Tag: Brexit

Brexit negotiation update for EU citizens

An official update has been circulated by the Home Office as Brexit negotiations continue. This is the latest information on the status of EU citizens in the UK.

During the week of 19-23 March 2018, the UK and the EU have reached an agreement on what happens during the period immediately after Brexit, known as the implementation period. This is important as it will give citizens and businesses on both sides time to adjust before a new relationship with the EU is agreed.

So, what has been agreed so far and how will you be affected?

Brexit: EU citizens currently in the UK

The agreement on citizens’ rights reached in December has now been formalised into a draft Treaty text, meaning it is in the right form to be written into law.

The agreement means that if you are an EU citizen living in the UK before the UK leaves the EU on 29 March 2019 you will be able to continue to live and work in the UK. Your rights to healthcare, work arrangements and access to benefits will continue. Also, your existing close family members will be able to join you in future in the same way that they can now. You can read more here: Status of EU citizens in the UK: what you need to know.

From this week, EU citizens in the UK have been seeing digital adverts encouraging you to ‘stay informed’. The activity is part of an ongoing effort by the Government to build awareness about the agreement to protect EU citizens’ rights ahead of the roll-out of the settlement scheme.

Settlement scheme

If you are an EU citizen or family member already living in the UK, a user-friendly scheme to enable you to secure your settled status here will open later this year. But there is no rush – you will have up until 30 June 2021 to make your application.

The UK government will provide more information on the scheme and how to apply in the coming months.

Implementation period

The agreement we reached with the EU this week extends the citizens’ rights protections above to include EU citizens and their family members arriving in the UK during the implementation period (from 30 March 2019 to 31 December 2020). This ensures that those planning to come to the UK after March next year know what the arrangements will be. During this time, new arrivals will need to register through a new Home Office registration scheme after three months in the UK.

More information is available at UK leaving the EU: what you need to know.

Leaving the EU – Impact on Human Rights: Conference Summary Report

Sterling & Law Associates LLP were delighted to attend and participate in a high-level conference “Leaving the EU – Impact on Human Rights” organised by New Europeans[1], together with the European Association for the Defence of Human Rights (AEDH)[2], Britain in Europe[3] and Brunel University Knowing Our Rights project[4], and held in London on 16 March 2018 at Europe House

The event was organised to discuss the potential impact that Brexit would have on a number of our individuals’ rights and examine areas of human rights under threat for EU citizens and UK citizens.

The conference shed some light on key contentious areas such as workers’ rights, data protection, and family life among others. These are increasingly important topics to discuss as we move nearer and nearer towards the exit date of UK from the EU, especially when those in charge fail to provide specific indications into the details of these niche areas.

Brexit implications for human rights

There is a great fear that Brexit will lead to the regression of many of our rights. In the current state, a number of our fundamental rights derive from the European Convention on Human Rights (ECHR) and the European rules, regulations and directives. The Withdrawal Bill that proposes to implement Brexit could seek to remove several of those rights. For instance, in terms of employment law, the EU sits at the heart of workers’ rights[5] having brought about greater health and safety regulations that reduced the number of work days loss to absences and sick days, bringing about equal pay for equal value work and ensuring our right to parental leave. The Withdrawal Bill could possibly see the removal of these rights.

Data Protection Concerns

When it comes to data protection[6], the General Data Protection Regulation[7] (GDPR) proposed by the EU that comes into force on 25 May 2018, which has been implemented in the UK through the Data Protection Act, could lose all strength and meaning following Brexit. From an immigration perspective, the Data Protection Act includes an exception to the regulation for ‘effective immigration enforcement’. This means that if an individual is suspected of breaching immigration controls, the Home Office and other governmental agencies would be able to obtain and use personal data, that had been collected for purposes unrelated to immigration, to make a decision in regard to an individuals’ immigration status. This exemption could also mean that the Home Office would not be obliged to respond to Subject Access Requests (SARs) from people who wish to know what data has been held in relation to their previous immigration applications or situations at border controls. This is distressing because SARs are often used by legal practitioners to acquire necessary information to advise their clients on their specific circumstances, particularly when their clients do not have a clear record of their previous situations. Brexit could mean that the UK could get away with including such a wide-ranging exception into the legislation.

