After more than a year, the UK government has finally published their proposal for securing the rights of EU citizens resident in the UK.[1] On 23rd June Theresa May announced, “We won’t be seeing families split apart, people will be able to go on living their lives as before. This is a fair and serious offer”.
So does the substance of the proposals live up to the claims made by ministers? And how does it compare to the EU’s offer in their paper of 24th May 2017[2] that UK citizens would essentially retain the same rights they currently have under EU law including the ability to move freely throughout the remaining EU member states?
On the face of it some parts of the UK’s proposal appear promising. There is a commitment to grant settled status to those who have lawfully resided for 5 years before an as yet unspecified date which will be no earlier than March 2017 when Article 50 was triggered. Those who arrived before that date but have yet to accrue 5 years will be allowed to remain on a pathway to settlement under UK law. There is a commitment to permit those with settled status to have access to benefits and healthcare on the same basis as UK citizens and an ambition to seek an ongoing arrangement akin to the EHIC scheme as part of negotiations on our future arrangements with the EU.
Yet a closer analysis reveals many ways in which the proposed scheme is a regression from the rights that EU citizens currently enjoy in the UK and is a far more meagre offer than that already proposed by the EU. This article will look at some of the more problematic issues: family reunion rights, protection from deportation and procedural protections.
Family Reunion
In defending the UK’s offer the Brexit Secretary David Davis stated that the proposed settled status would give EU citizen’s rights “almost equivalent to British citizens”. “They get the same residents’ rights, the same employment rights, the same health rights, the same welfare rights, the same pension rights and so on. The only thing they don’t get is the right to vote and they can get that if they become a citizen”.[3]
At least in some respects this appears to be true, yet that is where the problem lies. The current proposal is that after Brexit if EU citizens with the new settled status wish to have family members join them, they will be subject to the same rules that apply to UK citizens or to new immigration rules for EU citizens that remain to be written. It is not hard to see why EU leaders may be less than impressed with an agreement whereby EU nationals living in the UK get similar rights to British citizens, and British citizens in EU countries get rights similar to EU citizens. The basic difficulty is that in certain respects EU nationals in the UK currently have fundamentally greater rights, particularly when it comes to immigration law than do British citizens in their own country.
Take for example the right to family reunion. Currently an EU national in the UK has the right under EU law to be joined by their spouse, dependent children under 21, and dependent family members in the ascending line of the EU national and their spouse or partner[4] even if those family members are non-EU nationals. A Spanish national working in the UK therefore has the right to be joined by her Colombian mother if she is dependent on her. Compare that to the rights of a UK citizen. A UK citizen has no statutory right to be joined by any family member. What rights they do have are set out in the immigration rules – statements of executive policy which can be changed at the whim of whichever government is in power, subject to a limited form of Parliamentary scrutiny.[5] At present a UK citizen can only be joined by a non-national parent if they can show that they require long-term personal care to perform everyday tasks which they can not obtain in the country where they are living even with the practical and financial help of the sponsor.[6] Since the sponsor also has to show they can accommodate and financially maintain their relative in the UK without recourse to any public funds, it is not surprising that this immigration route has been described as effectively “a ban masquerading as a rule”.[7] The recent case of BRITCITS v The Secretary of State for the Home Department [2017][8] highlighted how difficult it is for anyone to succeed, since those relatives who are able to afford to maintain their family in the UK are usually told they can therefore send the money to maintain them abroad.
Or take the case of spouses. An EU national has the right to be joined in the UK by their non-EU spouse. Under the immigration rules a UK citizen must show they are earning at least £18600 per year, provide detailed evidence for the preceding year’s income, and continue to meet this threshold for a period of 5 years before their spouse can gain the security of indefinite leave to remain.[9] A report by the Children’s Commissioner has described the plight of thousands of children growing up in “skype families” due to being separated from at least one parent.[10] The Migration Integration Policy Index (MIPEX) has ranked the UK in last place out of 38 developed countries for it’s attitude to family reunion. They note that “Separated families now face the least ‘family-friendly’ immigration policies in the developed world: the longest delays and highest income, language and fee levels…”.[11] If EU citizens now find themselves subject to the same immigration rules as UK citizens, the number of separated families will either increase, or we will see an exodus of EU nationals returning to their country of origin.
