2017-10-09

The UK Home Office and our Subject Access Request





If you are an EU citizen resident in the UK you will probably have discovered by now that the UK Government is devoting a huge amount of time and effort towards making your life as difficult as possible.

If, fearing that the Home Office might arrest and deport you one day, you have decided to apply for formal recognition of your right to be in the UK (a right people notionally acquire after five years of living here) you will have discovered that you have to start the ball rolling by filling in an eighty-five page form.

The form asks, inter alia, for dates of departure, dates of return, and number of days away for every absence from the UK since entering the UK. In my wife’s case, this period spans thirty-one years. When I inquired about this requirement, I was assured that we “only” needed to fill this section in for the last five years.

Some time ago, the Home Office put up an online version of this form but many categories of EEA citizens are prohibited from using the online form and will have to use the paper form.

More recently, the Home Office quietly dropped the requirement to list exits and entries from the UK altogether – but only for those who are allowed to use the online form. In any case, EU applicants for naturalization (a different kettle of fish) in the UK also need to list entries to and exits from the UK for the last five years.

There is an added complication here which I should mention. The five years you choose to qualify for permanent residency do not actually have to be the most recent five years. So even if you are “only” filling in dates for five years of trips abroad you may need dates from longer ago than five years.

So how do you go about constructing your list of dates so that you can send them back to the Home Office?

Well funnily enough, the Home Office has a record of all your trips abroad (assuming you use airlines or ferries to travel rather than a rubber dingy across the Channel or whatever) and you can request a copy of this record and use the information therein to fill in your Home Office forms accurately. The Home Office only has records going back five years however so I presume (though I must emphasize I’m not an immigration lawyer) you can just fill in whatever you can remember for earlier years and the Home Office will have no way of checking the accuracy of what you fill in.

This is how we obtained our Home Office records using what’s called a “Subject Access Request” or “SAR”…….

The first thing to note is that, though the Home Office has a special form for SARs. You are under no obligation to use this form – which asks for all sorts of irrelevant information. We just sent them a simple letter:

UKVI (Subject Access Request)
Lunar House
40 Wellesley Road
Croydon
CR9 2BY 
Dear Sir/Madam 
This is a Subject Access Request under section 7 of the Data Protection Act 
I am a  >nationality< citizen who has lived and worked in the UK since >date<. I am currently applying for a permanent residence card which requires me to list all my absences from the UK over the past years. 
Please could you supply all records you possess of my exits and entries from the UK since >date<. 
Yours faithfully 
>name< 
I enclose copies of my passports and driving licence and personal details. Please advise whether any fees are required in connection with this SAR.
The “personal details” we included were:

Name
Previous name
Date of birth
Place of birth
Date of Marriage to >spouse name<
Current UK address
Previous UK addresses
Phone
Email
Port of original entry to UK
Date of original entry to UK

This list reflected our circumstances and included things I could see on the Home Office SAR form that seemed potentially relevant. There seems to be no hard and fast rules about what you need to tell them but obviously they need to be able to identify you.

We also included photocopies of my wife’s birth certificate, driving licence, and all the passports she has used since coming to live in the UK.

Once the Home Office had our SAR, they they asked (expectedly) for a £10 cheque and (unexpectedly) for “certification” of the photo id copies we had supplied:



Now I don’t know about you, but I find the (implied) suggestion here – that a fraudster might have got hold of all my wife’s personal details and copies of all her passports and driving licence and birth certificate and might be using them (rather than to empty her bank account) to fool the Home Office into sending a list of dates to an address which the Home Office knows is ours - rather implausible. Indeed, I’m going to stick my neck out here and suggest that the Home Office are being deliberately vexatious.

I decided I should report the Home Office to the Office of The information Commissioner for non-compliance with section 7 of the Data Protection Act. I filled in the relevant form; attached copies of all the material we had sent to the Home Office, and sent the following covering email:

Dear Sir/Madam 
This concerns a simple SAR for information that the Home Office hold on my wife’s movements in and out of the country over the past 31 years. The Home Office have this information because it is automatically sent to them by the airlines and ferry companies. My wife needs this information because the Home Office require her to provide it when she fills in a form for a residency permit. 
This information is not especially sensitive and would only ever be of use to someone applying for residency – at which point they have to appear in person and produce a passport. 
My wife provided copies of her driving licence, birth certificate and 5 passports and a great deal of personal details. It is preposterous of the Home Office to demand that she obtain the signature of a *solicitor* for these copies before they will process her request. This is more onerous than the requirements for obtaining a driving licence or passport in the first place. The Home Office appears to be behaving in an entirely vexatious and obstructive fashion here. If such practice were adopted generally, SAR would become a right in name only. 
The home Office have also requested a fee – which is fine. But I object to their insistence on resending the whole request rather than simply the cheque for the fee.
I look forward to hearing from you and I hope you can persuade the Home Office to start behaving in more reasonable fashion. 
etc

It seems that the Office of the Information Commissioner were, as I wrote, dealing with a backlog of complaints about the Home Office and was, at that stage, dealing with complaints submitted up to 2017 January 16 - three days before mine was submitted.

Meanwhile we thought we had better find a solicitor and try resubmitting our SAR. At least the Home Office had now supplied a list of requirements that it would be difficult for them to go back on; and fortunately for us, we happened to have a good friend (of over twenty years' standing) who was a solicitor. It “cost” me only a bottle of wine (though a rather good one L) to cover our copies in signatures and rubber stamps that looked sufficiently impressive to intimidate the Home Office into submission.

I dread to think how much a solicitor charging commercial rates would charge for such a service.

