2018-02-01

Theresa May, Transition, and Citizens' Rights




Theresa May does not want EU citizens who arrive in the UK after Brexit day (2019-03-31) to be allowed to remain in the UK.

Why, given that we shall have left the EU by then, is this such a big problem and a potential deal breaker for the EU?

I offer a simplified explanation of the core issues below:

The UK has asked for, and the EU has offered, a two year "transition" on condition we accept the full acquis (the accumulated legislation, legal acts, and court decisions which constitute the body of European Union law) and European Court of Justice (ECJ) jurisdiction for that period. The EU does not want to set about changing its laws and procedures twice: once when we go into transition and again when we exit transition.

Let us assume both sides agree to transition on these terms. Until May’s intervention they almost seemed to have done so.

So on the morning of 2019-04-01 we enter transition. We have left the EU but are still governed by EU law. Four EU citizens - Mary, Tom, Dick, and Harry - apply to the Home Office for residency papers. Mary has been here thirty years, Tom four years, Dick one year, and Harry as just arrived on the morning flight from Utrecht.

The UK government has announced that it wishes all EU citizens to be registered as quickly as possible so Mary, Tom, Dick, and Harry do not want to waste any time.

Mary, who has been here for much longer than five years, applies for and gets a “Permanent Residency” certificate[i]. Tom, Dick, and Harry, who have all been here for less than five years, apply for and get "Residency" certificates. These two species of certificate represent the only statuses EU citizens resident in the UK can have under EU law.

Tom, Dick, and Harry now look up what "Residency" means on the EU Commission website. The website basically says that, if they fulfil certain conditions, they can remain where they are apply for Permanent Residency once they have been resident in their chosen country for five years. Remember here, the UK is still operating under EU law and EU law has not been changed.

Come 2020-04-01, Tom applies for and gets his Permanent Residency certificate. Again, we are still under EU law and Tom has been here for five years.

Roll forward to 2023-04-01 and Dick applies for and gets a Permanent Residency (or the UK equivalent now called "Settlement") certificate too. We are no longer under EU law but we conceded to the EU, even before we discussed transition, that people in Dick's position would get eventually get Settlement (if they stayed her for long enough and met the required conditions) as part of the withdrawal agreement.

But what about Harry?

May certainly wants him to be denied Settlement if he applies and may even be demanding that Harry be hunted down and thrown out of the country when he is located.

Finding Harry, and people like him, will not be straightforward. Harry is equipped with exactly the same certificate as Tom and Dick had. Police, employers, medical staff, and landlords will not easily be able to identify Harry as someone who should not be here and he may be unaware himself that he is no longer welcome.

But there is a more fundamental problem:

Harry was issued with a certificate that – together with the relevant EU law under which that certificate was issued - promised him the opportunity to be able to stay.

I realize it is now 2023 and we are no longer bound by EU law. It could be argued that we should simply renege on the “promise” to Harry made when we granted him residency.

But what we cannot, in good faith, do is issue Harry with his certificate in 2019 while simultaneously announcing that we are not going to honour the provisions contained within – or legally implied by - that certificate.

In order to get "our" (ie May's) way here, we should have to issue Harry with a different certificate reflecting his different status and the EU would have to recognize that new category of EU citizen and change its laws accordingly and get twenty-seven countries to agree.

So the EU cannot directly force us to accept Harry in 2023, but it can - on pain of being denied transition - force us to promise, in 2019, to accept Harry come 2023.

And given that Davis, Clark and Hammond have already acknowledged that we shall be complying with the terms of the EU acquis for transition



May is going to have a hard job trying to get the E27 to change their laws and their minds on this.

May has blundered into a fight she is almost certain to lose.

Ironically, if she won, she would find herself in an even bigger mess. Given the time that will be available once we have finally reached agreement on all aspects of citizens’ rights, it is inconceivable that our Home Office would be able to implement and roll out a new system that would smoothly and reliably discriminate between all the Toms, Dicks, and Harrys in time for 2019 April 01.

The Home Office must be praying she loses this one.


Postscript

I've had somebody complaining about my terminology (though I was trying to make a general point and we don't know yet exactly what the terminology will be post Brexit). Anyway, to put the record completely straight: the piece of paper you currently get for PR is called a "permanent residence document" and the piece of paper that EU/EEA citizens *can* get (but have rarely bothered with because it wasn't required) to confirm residency is a "registration certificate". (The equivalent confirmation for non EEA citizens is called a "residence card".)





[i] My wife already has such a certificate – obtained after a great deal of blood sweat and tears. As she finally obtained it the Home Office announced that everyone with such certificates would have to apply to have them replaced with Settlement certificates after Brexit.