The UK Supreme Court recently upheld the minimum income requirement in principle[12], though found against the current policy guidance which failed to take into account the best interests of children who may as a result be separated from a parent. Four months on the policy has yet to be amended and the Conservative manifesto promised that the Minimum Income requirement would be increased.[13]
For a number of years the anomaly whereby EU citizens have a greater right to family reunion has sat uneasily alongside the limited rights of UK citizens to live with their partner of choice in their country of origin. It has even led to the use of the “Surinder Singh route”[14] whereby UK citizens move to an EU country temporarily in order to be able to return with their spouse under EU law, thus avoiding the obstacles of UK immigration law. The government could have resolved this injustice by improving the statutory rights of UK citizens. Instead this proposal appears to be resolving the discrepancy by reducing the rights of EU citizens – a prospect that the EU is likely to wish to resist.
The Right to Remain and Protection from Deportation
When we consider the issue of the right to remain, it is clear that Davis’ statement that “EU nationals will effectively have the same rights as UK citizens” breaks down. The headline proposal repeated by Theresa May is that “after brexit no one will have to leave”[15] but that isn’t quite true. UK citizens have the right of abode in the UK. This means they are not able to be deported from the UK and have the right to re-enter the UK even after a lengthy absence. At present EU nationals resident in the UK can lose their permanent right of residence after 2 years absence from the UK, but with the current right of free movement this would not stop them from being able to return and re-establish a life in the UK. Under UK immigration law a 2 year absence may lead to the loss of all residence rights – see the example of the recently publicised case of Irene Clennell who after 30 years residence in the UK lost her right to remain following lengthy absences to care for her dying family overseas.[16]
Under EU law an EU citizen can be deported but there is a relatively high legal test. Any decision must be proportionate, must be based exclusively on the personal conduct of the individual concerned and must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.[17] EU citizens resident for over 10 years can only be deported on imperative grounds of public security. In contrast it is now common practice for the UK to seek to deport long resident non-nationals including those born and raised in the UK following a 12 month prison sentence.[18]
The UK’s proposals involve granting settled status (indefinite leave to remain) after 5 years residence subject to “an assessment of conduct and criminality, including not being considered a threat to the UK”.[19] The unanswered question though is how strict that check will be. If it approximates the current UK deportation regime it raises the prospect of long term resident EU nationals including those born in the UK finding themselves unable to qualify for residence and facing removal. UK law now deems the deportation of those defined as foreign national criminals (e.g: following a 12 month sentence) to be in the public interest, regardless of how long ago the offence was committed and whether they have subsequently been granted leave to remain. Will this now apply to EU citizens? Will EU nationals previously convicted of offences for which they have already served time now be subject to deportation action? And whilst some may have little sympathy for those convicted of past crimes, if such a policy is implemented it will have the effect of separating families or forcing British citizen partners to leave the UK as well. How will the EU respond in respect of UK citizens living in the EU with a chequered past? The current UK proposal raises far more questions than it answers.
Procedural Protections
EU law imposes certain procedural protections on states when it comes to the right of entry and residence of EU citizens. Importantly those refused residence documentation have the right of appeal to an independent tribunal as do those faced with deportation. The recent trend in UK immigration law has been to dismantle such procedural protections for non-EU nationals. They no longer have a right of appeal against a decision to refuse to extend their leave, to revoke their ILR, or even against a decision to deport unless they have raised a human rights based claim to remain. The UK’s proposal is conspicuously silent about what procedural protections EU nationals will retain. Inevitably with any massive bureaucratic registration system, mistakes will be made. The UK has said the registration scheme will be a “light touch”, but at the very least it appears the scheme will have to verify an individual’s date of entry, length of residence, whether it was continuous and whether that person passes the criminality checks. There is clearly room for mistakes to be made and we should not forget that when there was a right of appeal against an in-country refusal of leave to remain roughly 49% of appeals were successful (some7,800 decisions in 2012/13 alone).[20] So the question of how those refused are to challenge a negative decision clearly needs to be addressed. The UK has rejected any involvement of the Court of Justice of the EU (CJEU), but has not been clear about what remedies will be put in place in the UK. Considering that the government of Theresa May has been quite open about its hostility to the European Court of Human Rights (ECHR) – another international body which places at least some external constraints on the UK’s ability to arbitrarily deport non-nationals – EU leaders may well question the UK’s ongoing commitment to the future protection of their national’s rights.