We resubmitted out SAR and a cheque for £10:

Andrew Smith
Head of Subject Access Request Unit
Lunar House
40 Wellesley Road
Croydon
CR9 2BY
 Dear Mr Smith 
This is a Subject Access Request under section 7 of the Data Protection Act 
Thank you for your letter of January 16. 
I enclose solicitor-certified copies of my driving licence and passport and a cheque for £10 payable to “The Home Office Accounting Officer”. I also enclose copies of my birth certificate, former passports, and personal details. 
I trust you will now proceed with my SAR. 
To recap: 
I am a German citizen who has lived and worked in the UK since 1985. I am currently applying for a permanent residence card which requires me to list all my absences from the UK over the past thirty-one years. 
Please could you supply all records you possess of my exits and entries from the UK since August 1985. 
Yours sincerely etc
This time around, the Home Office deigned to comply with our request (and the law of the land):




And, just recently, we received our list of dates. (I am not sure why they put “File Copy” across these pages. Perhaps they want to give the impression that they keep the original pages in a drawer somewhere and have made photocopies specially to send to us? I consider it more likely that these pages were generated by someone clicking something on a computer.):





This list goes back only five years, so does not include my wife’s initial entry to the UK, and has her entering the UK two times more than she left the UK. It also records her nationality variously as German, Danish, and British. Otherwise the details seem to be correct – though how complete they are is hard to say. We travel a lot and don’t really keep our own records (though we are well within the days-away-per-year allowed to foreign residents by the Home Office).

At the end was some more general information about the data held by the Home Office:



So there you have it. We now know exactly what data the Home Office hold on us and we also know to keep records of all our trips abroad in future, just in case the UK government introduce even more draconian rules to control the movements of EU citizens. They certainly seem to be planning this.


Later, I finally heard from the Office of the Information Commissioner:

from: casework@ico.org.uk11th March 2017 

Dear Dr Ward 
Thank you for raising concerns about the Home Office. 
 I understand that you have concerns about the ID requirements imposed by UKVI when it receives a subject access request (“SAR”). 
In this case, it appears that adequate certification has not been provided and has therefore UKVI will not process Karin XXXXXXXXXXX's SAR. 
 I can confirm that UKVI has now agreed to accept photo certification for SARs from; Solicitors, barristers, legal executives, registered charities and OISC registered representatives. The photo ID requirement will also be waived if the subject is in detention and UKVI can verify this from its records. 
 This change in policy has come about following the ICO’s engagement with UKVI on this matter. We understand that you believe that asking for a certified ID is excessive in the circumstances but this is UKVI's policy unless the above applies. 
We would advise that certified ID is still a requirement but as stated above it does not now necessarily have to be a solicitor that verifies the ID (see above). 
Therefore, you should now write to UKVI with a verified copy of ID in order to progress the SAR. There are no further actions for us to take on this occasion. 
Thank you for bringing this matter to our attention. 
Yours sincerely
etc

So the easiest way to obtain a list of your trips abroad from the Home Office seems to be to get yourself locked up in a detention centre.

I launched an appeal with the Office of the Information Commissioner arguing that they had let the Home Office off the hook far too easily. I repeated my point that it is utterly unreasonable of the Home Office to insist on copy certification requirements that are far more onerous than the requirements for obtaining the original documents whose copies are being certified.

.This is the reply I received:

Dear Dr Ward 
I am writing further to your case review and service complaint correspondence of 21 March 2017.  
This relates to the data protection concern submitted to the Information Commissioner’s Office (the “ICO”) about UK Visas and Immigration (“UKVI”), which is part of the Home Office. 
Please find enclosed a leaflet which explains how we handle requests for a case review.
The original concern raised with us refers to what you consider are the excessive proof of identity requirements insisted on by UKVI for processing subject access requests under the Data Protection Act 1998 (DPA). Joanna Hoof, the investigating officer, informed you that the ICO had previously engaged with UKVI on an earlier set of conditions imposed and it had been agreed that the rules should be made more accommodating. Under the terms of the agreed policy however your wife would still be required to provide further information and Ms Hoof recommended that your wife supply a verified copy of identification in order to progress the subject access request. 
I understand you remain of the view that UKVI’s requirements are disproportionate and unnecessarily onerous. [my emphasis] On this basis, you have asked us to reconsider our position on this particular case. 
Under the DPA a data controller is entitled to ask for enough information to judge whether the person making the request is the individual to who the personal data relates. As you acknowledge, the use of this mechanism may be an important safeguard for preventing personal data about one individual being sent to another. The key point though is that a data controller must be reasonable about what is asked for. The data controller should not, for example, request lots more information where there is already an ongoing relationship with the individual. 
A policy produced by a data controller which details the conditions for processing subject access requests should be tailored to reflect the nature of the information that is being handled. UKVI will regularly deal with information of a particularly sensitive nature and this is reflected in the strictness of its policy. We accept that as the custodian of confidential personal data it is appropriate for UKVI to have a policy in place which sets out clearly the criteria for dealing with subject access requests. For our purposes however, the demands of the policy should not be such so as to prevent an individual from being able to exercise their access rights in the DPA. 
We consider that the current version of UKVI’s policy, which evolved from changes made in the light of our advice, is generally successful in balancing the rights of the data subject with the need for ensuring there is adequate protection for personal data. I can fully appreciate why you would believe that UKVI’s arrangements are not suitable for your wife’s particular situation. [my emphasis] Yet, in our view it is not only essential UKVI has a robust policy in place but that furthermore, in the interests of fairness, this policy is applied as consistently as possible.[1] For this reason, I am satisfied that Ms Hoof gave you the correct advice. 
A case review is the final stage of the ICO’s case handling process. However, I appreciate that you may disagree with the assessment and our case review. If you remain dissatisfied the enclosed leaflet outlines the options available to you. 
Yours sincerely etc
[1] I have since discovered the the Home Office has a "fast track" system for dealing with SARs that does not involve certification of ID copies so all talk of "robustness" and "consistency" here is entirely fanciful.

