This note is written on 27 June 2017, the day after publication of the Home Office paper
It is a first stab at capturing the problems with the Home Office approach. Familiarity with the Home Office paper is assumed.
The Problems with the UK position
1. The Home Office refer to EU citizens and family members ‘resident’ in the UK before the UK’s exit from EU. ‘Residence’ is not defined. Does it mean mere ‘presence’ or that a person must be present exercising EU Treaty rights (work, self-sufficiency, etc.)? Clarity is needed. Mere ‘presence’ in the UK should be sufficient.
2. There is also no definition of ‘continuous residence’. In what circumstances may a EU citizen or family member aggregate periods of qualifying activity? A clear, generous approach is required.
3. The Home Office paper does not speak about de facto EU citizens’ rights, e.g. where the EU Citizen has been in the UK for years, maybe married to or a family member of a British citizen, or suffering from long-term sickness, and is not working or self-sufficient. What happens to such persons?
4. There is no plan for an independent Supervisory authority to monitor the protection of rights acquired under or protected by EU/International law. It is a serious mistake to leave the Home Office unsupervised. A Supervisory authority monitors compliance and issues guidance. It may intervene in dispute resolution cases (e.g At present the Commission is able to participate in cases referred to the Court of Justice).
5. There is no plan for an international court to interpret the law on the protection of rights acquired under or protected by EU/International law. It is a serious mistake to leave the position to UK immigration tribunals without the possibility of a reference on a point to law to the Court of Justice or equivalent Court. Rights acquired or derived from international law are in issue. Ideally, any new arrangement would allow such a court not merely to interpret law for a national court (using the reference procedure) but also to adjudicate on disputes (given that the UK is leaving, there is a need for this development).
6. Any rights protected by international law/treaty between the UK and the EU on and after BREXIT must be embodied in UK legislation, justiciable in domestic courts, and directly effective.
7. The ‘specified date’ is yet to be defined. This is hopeless. No one can plan with certainty. The specified date should be the exit date.
8. Third-Country national family members entering the UK after the specified date have no certainty once the UK leaves the EU. New UK Immigration Rules applicable after BREXIT will almost certainly bear down on them. Substantive and procedural protection is required.
9. Family members who arrive in the UK after the specified date will be subject to UK rules. This may include income thresholds, language and integration tests, etc. Such persons who join an EU citizen with transitional protection of any kind, should benefit from current EU family reunion provisions.
10. Family reunion law from those coming from outside the EU may bear down on British citizens and their family members in EU27 states if the UK is not generous. Family reunion law is not wholly harmomised. There may be high standards; there may a separate regime in each member state.
11. No detail is given as to the UK domestic scheme to apply on BREXIT, to those arriving after the specified date and those arriving after BREXIT. Substantive and procedural detail is conspicuous by its absence. This is wrong.
12. Everyone must apply for new status documents. Why? It would be easy to convert the status of existing EU Registration Certificates/Residence Cards. The Home Office did a similar thing when the Immigration (European Economic Area Regulations 2006 replaced the earlier 2000 Regulations. In addition, those with EU permanent residence rights documents should be automatically exempt from needing to reapply.
13. The ‘new Settled Status’ is just a rebranding of Indefinite Leave to Remain (ILR). The plan is to give qualifying EU citizens and family members ILR. This will be a purely domestic status not protected by any new Treaty or international law. This is wrong. International protection is required as the root of entitlement will be previous EU/International law rights.
14. In any event, there are problems with ILR: It is not automatic or based on previous EU rights. The Home Office intend to grant It will not be recognising existing entitlement. This is wrong. Recognition not grant should be the technique deployed.
15. Anyone moving from EU Permanent Residence status to Settled Status will lose some protection. ILR can be refused and/or cancelled using domestic Immigration Rules criteria (General Grounds of Refusal). Protection from Expulsion will be at a lesser standard. This is a plain loss of rights.
16. At present, in some cases, EU permanent residence may be acquired in less than 5 years (e.g. where permanently incapacitated). No provision is made for transition of these rights, either were a person arrives in the UK before the specified date, or afterwards.
17. Those arriving in the UK after the specified date and/or after BREXIT will not benefit from current rules on access to benefits, etc. This is wrong. Beneficiaries should include those EU citizens and family members present in the UK on the exit date. Once again British citizens in the EU 27 states can expect to receive no more than the provision made for EU 27 nationals in the UK.
18. Home fees rates for study on and after BREXIT are not protected. This will affect EU citizens and family members already here and those arriving after BREIXT. This will disrupt education institutions. It will affect British citizens who wish to study in the EU 27. Why damage what works well?
19. There is no guarantee of protection for the co-ordination of social security benefits after BREXIT, e.g. for new arrivals after BREXIT. Entitlement to the same arises on payment of national insurance contributions (or equivalent). Regulation 883/2004 regulates it. It also covers healthcare entitlement for tourists (the EHIC Card). Non-member states such as Turkey participate. It is a contribution-based system. It should continue to apply to all.
20. Mutual recognition of qualifications for those arriving after BREXIT is not guaranteed. Why not? It works well at present. Professions such as the Bar, Medicine, etc. will be prejudiced.
21. There is no guarantee for the right to establishment/self-employment after the specified date. This is wrong. Such entrepreneurial activity, often reliant on human capital and determination, rather than the investment of large sums of money, drives growth and innovation. Entrepreneurial EU citizens migrate to the UK because they consider it the best place in Europe to get on. Now they will go elsewhere. Cutting off such access will vandalise a critical part of the UK business environment. Such rights should be guaranteed to those arriving after the specified date and, indeed, arriving after BREXIT.
22.There is no guarantee for the right to cross-border service provision after the specified date. This is wrong. Such activity is critical to business activity in the UK, e.g. in legal services, finance, industry. Service provision will now be easier among the EU 27 than between them and the UK. The UK will lose out. Cutting off such access will vandalise a critical part of the UK business environment. Such rights should be guaranteed to those arriving after the specified date and, indeed, arriving after BREXIT.
23. The attempt to discourage EU citizens and family members from applying for EU permanent residence documents now is mendacious. Such persons ought to do all they can to protect their position. Permanent residence documents recognise existing rights; they are useful and necessary.
24. No provision is made for nationals of EEA/EFTA states; Norway, Iceland, Lichtenstein and Switzerland. It should be. Such nationals should have at least the same protection as EU citizens.
25. No protection is given to those possessing so-called derivative rights of residence, e.g. the primary carers of EU citizen children, after the specified date and after BREXIT This is a deliberate omission and must be rectified.
26. No protection is given to the position of extended family members (elderly relatives requiring care, unmarried partners, etc.) after the specified date and after BREXIT. This is a deliberate omission and must be rectified.
27. Nothing is said about the requirement, or otherwise, for visas for third-country nationals after BREXIT, where they have joined EU citizens after the specified date. This is a deliberate omission and must be rectified.
28. Nothing is said about access to in-work benefits (housing benefits, tax credits, etc.) after BREXIT, where they have joined EU citizens in the UK after the specified date. Without access to in-work benefits, work and residence will be unaffordable to many such in low-income jobs (e.g. an EU citizen working as a nurse).
It is clear that the UK Government proposal is inadequate. In seeking to secure a just settlement for EU Citizens and their family members, as well as one that assists the UK, the points identified above, and others, will need to be advanced.