So what could the UK have offered? Well it is not like we haven’t been here before. In 1971 the UK made another decision to finally end the special immigration rights of a large number of people – Commonwealth citizens and citizens of the remaining UK colonies. Prior to the 1960’s Citizens of the UK and Colonies (who had British passports) and Commonwealth citizens essentially had the right of free movement to the UK. These rights were progressively rolled back throughout the 1960’s. But in 1971, as the UK prepared to enter the EEC, a final decision was made to end the special status of Commonwealth citizens and bring their immigration position in-line with those who were then classed as “aliens” in law. Yet in doing so it preserved the rights of citizens from the colonies who had been resident for 5 years by granting them the “right of abode” – a status shared with citizens born in the UK which carried with it the unrestricted right of entry to the UK.[21] Importantly the Immigration Act 1971 mandated that subsequent immigration rules had to be framed in a way that would preserve the statutory rights of family reunion for female spouses and minor children of Commonwealth citizens who were settled upon the coming into force of the act.[22] It would therefore be entirely possible for the UK to freeze in law the current position of permanently resident EU nationals, to grant them an unrestricted right of abode or to mandate that new immigration rules for EU nationals already settled at the time of Brexit must not lead to a reduction in their current rights to family reunion or exemption from deportation.
However, the guarantees given to Commonwealth citizens were reneged on by subsequent Parliaments. The Immigration Act 1988 removed the right to family reunion from those who had been promised it was secure, permitting harsher immigration rules to be adopted.[23] It is now possible to remove a person’s right of abode with no right of appeal, meaning that in practice this status has little advantage over ILR.[24] No doubt the EU will be concerned that whatever deal the UK offers, without an international method of enforcement, the lives of their citizens are in the hands of whatever future government manages to command a majority in Parliament.
What Next?
These are just a few of the issues that will need to be considered in the ongoing Brexit negotiations. What is clear is that even this preliminary stage of the negotiations is far from straight forward. Rather than providing the clarity promised, the UK’s initial proposal raises numerous questions and is more likely to raise anxieties than to calm them. The UK’s appeal for this offer to be reciprocated will also be worrying to UK citizens within the EU as if it was reciprocated on similar terms it would lead to a diminution of their rights as well. The cut-off date for newly arrived EU nationals to benefit from the UK’s offer remains to be negotiated and so it appears that the rights of both EU and UK citizens are to remain on the table for some time yet.
[1] UK Government Cm9464, The United Kingdom’s Exit from the European Union: Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU, June 2017
[2] Working paper “Essential Principles on Citizens’ Rights” https://ec.europa.eu/commission/sites/beta-political/files/citizens-rights-essential-principles-draft-position-paper_en.pdf
[3] The Guardian, 26/06/17 Theresa May to publish plan for EU nationals’ rights in Britain https://www.theguardian.com/politics/2017/jun/26/eu-nationals-to-be-offered-nearly-same-rights-at-britons
[4] Definition of family member – Article 2 EU Directive 2004/38/EC of 29 April 2004
[5]The negative resolution procedure. Statements of the immigration rules must be laid before Parliament for 40 days. If they are disapproved by a resolution of the house, the Secretary of State undertakes to reconsider them.
[6] Immigration Rules Appendix FM Section EC-DR
[7] Sarah Teather MP Hansard HC Deb 261WH, 19 Jun 2013
[8] BRITCITS v The Secretary of State for the Home Department [2017] EWCA Civ 368
[9] Appendix FM: Family Life with a partner
[10] https://www.childrenscommissioner.gov.uk/2015/09/09/skype-families/
[11] http://www.mipex.eu/
[12] MM & Ors v SSHD [2017] UKSC 10
[13] p54,“Forward Together: Our plan for a stronger Britain and a prosperous future”, Conservative Manifesto 2017
[14] See https://www.gov.uk/family-permit/surinder-singh
[15] “The EU nationals offered right to stay”, BBC News, 23 June 2017
[16] https://www.theguardian.com/uk-news/2017/feb/26/grandmother-deported-from-uk-despite-being-married-to-briton-for-27-years
[17] Article 27 EU Directive 2004/38/EC of 29 April 2004
[18] The 2007 UK Borders Act introduced the concept of automatic deportation for non-EU nationals who receive a sentence of more than 12 months.
[19] p8, UK Government Cm9464, The United Kingdom’s Exit from the European Union: Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU, June 2017
[20] Statistic for appeals allowed in managed migration category 2012/2013
[21] s2 Immigration Act 1971
[22] s1(5) Immigration Act 1971
[23] s1 Immigration Act 1988 which repealed s1(5) Immigration Act 1971
[24] s57 Immigration, Asylum and Nationality Act 2006 which amended the 1971 Immigration Act