2017-09-15

Where do EU citizens in the UK now stand? (clue: not where Daniel J Hannan says they do)



Daniel Hannan MEP was at it again the other day insisting that "the government have made it absolutely clear" that "nothing is going to change" for EU citizens (listen above at about 47 minutes in).

This claim is untrue and Daniel Hannan knows that it is untrue since this has been pointed out to him on many occasions by experts on Twitter - every time he has tweeted something like this in fact:


The Brexiter I have to contradict twice in this clip from the Victoria Derbyshire TV programme seems to genuinely believe this falsehood. He is not, I suspect, untypical:




So what do we know about the future plight of EU citizens living here? What have the government said? And what rights will EU citizens lose?


What have the Government actually "made clear" and where have they made it clear?

On 2017 May 29, the EU Commission published detailed proposals concerning the continuing rights of UK citizens currently living in the EU and EU citizens living in the UK - basically calling for full continuing rights (though they have backtracked somewhat since).

The UK government described these "demands" as "ridiculously high" and published its own "lower" counter proposals on 2017 June 26.

The Home Office also regularly puts out statements on its website and sends out emails on the subject which you can register for here.

There is also the infamous leaked Home Office post-Brexit immigration policy draft document and this COMPARISON OF EU/UK POSITIONS ON CITIZENS’ RIGHTS spreadsheet

Until any of these statements and proposals are actually enshrined in law or in a signed agreement with the EU, it would be rash for anyone to rely on them, but they are all we have to go on at the moment. Assuming the UK government get their way - a big assumption - this is what EU citizens have to look forward to:


Will EU citizens living here be allowed to stay?

The key statement is this one from the 2017 September 01 Home Office email  (though versions of it have appeared in many other sources):
No EU citizen currently in the UK lawfully will be asked to leave at the point we leave the EU.
This suggests that EU citizens here unlawfully may well be expelled, and leaves open the possibility that even those here "lawfully" may be asked to depart at some point after we exit the EU.

A problem here is that the UK Home Office has its own definition of "lawful" - one that the EU has described as "unlawful". This all gets rather complicated but, basically, the Home Office has decided that EU citizens who are home makers or are studying here without "Comprehensive Sickness Insurance" are here "unlawfully". They have said that it is “longstanding practice” not to remove EU citizens lacking such insurance, but they have used this "requirement" as the basis for refusing "permanent residency" to huge numbers of those who have applied.

Meanwhile, the Government have announced that permanent residency will in any case be abolished and that all those granted it (and those refused it and those who never applied for it) will (assuming they have been here five years or more) have to reapply for something called "settlement". The government have also - more promisingly - indicated that "Comprehensive Sickness Insurance" (which anyway remains undefined) will not be required for "settlement" applications.

Also, those already here, but here for less than five years, will be able to hang around until they have been here five years (though it's unclear how safe it will be for them to travel abroad in the meantime)

But everyone will, at some stage, have to apply for settlement, and significant  numbers (if the permanent residency application statistics are anything to go by) will have their applications refused. Since "settlement" has yet to be defined, we have no idea what hoops applicants will have to try and jump through. We do know that not everyone will be able to jump high enough to satisfy the Home Office. Moreover, some people will just never get around to applying or (thinking for example of vulnerable elderly people) be unable to do so. Applying for anything from the Home Office is onerous, complicated, time-consuming, and expensive. People without settlement papers face, at some stage, being asked (or told) to leave.

Moreover, it has yet to be made clear whether the nationals of Norway, Iceland, Lichtenstein and Switzerland will come under this new system.

In summary then, most EU/EEA citizens living here will be probably be allowed to stay. A significant minority will not.


What rights will EU citizens who do stay lose?

The right to vote?

(Trick question)

Actually, despite what Daniel Hannan (as cavalier with the facts as ever) has to say in the above LBC video, EU citizens in the UK won't (assuming the UK gets its way) lose the right to vote in local elections but (assuming the EU gets its way) UK citizens in the EU will. [see Voting Rights] (EU citizens never had the right to vote in national elections in another country.) The problem for Brits in the EU is that voting rights there depend on EU citizenship and UK citizens are to be stripped of their EU citizenship by the UK government. 


The right to go abroad for more than 2 years


An EU citizen who goes abroad (to the EU or elsewhere) for 2 years or more will lose his or her settlement status. The UK has said it is prepared to "offer flexibilities" here. In practice, however, the Home Office tend to be about as flexible as a granite worktop when it comes to dealing with migrants.

This means an end to EU citizens' abilities to be posted overseas, study in another country, or care for a dying elderly relative back in the country of origin.


The right to fall in love with a foreigner


Ian Dunt, in the above LBC video, talks about the plight of an EU citizen who has the misfortune to fall in love with someone from another non EU country after Brexit. In fact, foreign spouses will - post Brexit - be dealt with under the same rules regardless of whether they are EU citizens. The income requirements and other rules make it extremely difficult - often impossible - for UK citizens to marry a foreigner and have that foreigner join them in the UK. Many families are torn apart as a result. These rules will now be visited EU citizens living here - even if they fall in love with someone from another EU country.


The right to provide care for an elderly parent in failing health


Take a family such as my own. My German wife has lived with me in the UK for 32 years. My parents and my father in law have already died. My mother in law still enjoys good health but is not getting any younger. One day her health will begin to fail and she may require the care of family members. Just as she will lose any right to come and join us in the UK, I shall lose the absolute right to accompany my wife to go live there. My wife could go and live in Germany for a while without me, but if she needed to stay for more than 2 years she'd lose the right to return here.