Photo by New Europeans

 

Family and private life

The conference also delved deeper into the impact that Brexit would have on our family and private life[8]. Research and analysis is currently being carried out into the effects on different categories of families. In the UK, 12% of all children born in the UK have at least one parent that is from the EU. After the referendum, there has been a sharp increase in the number of EU citizens in the UK applying for permanent residence applications and citizenship applications. However, while it might give you some peace of mind before the exit, the permanent residence card or document certifying permanent residence will not be considered valid after Brexit. EU citizens in the UK and their family members will have to reapply for a ‘settled’ status in the UK. However, as the exact details and processes are yet to have been announced, the rights of the EU citizens in the UK and those of UK citizens abroad in other EU countries have not been guaranteed. Brexit is seeking to remove EU citizens’ and their families’ free movement and automatic rights within the UK and create an entirely new system that has yet to be executed.

These alarming possibilities after Brexit gives rise to the question, as brought up by a participant at the conference, of whether the stripping of our access to these rights given to us through the EU would amount to an infringement of our human rights in itself.

Despite what has been mentioned in this article, no one knows for certain what is going to happen to our human rights after Brexit, let alone anything else relating to the UK, EU and Brexit, but it is important to keep updated on the news to ensure that we are all prepared for the big change coming our way.

Throughout the entire conference, it has been evident that Brexit has and will bring about an unjustifiable amount of uncertainty into our lives. This uncertainty underlines the discussion with ifs, doubts and questions that cannot be answered with a simple response. It is clear that the complexity of the matter, namely what effect Brexit will have on our fundamental human rights, cannot be easily resolved. However, what we can take away from this event is that there are several organisations and individuals that are currently fighting to ensure that our intrinsic human rights are not infringed.

It is our goal at Sterling & Law Associates LLP to help individuals and families to navigate this complex area of law and to keep EU nationals updated on any changes that may affect their life.

References:

[1] New Europeans is a civil rights organisation that campaigns for freedom of movement, non-discrimination and the principle of solidarity in Europe. This is done by giving a platform to European and non-EU citizens a voice in local communities to join and take part in the Europe-wide debate regarding the challenges that we are currently faced with.

[2] AEDH is a European network of over 30 individual and organisation members to defend and promote human rights in the EU.

[3] Britain in Europe is a think tank based at Brunel University London that brings together academics, legal practitioners, and human rights NGOs across Britain and Europe to conduct research and influence public policy.

[4] The project aims to provide analysis and insight into understanding the impact and application of the European Convention on Human Rights in the UK.

[5] This topic was discussed by Hannah Reed from the Trades Union Congress (TUC).

[6] This topic was discussed by Gracie Bradley from Liberty, a UK human rights and civil liberties campaign group.

[7] The GDPR was proposed to unify data protection rules for individuals within the EU. It seeks to protect personal data that is stored on computers or filing systems for example by ensuring that organisations that hold your personal information need to notify you if they share it and be transparent about how they process and use that personal information. The reason why this regulation is seen to be a move forward in this area is that there are real risks that can arise from non-compliance such as fines of up to 2% – 4% of the company’s global turnover.

[8] This topic was discussed by Dr. Nando Sigona from the Institute for Research into Superdiversity at the University of Birmingham.

UK’s proposed administrative procedures for EU citizens obtaining settled status

Today, on 7 November 2017, the Home Office circulated a public update on the administrative procedures underpinning the UK’s proposals for a streamlined application system for EU citizens obtaining settled status.

The text of the Home Office’s circular is quoted below.

“Today, the Government has set out further details of how the new settled status scheme for EU citizens and their family members will operate as the UK leaves the EU.

In a technical document sent to the European Commission as part of the negotiations, the Government reiterates how the new system will be streamlined, low-cost and user-friendly, with EU citizens consulted on its design.

EU citizens applying to stay in the UK after Brexit will have plenty of time, up to two years after the UK has left the EU, to obtain settled status. Those applying to stay in the UK after we leave the EU will not have their applications refused on minor technicalities and caseworkers considering applications will exercise discretion where appropriate. The new system will minimise the documentary evidence required and EU citizens will not be required to provide fingerprints as part of the application process.

Decisions will be based solely on the criteria set out in the Withdrawal Agreement, with no discretion for other reasons for refusal. 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.

The Prime Minister has been clear that safeguarding the rights of EU citizens living in the UK and UK nationals in Europe is the first priority for negotiations and she said last month that an agreement is within touching distance.

Negotiation between the UK and EU is continuing and the next talks will take place this week on 9 and 10 November. We will continue to keep you updated on further progress.”

