In the wake of Brexit: establishing right to remain

As Brexit negotiations begin, how can the UK and the EU agree the right of EU nationals currently in the UK to remain after Brexit and put in place a system for two-way traffic in workers post-2019?

In the wake of brexit people walking different directions over bridge london
Forget the seemingly insurmountable difficulties over a Brexit trade deal, the UK’s ‘divorce’ payment to the EU, freedom of movement, the border between the two Irelands, and so much more. There is one thing both sides agree on: the need to guarantee the right to remain of three million-plus EU citizens living and working in the UK.Simple, you might think. Done deal. Except that it’s not. Even if you ignore the inherent problems of reaching a reciprocal agreement to cover the 1.2 million Brits currently living in the other 27 EU member states, the plight of European citizens in the UK could prove – without some blue-sky thinking and down-to-earth compromise – an intractable problem.In late May, the European Commission set out its negotiating position on the rights it wants EU expats in the UK to continue to enjoy after Brexit. Its position paper, Essential Principles on Citizens’ Rights, says that a precursor of any trade talks must be an agreement to afford the same level of protection after Brexit as before it.EU citizens, demands the paper, should be regarded as having a legal right to remain in the UK after Brexit, even if individuals do not have documentation proving residency (such documentation, anyway, should be provided free of charge by the UK government, says the commission).Brussels is also demanding that EU citizens be allowed to bring family members from anywhere in the world into Britain for an indefinite time after Brexit, and that these expats and their families be entitled for life to benefits – such as pensions, sick pay and disability benefits – even if they leave the UK.And the commission wants to see the European Court of Justice – whose rulings the UK government is determined to be free from – having “full jurisdiction corresponding to the duration of the protection of citizens’ rights”, even after the EU and the UK have parted company.In response, the UK Brexit Secretary, David Davis, described the commission's demands as “ridiculously high”, adding, “We are going to give the European citizens here generous rights. We don’t intend to be unnecessarily fierce about this. We will deal with it at the very first negotiations.”

Uncertainty causing problems

Yet even before those negotiations began in June, practical problems were already emerging. Anne-Laure Donskoy, a co-chair of the 3 Million Group, which was established after the referendum to lobby for the rights of EU expats in Britain, claims that some employers have already begun filling vacancies with UK-only citizens, fearful that other Europeans will not be able to remain after Brexit.“People are being turned down for rent agreements,” she adds. “For example, opening bank accounts is becoming more difficult, or sometimes obtaining loans, because the banks like to know whether the person will be allowed to stay in the UK or not.”Meanwhile, the Home Office, in London, is experiencing problems of its own stemming from the uncertainty engulfing EU nationals. Official data in the spring showed it had approved some 32,000 permanent residency applications in the final quarter of 2016 alone – a 560 per cent increase on the same period in 2015.Nevertheless, an analysis of official data by Laura Devine Solicitors identified a ‘hidden backlog’ of some 414 per cent (an annual total of 40,485 in 2016 compared with 7,871 in 2015) in applications recorded as received but not yet formally input on Home Office systems, in addition to 85,000 pending applications.Sophie Barrett-Brown, head of the UK practice at Laura Devine, says, “The Home Office is dealing with unprecedented demand from EU citizens for residence documentation that millions are eligible for, but few had even thought to apply for prior to the Brexit referendum result.“Welcome innovations such as shorter-form online routes for some applicants, replacing the cumbersome 85-page form, are helping. "But the fact that only a fraction of those eligible have applied so far – plus the hidden backlog – highlights the pressure the system is under already."“More radical steps are needed to streamline processing of applications and spare thousands of individuals and families suffering unnecessary anxieties and disruption to their work and family lives.”

‘Streamlined process’ needed

A recent report from think tank the Institute for Government (IFG) stated, “Government must clarify the rights and entitlements of EU nationals living in the UK, and provide them with documentation attesting to their status. Without that, there will be confusion for employers, landlords and providers of public services – as well as prolonged uncertainty for citizens.”But the IFG found that the Home Office could need up to 5,000 additional staff to process applications if those looking to remain in the UK post-Brexit were required to apply through the current permanent residency process with its existing eligibility criteria and levels of scrutiny.“If government’s priority is providing these EU nationals with the necessary documentation as quickly and effectively as possible, it must recognise that the current permanent residency process is not fit for purpose and must introduce a streamlined process,” says the report.“Government should recognise now that a new immigration regime for post-Brexit EU migrants will not be ready by April 2019, with time required to consult on plans, to implement the system, and for employers to adapt.”The IFG points out that, pre-referendum, very few EU nationals had applied for permanent residence in the UK after a qualifying period of five years, unless they eventually intended to apply for British citizenship.The post-referendum rush for residency status is a route only available to about two million EU expats and, although more will be eligible by April 2019, many will not, “and there is still uncertainty over their future and right to remain in the UK”.

Agreement ‘must be priority’

Global media platform openDemocracy points out that, even for those who have been in the UK for five years, the process of qualifying for permanent residence is fraught with pitfalls.“To obtain such documentation,” it said, “one needs to satisfy a number of fully documented requirements. What initially seemed to be ‘straightforward’ paperwork turned into a shock for EU citizens who discovered they did not meet the basic requirements despite long-term residence in this country and were regarded as being potentially unlawful residents.“Those most affected were economically inactive EU citizens without private health insurance; individuals who had recent breaks in their careers; EU citizens married to, or in an unmarried relationship with, British nationals; pensioners; long-term disabled persons; and individuals in care homes.”OpenDemocracy said the government website gave “the wrong impression” that applying for permanent residence was a straightforward process. In fact, the 85-page form and the need to supply supporting documents – such as electricity bills going back five years or proof of employment – provided “unsurmountable [sic] hurdles” for many, even if the Home Office guidance for applicants (all 40 pages of it) was updated as recently as 27 April.For its part, the European Council has drafted guidelines demanding that, for both EU citizens in the UK and British expats in Europe, an agreement must be reached as a matter of priority, setting out “reciprocal guarantees to settle the status and situations at the date of withdrawal of EU and UK citizens and their families”.The UK government, however, looks likely to balk at the “date of withdrawal” demand, and wants only those who have been in the country for five years or more to qualify automatically for a permanent right to remain. This leaves in limbo the status of the million or so who have moved to Britain in recent years.The 3 Million Group wants both sides in the Brexit negotiations to reach an early, ring-fenced deal on the rights of EU citizens, regardless of what is, or is not, agreed in talks about trade, borders, freedom of movement and everything else.And they seem to have a champion in Michel Barnier, the EU’s chief Brexit negotiator. Calling for Britain to agree to “crystal-clear guarantees” – enforced by the European Court of Justice – to protect the rights of EU citizens, he said, “I will not discuss our future relationship with the UK until the 27 member states are reassured that all citizens will be treated properly and humanely. Otherwise, there can be no trust when it comes to constructing a new relationship with the UK."Clearly, this is not a case where no deal is better than a bad deal. Rather, it is a case where agreement must precede absolutely any sort of deal.
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