The right to enforce any of the rights notionally granted by the UK


As things stand now, any EU citizen living in another EU country and denied their rights in that country can ultimately rely on a supranational body - the European Court of Justice - to adjudicate between different nations of the Union and require any of those nations to fall into line if they fail to adhere to the rules they have signed up to. Since Theresa May refuses to allow any post Brexit role for the ECJ, this implies that EU citizens will be at the mercy of the UK authorities and any unilateral post-Brexit changes those authorities may make to rules agreed with the EU. The record of the UK authorities does not inspire confidence - see also Home secretary ignores court order and sends asylum seeker to Kabul.


The right to free movement (for citizens whose families include UK citizens)


An EU citizen with a UK spouse or with children who took up UK citizenship will - as long as he or she wishes to be accompanied by the rest of her family - lose the right to move freely in the other EU member states. (Of course UK citizens are EU citizens too - for now - and will all lose the right to move freely in 27 other countries as a result of Brexit.)


The right to travel using an ID card rather than a full passport


In addition to applying for settlement papers from the UK authorities, EU citizens will all be forced to obtain full passports from their own countries. Huge numbers of EU citizens travel within the EU using only their ID cards and never bother obtaining a passport.


The right to live in the UK without a UK ID card


EU citizens granted settlement will then have to carry a UK ID card to distinguish themselves from EU citizens who do not have settlement and its associated rights. Of course many EU (though not all) citizens have to have ID cards in their countries of birth, but before you  dismiss this as a complete triviality, it would be well to recall that David Davis resigned his seat  over the erosion of civil liberties represented by (inter alia) the Identity Cards Act 2006.


De facto rights 


As the Home Office website has it:





Their insertion of the word "broadly" rings a few alarm bells but let us assume (as Daniel H does) that EU citizens' de jure employment, property, healthcare, study, and welfare rights (in the UK) will remain essentially the same.

What will happen in practice?

Employers, landlords, health workers and other officials (not border officials) are the ones who are going to have to police the treatment of EU citizens. They will be called upon to discriminate reliably between:


  • people who've been here 5 years and got settlement,
  • people who've been here 5 years and not yet got settlement,
  • people who've not been here 5 years yet but arrived before Brexit,
  • people who've arrived post Brexit but have work permits,
  • and people who've arrived post Brexit but have no permits.


Employers will also have to pay a large fee to the government whenever they employ an EU citizen rather than a UK citizen - as they have to do for non-EU workers at the moment - and will be subject to criminal penalties if they get any of this wrong.

Clearly all this will be a nightmare and all EU citizens will suffer a de facto diminution in rights as a result. 


Conclusion

Every so often, Daniel Hannan's mask slips:


And we get a true insight into what motivates Brexiters.

Most Brexiters are not truly racist or xenophobic, but they all suffer from a kind of inability to empathize with groups of people they see as "other"; and they preserve that state of mind by embracing a kind of denialism about the plight of those who will be most cruelly affected by their schemes. 


Such are the people who have "taken back control" - not just over the lives of EU citizens trying to make their lives here but over all our lives. 

I rather preferred it when my wife and I had some control over our own lives. 



2017-07-15

Using Car2Move at Catania Airport Sicily

Some (I hope constructive) criticisms and helpful information for others who may follow in our footsteps.

We booked Car2Move through AutoEurope - providing estimated times and our flight details.

Our flight was delayed, our bag was the last on the carousel, and we then had to find the Car2Move Office.

Our voucher said Car2Move was in the terminal. It isn't. There are  a number of car rental offices in the terminal but many others (including Car2Move) are in another building a 10 minute walk away. There are no signs in the terminal  pointing to this other building and the staff on the information desk in the CTA terminal are rude and unhelpful. We finally found out where to go from a kind and helpful man in the "Tourist Information Office".

So we arrived at the Car2Move desk about an hour late. There was nobody there. We waited for about 45 minutes. Nobody came. Nobody answered the phone. We rang AutoEurope in the end - who did answer and who offered to inquire and ring back - which they did. Whether because of this or just because he had decided to come back anyway in case somebody showed up wanting to hire a car, the man at the Car2Move desk finally reappeared.  He was unapologetic – blaming our lateness for the situation (as I’ve pointed out, our lateness was not our fault and could have been reasonably anticipated by a car rental firm operating from an airport).

Anyway, he was still able to find us a car – which I think was a slightly better category than what we had ordered (though I’m not a car person :-). It was covered in scuffs and scratches, but these were all properly recorded.

He explained how to get out of the airport and stressed that we would have to return it on time. Since I would be driving myself (rather than at the mercy of an airline) I indicated that this would not be  a problem. He did not explain how to return the car. I suppose we should have asked.

All went well with the rental and the day before our departure I looked online and amongst the various bits of paper we had been given for return instructions.  There were none. So we just drove to the airport and hoped for the best.

As you drive in, there are mysterious signs for “R1” and “R2” but no indication of whether Car2Move is R1 or R2.  In any case. These signs soon stop and you have to choose between “Arrivals” or “Departures”. We chose Departures – we were, after all, departing from CTA.

I then just followed my nose – trying to avoid any signs for car parks and follow any signs for car rental (which were all other firms) - and suddenly saw a turn off to the Car2Move office, which I took.

The same chap was there and he was behind the counter this time. His demeanour was again one of politeness and friendliness - mixed with insouciance and slight arrogance. He took me outside and showed me a several-meter-square sign for “car rental return” which did have the Car2Move logo on it and which indicated the turn off just before the one we had taken.

Later I stood in the position our car would have been as it came off the roundabout just before this sign and realized that the sign was almost completely occluded by a portakabin. The huge sign you can see from the roundabout exit position points to “VIP Parking”. We were clearly not the first to make this mistake and will not be the last.

I was able (by ignoring the “one-way” signs) to extricate myself from the carpark in front of the Car2Move office and drive to the correct drop off area.

The chap met us there and dealt with us perfectly professionally.