2018-01-18

Where do EU citizens in the UK now stand? (update)

Since I wrote "Where do EU citizens in the UK now stand? (clue: not where Daniel J Hannan says they do)" (and had the above conversation) the UK has reached agreement with the E27 countries on exiting the EU - specifically on our remaining financial commitments, Ireland, and citizens' rights - and many (on both the Remain and Leave sides of the debate) fondly assume that the situation of EU citizens living in the UK is no longer an issue.

I thought I should revisit the areas of concern* I raised in my original piece and update them in the light of the recent agreements.

Will EU citizens living here be allowed to stay?

In the end, Theresa May and the UK government retreated a long way from their initial refusal to guarantee E27 citizens' rights and their insistence that those citizens should be used as bargaining chips (see also Assuring EU citizens of right to stay 'would lose UK negotiating capital') and conceded, on 2017 October 19, that "EU citizens living lawfully in the UK today will be able to stay."

In reaching agreement with the E27, the UK government acceded to most of the E27's initial demands on citizens' rights (which the E27 had set out on 2017 May 29). The E27 also gave some ground however - to the detriment of their citizens living here.

This agreement has yet to be ratified and is contingent on us reaching agreement in many other areas. We could just drop out at any time leaving EU citizens with no rights. But assuming the agreement holds, how sanguine should those directly affected be?

The devil, as ever, is in the detail.

What the UK Government has actually promised is not that E27 citizens living here will be able to stay but that E27 citizens currently living here "lawfully" will be able to apply to obtain "Settled Status":

"The settled status application process for EU citizens will be completely different from the current one for documents confirming EU permanent residence status. We are designing a new system from scratch, with new processes, technology, rules and support for applicants." (ref)

The Home Office have also said that:

"EU citizens will also be given a statutory right of appeal, in line with their current rights through the Free Movement Directive, if their application is unsuccessful." (ref)

Thereby making it quite clear (in case there were any doubt) that not all applications will be successful.

The refusal/rejection rate for "Permanent Residency" (the current - and soon to be abolished** - equivalent of “settlement”) has been up to 34%. Even if the refusal/rejection rate for “settlement” is only a few percent, we are still talking about potentially hundreds of thousands of people. Many thousands, perhaps tens of thousands, will through infirmity, confusion, fecklessness, absence from the UK, uncertainty about their status (perhaps having been in the UK since birth or from an early age) simply fail to apply in time. As a number of (non-EU, often vulnerable) migrants to the UK have discovered, the Home Office is ruthless when it finds people who have lived here all their lives but have lost or failed to secure the rights bits of paper as the rules have tightened over the years.

And even for the majority who will apply correctly for settlement, many questions spring to mind:

  • What criteria will be used to grant or refuse “settlement”?
  • What exactly does the UK government mean by “lawfully” in this context?
  • Will applicants have to surrender their ID / travel documents when they apply?
  • If so, for how long?
  • If not, will they be able to present their documents for inspection somewhere local?
  • And will they be able to present their documents for inspection at convenient times – e.g. without having to take the day off work?
  • How long will it take the Home Office to process the 3.2 million applications?
  • Given this will presumably go on for at least two years after 2019 April, how will EU citizens in the UK be policed?
  • Specifically, how will employers, GPs, landlords etc. distinguish between EU citizens entitled to settlement but not yet in receipt of the relevant papers and EU citizens who have just arrived?

And there is still no definitive word on whether the nationals of Norway, Iceland, Lichtenstein and Switzerland will come under this new system.

In conclusion, I think we can assume that most of the 3.2 million EU/EEA citizens who have lived here for five years, or are able to clock up five years between when they arrived and when the Home Office decides to start implementing the new regime, will be allowed to stay. A significant minority will be forced to leave and will - if the Home Office's long record of behaviour is anything to go by - be subject to the freezing of bank accounts, revocation of driving licences, bans from employment, detention and, ultimately, deportation.

What rights will EU citizens who do stay lose - or now keep?(ref)

The right to go abroad for more than five*** years

Currently any EU citizen can live for as long or a short a time as he or she wishes in any member state. After Brexit, an EU citizen who goes abroad (to the EU or elsewhere) for five years or more - to study, work, or perhaps care for a relative - will lose his or her settlement status in the UK. Since residency is not formally registered in the UK it is not clear how this rule will be policed but it means that people will have to think long and hard before accepting a job abroad or retiring overseas. In addition to limiting the freedom of its intended targets, this rule will, of course, limit the freedoms available to UK family members of EU citizens living here.

