, and civil society organisations. As already noted, the algorithmic design of the EUSS renders the system an effective ‘black box’, for applicants as well as for stakeholder and advocacy groups. To open this black box, we will work closely with key project partners involved in the legal monitoring and challenging of the EUSS. In pursuing this research strategy, we aim to develop better understandings of how digital systems of immigration control generate new risks of discrimination, harm and injustice while also generating new opportunities and challenges for actors seeking to realise and reform practices of administrative justice in newly digitalised, post-Brexit contexts.

About the authors: Clive Barnett is Professor of Geography and Social Theory at the University of Exeter and Principal Investigator for Algorithmic Politics and Administrative Justice in the EUSS (funded by the ESRC). He is author most recently of The Priority of Injustice: Locating Democracy in Critical Theory (University of Georgia Press). Kuba Jablonowski is Research Fellow on the Algorithmic Politics and Administrative Justice in the EUSS project, and Lecturer in the Department of Geography at the University of Exeter. Sam Kinsley is Senior Lecturer in Human Geographies at the University of Exeter, and Co-Investigator on the Algorithmic Politics and Administrative Justice in the EUSS project. He is Co-Editor-in-Chief of Digital Geography and Society.