Armed with the knowledge I now have, I suppose I would use Car2Move at CTA again (just). They were good value, supplied us with a working car, and didn’t try to fleece us in any way – something I’ve sometimes had with other firms. But there is scope for improvements to their operations at Catania Airport.

2017-06-26

You May Ask Yourself: How did we get here? (Today's announcement on EU citizens in the UK)

On 2017 May 29, the EU Commission published detailed proposals concerning the continuing rights of UK citizens currently living in the EU and EU citizens living in the UK.

Today (2017-06-26) the UK will finally publish its response.

Almost everything else you may have read concerning the positions and moves of the two sides was misreported hand-waving or, in some cases, outright lies.

Exhibit A:

Even the anti-Brexit newspapers have tended to report this issue badly. It is all rather more complicated than many realized and the lacuna in understanding has often allowed politicians to get statements published that really should have been subjected to a bit more scrutiny.

So how did we get here?

It has been reported (and not actually denied by May if you listen to her "rebuttal") that in summer 2016 Theresa May "single-handedly blocked a plan to immediately guarantee the future rights of the 3m EU citizens". Every other member of the cabinet seemingly opposed this move.

So why did she do this?

As Peter Grant, an official in the free movement policy team of the immigration and border policy directorate of the Home Office, put it: “Agreeing a unilateral position in advance of these negotiations would lose negotiating capital with respect to British citizens in EU member states and place the UK at an immediate disadvantage”. Whether EU citizens were to be negotiating capital against what the EU might do to UK citizens living in the EU or negotiating capital in our discussions over our future trading arrangements was never made clear. But neither interpretation makes any sense in the light of subsequent developments.

The problem with the first interpretation is that the EU has consistently said that it wanted full continuing rights. The Vote Leave campaign said they wanted this too and On 2016 June 1, they issued the following statement signed by Boris Johnson, Michael Gove, Gisela Stuart and Priti Patel:

There will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present.[ref]

But Theresa May and the current cabinet never accepted this line and when the EU Commission published its call for EU and UK citizens to be granted indefinite leave to remain in the UK or EU and for them to be treated no less favourably than they are at present, David Davis described these demands as "ridiculously high".

In other words, the UK was (on this interpretation) using EU citizens as bargaining chips in a dispute where the other side wanted to give more rights to UK citizens in the EU than we are prepared to allow them to have (assuming symmetry with EU citizens here). It was a kind of looking-glass version of going to buy a second hand car and threatening to offer more than the asking price.

So what about the second interpretation: EU citizens were to be negotiating capital in our discussions over our future trading arrangements?

This makes no sense either. May has at least consistently said that she wanted to discuss citizens rights at the earliest opportunity. Agreement on new trading arrangements with the EU is probably years away. Moreover May, having first insisted that citizens rights had to be part of the overall negotiations, then tried to separate this issue out from the other issues and have "pre-negotiations" (before submitting Article 50) with Angela Merkel. (Nearly all the reports of this event were misleading; this is probably one of the slightly less misleading reports by the Independent.) But this was always going to be a non-starter:

  1. The remaining 27 countries in the EU were anxious - given the referendum result - for Article 50 to be submitted as soon as possible and refused to take Brexit seriously or start preparing for it until Article 50 was submitted. Any "pre-negotiations" might have been a waste of time and might have delayed the start of real negotiations still further.
  2. How individual EU countries deal with non-EU citizens (as UK citizens will become) has largely been a matter for each individual EU country - think of how we deal with (say) Australians. So any kind of sensible post-Brexit outcome required that the EU27 reach a new agreement among themselves about what they were all going to do before they could even begin to talk to the UK. The idea that Angela Merkel could somehow negotiate on behalf of the EU27 prior to Article 50 was simply fanciful.

In the event, the entire EU27 (not Angela Merkel somehow acting alone) stood firm and refused to discuss anything until the UK legally committed itself to Brexit.

Then on 2017-06-22, the pro-Brexit press (and even some of the anti-Brexit press) announced that "No EU national currently living lawfully in the UK will be made to leave on the day of Brexit under proposals outlined by Theresa May".

Of course May had announced no such thing.

First of all, May was simply describing the UK's negotiating stance. If negotiations fail, EU citizens in the UK will still have no guarantees at all.

Secondly, May was not saying she would grant residency to EU citizens, she was merely saying they would be able to apply for residency. EU citizens can apply for permanent residency now, but about one third are being refused by the Home Office.

Thirdly, we should note that May said that citizens here "lawfully" will be able to apply. The UK Home Office has its own (let us be polite and call it "eccentric") interpretation of "lawful" in this context. I explain this issue (and others) here.

And fourthly, this is just an announcement. We should only take it seriously when the White Paper is published and provided to the EU.

So EU citizens are still a long way from knowing what their fate will be. The Government have made some suggestions - relevant to people who have been living here for less than five years - which are broadly reassuring but has so far said little about how it will define "living here". The government keep hopelessly inadequate records of when people enter and leave the country; people living here have often thrown away their own records - there was no requirement to keep them until now; and because the UK has no official system of registering people at their addresses there is no single criterion of residency that the Home Office can use. The current system is simply unfit for purpose and it would be quite impossible for the Home Office to process 3.2 million people in time for Brexit using this system; even if there were good will on the part of the Home Office - which there isn't.

It will be interesting to see whether (and how) the UK Government addresses these issues in the White Paper to be published this afternoon.

Watch this space!

Breaking

May has announced the the "requirement" for EU many citizens to have Comprehensive Sickness Insurance has been axed - though see "point 22" below.

May repeated the nonsense that her offer is somehow contingent on the EU "reciprocating" even though she knows full well that the EU have already offered more generous terms.