The right to fall in love with a foreigner

The UK got its way on this point and the EU backed down. An EU citizen living in the UK who has the misfortune to fall in love with someone from another country after Brexit will henceforth be dealt with under the same rules as apply to British 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 on 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

The EU largely got its way on this point and the UK backed down. 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. I shall have lost the absolute right to accompany my wife to go and live in Germany by then; and my wife would lose the right to return here if she went to live in Germany for too long on her own. At least the UK has now conceded that we would be allowed to bring my mother in law here. If she remarried, however, then her new spouse would have no such rights. If the new spouse's health deteriorated at the same time we'd all be in a bit of a pickle.

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

The UK and the EU reached a compromise here - though the EU retreated further than 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. The UK government has agreed to allow a role for the ECJ for eight years after Brexit. Therafter, EU citizens will be at the mercy of the UK authorities and any unilateral post-Brexit changes those authorities may make to what they have currently agreed with the EU. The record of the UK authorities does not inspire confidence.

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 his/her family - lose the absolute right to move freely in the other EU member states (though such families will of course be able to apply for residency in an individual E27 country and, under EU laws, this would almost certainly be granted). This was an inevitable consequence of the UK abolishing EU citizenship for its own citizens and was not contested by either side during the recent negotiations (though see "UK citizens in the EU" below).

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

In addition to applying for settlement papers from the UK authorities, it seems that EU citizens will eventually 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. National identity cards will, it seems, be accepted from EU citizens applying for settlement during the two years or so after Brexit, but there was no discussion of this question during the recent talks and no official announcement has been forthcoming as to when the UK intends to change the rules for travellers. Judging by the leaked IMMIGRATION AND CITIZENSHIP SYSTEM AFTER THE UK LEAVES THE EUROPEAN UNION document however, this measure seems inevitable.

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

While the UK retreated on its plans for fingerprinting E27 citizens living in the UK, all such citizens granted settlement will thenceforth have to present (when asked) what is, in effect, a UK ID card. There will be no legal obligation to carry this card but, without it, settled E27 citizens will have no way to distinguish themselves from E27 citizens who do not have settlement and its associated rights. Of course many E27 (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

The considerations here are unchanged by the recent negotiations. As the Home Office website still has it:

Their use of the word "broadly" rings a few alarm bells but let us assume that E27 citizens' de jure employment, property, healthcare, study, and welfare rights (in the UK) do 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, if our friend Robert Goodwill MP has his way, also have to pay a large fee to the government when 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.

UK citizens living in the EU

This post is focused on the plight of E27 citizens in the UK, but the plight of UK citizens in the EU also deserves a mention: As Robert Goodwill MP and Minister of State for Immigration was making clear (apparently with Dan Hodges's approval) in his letter to my MP back in 2017 January, the plan at that stage was to use E27 citizens as bargaining chips against the rights of UK citizens in the EU. When push came to shove however, the UK Government simply abandoned their own citizens.

In 2017 July the UK was insisting that UK citizens living in E27 countries should continue to enjoy freedom of movement within those countries (while, of course, also insisting that E27 citizens resident in the E27 would lose freedom of movement in the UK):

In 2017 December, the UK Government - desperate to move on to trade talks with the EU - caved in to the E27 on this issue:

UK citizens living in the EU and their families will henceforth probably be trapped in the country where they are living at the time of Brexit and will lose many of their rights to work and trade across the E27 too.- a huge problem for many Brits who have got used to ignoring European land borders in their daily lives.

Conclusion

I suppose that, on balance, EU citizens in the UK should be reassured that the UK is not about to turn into Uganda under Idi Amin. Despite the views of a minority**** of Brexiters and the barely veiled threats of politicians like Robert Goodwill, there will now be no mass expulsions of EU citizens from the UK.

On the other hand, claims - such as this from Danial Hannan - that there will be no change for EU citizens post Brexit are risible.

At the very least, 3.2 million people and their families here in the UK will have to endure a great deal of anguish and hassle over the new few years trying to sort out their status with hostile officials and, in some cases, will be subjected to real hardship and will have their lives torn apart.

I am still waiting to hear what the up-side of all this will be for UK citizens living in the UK who who do not have foreigners in their families and who are quite sure that they (and their descendants) will never want to go abroad.





By the way, I replied to Dan Hodges thus:

That's still my position.





Notes

* By no means an exhaustive list.

** Even for those who already have this "permanent" status. "Permanent Residency" is defined in EU law and will, by default, have lost validity when we wake up on the morning of 2019 April 01.

*** Was originally two years.

**** Albeit a significant minority.

Edits: Since first publishing this piece I have made several minor corrections to the html and to typing mistakes. I have also qualified my claim in respect of the likely extension of the Immigration Skills Charge to employers of EU citizens and have added a supporting reference for my modified claim; and have added some remarks about the fact that the agreement is not ring-fenced and is, thus far, only provisional.