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. 



3 comments:

  1. Scaremongering. Do you realise how irresponsible it is to publish something like this when people are genuinely scared about their future? Most of your 'conclusions' are based off pure speculation.

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    1. All my claims are based an what the government have actually said in published documents - see the links.

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  2. Thank you Michael Ward for this comprehensive state of play analysis, or rather state-of-understanding of how Brexit potentially will affect us EU residents in the UK.

    One more "trifle matter" to add to your list: duplication of costs for residence documentation. I acquired some years ago the Home Office blue card confirming my status as a long term EEA/EU resident in the UK. This at the time was "not" compulsory; in fact, it was well and truly a legal, expensive requirement for those of us who have non-EU partners, as we had to establish our own residence rights in the UK before we could sponsor a partner's visa.

    The thing cost me several thousand pounds, split between Home Office and lawyers fees. My application, back then, was refused because my 5 years' worth of salary slips had not all been repetitively translated, at £40 a sheet, from my employers' French (I used to be paid from abroad). Lawyers held firm, Home Office backed down, lawyers fees are demonstrably an unavoidable part of the cost of the procedure if your life does not strictly conform to model, and most lives don't.

    This "blue card" is now probably worthless --unless the UK Government came to see it as a perfectly reasonable way to streamline procedures and decided to swap it for the forthcoming residence permit on a like for like basis and at negligible cost. I am not holding my breath. The words cash, cow, and milking all come to mind. (Incidentally, this is one of the trifle matters that cause me to demand that the UK should pay, tit for tat, substantial amounts for access to the single market or continued participation in some EU agencies, and in order to promote that view I absolutely will use my postal vote in national and European ballots in my country of origin!).

    One word of respectful dissent from your post, if I may, about the section relating to "The right to free movement (for citizens whose families include UK citizens)".

    It is not correct, in my view, to write that "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". That right remains established in the EU, minus the UK, under the directive on the right to free movement of EU Citizens and third-country nationals forming part of their family. The protection of the law is removed from British statute, it is not removed from the acquis communautaire.

    It is precisely that right which caused Daniel Hannan and his "not truly racist or xenophobic friends" so much aggravation.

    The substantial difference now of course is that, out of respect for the expression of their vote, "democratic" though devoid of a requirement for a qualified majority, Brits in EU law will be regarded as third-country nationals. Just like Russians and Turks.

    The irony of the new situation is priceless.

    Ter Ock

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