White Paper published.

from point 6)

Furthermore, we are also ready to make commitments in the Withdrawal Agreement which will have the status of international law. The Court of Justice of the European Union (CJEU) will not have jurisdiction in the UK;
[the battle lines are drawn, but I think the UK will have to accept some kind of supranational arbitration "court" - and seems to acknowledge this.]
qualifying EU citizens will have to apply for their residence status. The administrative procedures which they will need to comply with in order to obtain these new rights will be modernised and kept as smooth and simple as possible;
[promising but vague]
the application process will be a separate legal scheme, in UK law, rather than the current one for certifying the exercise of rights under EU law. Accordingly we will tailor the eligibility criteria so that, for example, we will no longer require evidence that economically inactive EU citizens have previously held ‘comprehensive sickness insurance’ in order to be considered continuously resident;
[This is the most welcome proposal in the entire White Paper presented within the most mendacious paragraph in the entire White Paper - possibly the most mendacious paragraph in any paper ever. To clarify, not only is ‘comprehensive sickness insurance’ not required by EU law, the UK is in breach of EU law in insisting on ‘comprehensive sickness insurance’ for some categories of EU citizen who apply for residency - people who perfectly legally use the NHS]
family dependants who join a qualifying EU citizen in the UK [...] after our exit will be subject to the same rules as those joining British citizens or alternatively to the post-exit immigration arrangements for EU citizens who arrive after the specified date;
[this represents a clear loss of rights and will be opposed by the EU]
EU citizens with settled status will continue to have access to UK benefits on the same basis as a comparable UK national under domestic law;
[some good news]
the UK will continue to export and uprate the UK State Pension within the EU;
[more good news]
the UK will continue to aggregate periods of relevant insurance, work or residence within the EU accrued before exit to help meet the entitlement conditions for UK contributory benefits and State Pension, even where entitlement to these rights may be exercised after exit;
[I assume this means people (UK or EU) who leave (or who have already left) won't have to abandon their accrued pension contributions in the UK.]
The UK will seek an ongoing arrangement akin to the EHIC scheme as part of negotiations on our future arrangements with the EU;
[I suppose this is good news but it sounds as though we may lose the EHIC system for a few years before a new one is in place]
we are planning to set up an application process before we leave the EU to enable those who wish to do so to get their new status at their earliest convenience. For those who have already obtained a certificate of their permanent residence, we will seek to make sure that the application process for settled status is as streamlined as possible.
[In other words, people who have already obtained permanent residence will have to start doing battle with the Home Office all over again]

from point 12)

After the UK leaves the EU, free movement will end but migration between the UK and the EU will continue. We will continue to welcome the contribution EU citizens bring to our economy and society; the UK will remain a hub for international talent. The Government is carefully considering a range of options as to how EU migration will work for new arrivals post-exit and will publish proposals as soon as possible, allowing businesses and individuals enough time to plan and prepare.
[I think this means they haven't got a clue yet what they are going to do to "control" EU citizens, but I'm sure highly skilled people will want to come here in droves to take up our offer of being deprived of the right to a family life]

from point 15)

The Government will not discriminate between citizens from different EU member states in providing continuity for the rights and entitlements of existing EU residents and their families in the UK.
[I think this means: we all know nobody really minds French and German people and are really only bothered about getting rid of all those dreadful Eastern Europeans but if we did that it would seem a bit racist so I'm afraid we'll have to treat them all the same for now.]

from point 16)

The UK fully expects that the EU and its member states will ensure, in a reciprocal way*, that the rights set out above are similarly protected for UK nationals living across the EU before the specified date. Firstly, UK nationals in the EU must be able to attain a right equivalent to settled status in the country in which they reside. Secondly, they must be able to continue to access benefits and services across the member states akin to the way in which they do now.
[*Gosh. If they expect that, maybe they've finally read the document the EU published on May 29? Though to be truly "reciprocal" the EU would have to reduce the scope of the rights it is suggesting for EU citizens in the UK and UK citizens in the EU.]

from point 17)

All EU citizens (and their families) in the UK, regardless of when they arrived, will, on the UK’s exit, need to obtain an immigration status in UK law. They will need to apply to the Home Office for permission to stay, which will be evidenced through a residence document. This will be a legal requirement but there is also an important practical reason for this. The residence document will enable EU citizens (and their families) living in the UK to demonstrate to third parties (such as employers or providers of public services) that they have permission to continue to live and work legally in the UK. Following the UK’s exit from the EU, the Government may wish to introduce controls which limit the ability of EU citizens (and their families) who arrive in the UK after exit to live and work here. As such, without a residence document, current residents may find it difficult to access the labour market and services.
[This means: if you have a foreign accent you'll have to carry an id card in the UK from now on just in case.]

from point 22)

The scheme we establish for applications from EU residents (and their families) for permission to stay will not be legally the same as the one which is currently available for those wishing to obtain confirmation of their residence status under the Free Movement Directive. The UK will no longer be bound by this Directive and will tailor the eligibility criteria, subject to any provisions contained in the agreement with the EU, to suit the demands of this unique situation. For example, we will no longer require evidence that economically inactive EU citizens have previously held ‘comprehensive sickness insurance’ in order to be considered continuously resident. This will apply only for the purpose of determining their residence status: we will seek to protect the current healthcare arrangements for EU citizens, for example, to allow a tourist or student who presents a valid European Health Insurance Card (EHIC) to be able to get treatment on the NHS.
[I have no idea what this means but it sounds very ominous. Perhaps they've not done away with the "comprehensive sickness insurance requirement" after all?]

from point 23)

it will be impractical to issue a very high volume of residence documents immediately when the UK leaves. We need to avoid a legal gap between the end of free movement rights and the point at which individuals apply for and obtain UK immigration status. The Government will bridge this gap so that EU citizens (and their families) already living in the UK will be able to continue their residence despite not yet having obtained their longer-term permission to stay, and accompanying residence documents, from the Home Office.
[= yeah we're finally beginning to realize that this Brexit malarkey is quite difficult and we won't be able to do it all in time so well give everyone a couple of years to do battle with our Home Office to get all the bits of paper before we actually start throwing people out.]

from point 37)

There is no need for EU citizens to seek residence documentation now under the current free movement rules. These documents confirm that EU citizens are exercising their free movement rights in another member state. As free movement rights will end on the UK’s exit, we intend to introduce a replacement scheme under UK law. EU documents certifying permanent residence will not be automatically replaced with a grant of settled status, but we will seek to make the application process for settled status as streamlined as possible for those who already hold such documents.
[= Those of you who spent 100s of hours applying for permanent residency under our current system will have to start all over again and pay us even more fees. It's your fault for being foreign and believing the assurances we gave you :-P]

Conclusion

I give them 6/10 for this. On the one hand there is some kind of recognition of the complexities of the situation and some recognition that foreigners - even foreigners from the dreadful EU - are people too. The procedures for all these people to obtain the required bits of paper will be simplified and not made prohibitively expensive and most EU citizens will - if their applications to the Home Office are successful - keep most of their existing rights.

On the other hand (contrary to what Vote Leave promised) there will be huge changes for EU citizens already lawfully resident in the UK; those citizens will not be granted anything automatically; and they will be treated far less favourably than they are at present. Let us take a specific example:

My parents are both dead. My mother in law, in Germany, is however fit and well - though not getting any younger. She may eventually need her family to look after her. Who knows what the future may bring? Suppose the task of taking care of my mother in law falls to my wife and I. My government is about to strip me of my EU citizenship and thus of my right to go and live in Germany whenever I please. At the same time, our government will strip my wife of her right to bring her mother to live out her remaining years here in the UK. Of course we could apply for my mother in law to come here or we could apply for the right for me to go there; but there is no guarantee our applications would be successful and this is not the same of being able to choose to go there tomorrow.

May has kindly said that she is not intending to split up families; so what does she suggest someone in the situation I describe should do?

However, May's indifference to the plight of people in the situation described is not matched by the EU. I hope and expect they will tell May to implement exactly what was promised by the Vote Leave campaign and give resident EU citizens rights equivalent to what they had before the Brexit vote. It will be interesting to see how she reacts.

2017-06-06

Good Times, Bad Times, Brexit Times

We may, we are told, get a good deal or a bad deal with the EU or may walk away with no deal at all. Walking away with no deal, many claim, may be better than a bad deal.

And it is not just staunch Brexiters who make such claims. Even sober remainers like John Rentoul bandy them about:


But before we can even begin to discuss such claims we require some kind of shared understanding of what is we are going to “deal” about and what might constitute a “good” or “bad” outcome. I see little evidence that any such shared understanding exists.

Our opening gambit

Theresa May (who I presume will win the election) has already announced that we wish to leave the Single Market (SM), the Customs Union (CU) and end Freedom of Movement (FoM). We shall presumably get everything May wants here since the EU sees these as the main advantages of the EU rather than as penalties for being in the EU.

Will this be good or bad?
  • Leaving the CU will result in more red-tape, delays, and expense for exporters and importers thereby making trade more difficult and, in some areas, infeasible. It will result in less trade with the EU which will, all other things being equal, make us poorer.
  • Leaving the SM will prevent us trading in some goods and, especially, services altogether and will result in more red-tape. This too will result in less trade with the EU and will, all other things being equal, make us poorer. Probably a lot poorer.
  • EU students contribute massively to our economy and EU workers are, on average, more likely to be working and less likely to be old, sick, disabled, or claiming benefits. EU migrants are a net benefit to our economy. Stopping them coming will, all other things being equal, make us poorer. We are also abolishing our own rights to work, study, and retire in 27 other countries.
I assume we all agree that poorer and fewer rights are bad? So are there any good things here?
  • Leaving the CU will allow us to make new trade agreements with other non EU countries. Many Brexiters think that the UK, though much smaller than the EU, will eventually be able to forge new trade deals that are better than the EU has ever been able to negotiate. Such new deals might eventually, they argue, compensate for some of our loss of trade with the EU. More trade (whoever it is with) will, all other things being equal, make us a bit richer. I assume we all agree that richer is good.
  • Leaving the SM will allow us to reduce the number of EU migrants coming here. To find that good, your dislike of EU citizens has to be sufficiently strong that you are happy to significantly lower your living standards in order to stop them coming here.
  • Ending freedom of movement will reduce the number of EU migrants coming here. See above.
As has been noted, we shall get everything “we” want on these issues and how good or bad you find this depends on your optimism about our ability to forge trade deals and how strongly you dislike foreigners.

There is, then, no difference thus far between a good deal, a bad deal, or no deal.

So what will we actually be arguing about when we do start to deal with the EU?

Item one: The rights of EU citizens in the UK and UK citizens in the EU. 

The EU has said:
Safeguarding the status and rights of the EU27 citizens and their families in the United Kingdom and of the citizens of the United Kingdom and their families in the EU27 Member States is the first priority for the negotiations because of the number of people directly affected and of the seriousness of the consequences of the withdrawal for them. The Agreement should provide the necessary effective, enforceable, non-discriminatory and comprehensive guarantees for those citizens' rights, including the right to acquire permanent residence after a continuous period of five years of legal residence.
David Davis has described these “demands” (detailed here) as 'ridiculously high' . “Ridiculously high” means, I suppose, “bad” but Davis has not really said what would be good. Perhaps, the ultimate good deal here would be zero rights for EU citizens and 100% rights for UK citizens and Davis hopes for a compromise somewhere between these extremes? Except that millions of EU citizens here have families and children and spouses who are UK citizens and whose rights will also be hit by any diminution of the rights of those citizens. And I am not even sure that there is a majority in the UK (even in its current mood) who would find it good to expel any EU citizens currently here legally or (more likely) make it practically impossible for them to continue living here. There is also little sign of the EU giving any ground at all on continuing rights for existing citizens in the “wrong” countries.

No deal would be disastrously bad for the three million EU citizens living here (and their families). They would, by default, instantly lose their legal rights to continue living here. On the other hand, I suppose the more xenophobic elements of UK society would be overjoyed - ie think this to be good. But I have little idea how good and bad deals on this issue would differ in the minds of the UK government or the majority of UK voters.


Item two: Our balance of assets and obligations – the “divorce settlement”

As the EU puts it, rather blandly:
An orderly withdrawal of the United Kingdom from the Union requires settling the financial obligations resulting from the whole period of the UK membership in the Union. Hence, the methodology for the financial settlement based on the principles laid down in section III.2 has to be established in the first phase of the negotiations.
This is an easy one. It really is a “zero sum game” ...... well unless, I suppose, you are a retired British EU civil servant whose pension comes from the EU or a scientist who has just secured several years’ research funding from the EU ……

But all that aside, a good deal would have us pay very little, a bad deal would have us pay lots, and no deal would have us pay nothing.

The problem is: what would happen then? After all, the sums involved pale into insignificance beside the sums we make from trading with the EU.

Item three: Goods placed on the market before the withdrawal date 

I have no idea. Have you? Has our Government?

Item four: Ireland

In line with the European Council guidelines, the Union is committed to continuing to support peace, stability and reconciliation on the island of Ireland. Nothing in the Agreement should undermine the objectives and commitments set out in the Good Friday Agreement and its related implementing agreements; the unique circumstances and challenges on the island of Ireland will require flexible and imaginative solutions. 
Basically the UK Government wishes to close our border to the free movement of people, goods, and services at Dover but keep our border open to the free movement of people, goods, and services in Ireland.

I suppose a good deal would be any solution that worked. I am buggered if I can think of one. Every deal I can imagine – even using the full flexibility of my imagination - will be bad. Walking out of the negotiations would inevitably result in border controls – which would be really really bad – and enforcing those controls would be the responsibility of the UK under WTO rules and of Ireland under EU and WTO rules.


Item five: Cyprus 

Again I have no idea.


Item six: Union's interests in the United Kingdom 

No idea

Item seven: Overall governance of the Agreement 

Tricky. Any deals we make will have to have some kind of enforcement mechanisms. Even the WTO has dispute resolution “courts” to settle disputes between nations. Bad (for us it seems) = European Court of Justice arbitrates disputes. Good = ? – we have not said. No deal avoids this problem I suppose, but again, what then?

Item eight: A common approach towards third country partners, international organisations and conventions in relation to the international commitments contracted before the withdrawal date, by which the United Kingdom remains bound. 

It gives me a headache even thinking about this so I am not going to.

Item nine: Our future relationship with the EU

I assume this is the item most people have in mind when they talk of good or bad “deals” with the EU.

The EU puts it thus:
As soon as the European Council decides that sufficient progress has been achieved to allow negotiations to proceed to the next phase, there will be new sets of negotiating directives. In this context, matters that could be subject to transitional arrangements (i.e. bridges towards the foreseeable framework for the future relationship) will be included in future sets of negotiating directives in the light of the progress made. This approach will allow an efficient allocation of the limited time that Article 50 of the Treaty on European Union imposes for the conclusion of the Agreement by avoiding the need to address the same matter several times at different phases of the negotiations.
In other words, once we have sorted out all the other stuff, we can start discussing a new Free Trade Agreement (FTA) with the EU – something along the lines that Canada has just negotiated (after many fraught years). Such an FTA would allow us lower or abolish tariffs on both sides (without contravening WTO rules) and to agree a new regulatory regime.

Many people seem to fondly imagine that the EU will, at this stage, offer all sorts of special favours to us that will allow us to carry on as though we were still part of the CU and SM for certain purposes. I may be proved wrong, but this seems vanishingly unlikely. They have repeatedly said "no cherry-picking" and May accepted this in her Article 50 submission.

Since it will be impossible to conclude an FTA in the months left before we Brexit, it would seem to be prudent that we agree transitional arrangements that continue the status quo until the new trade agreement is in place. But is anyone being prudent?

Any deal on mutually reducing tariffs would be better for us (and the EU) than no deal. But no possible deal will be anything like as good (for trade) as what we have now.

Even if we storm out of the talks in a fit of pique, I expect we should eventually come back to the table and forge a deal on tariffs with the EU. Any such deal will help to mitigate our exit from the CU and the SM. But since tariffs are among the very least of our worries, the mitigation will be rather slight.

#######

So given the UK’s stance, walking away or staying in the negotiations will (details aside) yield almost exactly the same eventual outcome: loss of the advantages of Free Movement, the Single Market, and the Customs Union and perhaps, in their place, some kind of free trade deal for some goods and services. The best possible free trade deal will allow far less trade with the EU than we enjoy now and provide scant compensation for what we are losing.

Whether you regard this a as good or a bad arrangement would seem to depend entirely on how much you value your prosperity versus how much you value not having as many European foreigners as neighbours; and the notion that Theresa May can make a significant difference to this longer-term outcome by getting a good or bad FTA deal in the coming negotiations is fanciful.

In the meantime, and returning to the details, we do, however, have the opportunity to seriously fuck up the lives of millions of people, UK agriculture, the supply of perishable goods, our international standing, the situation in Ireland, and our short-to-medium term economic prospects if we simply walk out of the talks.

It is simply not within the EU’s power to punish us any harder than we are punishing ourselves by leaving the CU and SM and ending FoM so we have nothing to lose by pursuing an FTA with them. Our overall new deal with the EU will inevitably be a bad deal but no matter how bad any new FTA deal is, it will be slightly better than no deal at all.