Prime Minister pledges to secure simple process to swap current EU Permanent Residence status for UK settled status

Today, on 19 October 2017, ahead of the EU Council meeting, Theresa May wrote directly to EU citizens in the UK. In her message, the Prime Minister pledged to make it as easy as possible for EU citizens to remain in the UK after Brexit. She insisted that the application process for settled status in the UK would be “streamlined” and the cost “as low as possible”. For any EU citizen who holds Permanent Residence status under the current EU regulations, there will be a simple process introduced to swap their current status for the UK settled status.

Full text of the Prime Minister’s message is quoted below.

“As I travel to Brussels today, I know that many people will be looking to us – the leaders of the 28 nations in the European Union – to demonstrate we are putting people first.

I have been clear throughout this process that citizens’ rights are my first priority. And I know my fellow leaders have the same objective: to safeguard the rights of EU nationals living in the UK and UK nationals living in the EU.

I want to give reassurance that this issue remains a priority, that we are united on the key principles, and that the focus over the weeks to come will be delivering an agreement that works for people here in the UK, and people in the EU.

When we started this process, some accused us of treating EU nationals as bargaining chips. Nothing could have been further from the truth. EU citizens who have made their lives in the UK have made a huge contribution to our country. And we want them and their families to stay. I couldn’t be clearer: EU citizens living lawfully in the UK today will be able to stay.

But this agreement will not only provide certainty about residence, but also healthcare, pensions and other benefits. It will mean that EU citizens who have paid into the UK system – and UK nationals into the system of an EU27 country – can benefit from what they’ve put in. It will enable families who have built their lives together in the EU and UK to stay together. And it will provide guarantees that the rights of those UK nationals currently living in the EU, and EU citizens currently living in the UK will not diverge over time.

What that leaves us with is a small number of important points to finalise.  That is to be expected at this point in negotiations. We are in touching distance of agreement.  I know both sides will consider each other’s proposals for finalising the agreement with an open mind. And with flexibility and creativity on both sides, I am confident that we can conclude discussions on citizens’ rights in the coming weeks.

I know there is real anxiety about how the agreement will be implemented. People are concerned that the process will be complicated and bureaucratic, and will put up hurdles that are difficult to overcome. I want to provide reassurance here too.

We are developing a streamlined digital process for those applying for settled status in the UK in the future. This process will be designed with users in mind, and we will engage with them every step of the way.  We will keep the cost as low as possible – no more than the cost of a UK passport. The criteria applied will be simple, transparent and strictly in accordance with the Withdrawal Agreement.  People applying will not have to account for every trip they have taken in and out of the UK and will no longer have to demonstrate Comprehensive Sickness Insurance as they currently have to under EU rules.

And importantly, for any EU citizen who holds Permanent Residence under the old scheme, there will be a simple process put in place to swap their current status for UK settled status.

To keep development of the system on track, the Government is also setting up a User Group that will include representatives of EU citizens in the UK, and digital, technical and legal experts. This group will meet regularly, ensuring the process is transparent and responds properly to users’ needs. And we recognise that British nationals living in the EU27 will be similarly concerned about potential changes to processes after the UK leaves the EU.  We have repeatedly flagged these issues during the negotiations. And we are keen to work closely with EU Member States to ensure their processes are equally streamlined.

We want people to stay and we want families to stay together. We hugely value the contributions that EU nationals make to the economic, social and cultural fabric of the UK. And I know that Member States value equally UK nationals living in their communities. I hope that these reassurances, alongside those made by both the UK and the European Commission last week, will provide further helpful certainty to the four million people who were understandably anxious about what Brexit would mean for their futures.”

Safeguarding the status of citizens: negotiation update from the Home Office

On 13 October 2017, the Home Office circulated an update following the fifth round of the negotiation between the EU and UK.

Full text of the circular: 

“We are closer to agreeing all elements of the rights of EU citizens living in the UK and the reciprocal rights of UK citizens living in the EU – but there is more discussion required.

On key issues, such as the broad framework of residence rights for EU citizens and their family members, social security entitlements and reciprocal healthcare, the UK and EU have largely reached agreement.

On remaining areas, both the UK and EU are focussing on providing certainty for citizens as quickly as possible. Discussions this week have narrowed the focus to the key remaining issues for negotiations.

The UK has also provided further information on its settled status scheme to be introduced next year. It will be streamlined, digital and low cost. As we have said previously, you do not need a document now to prove that you are resident in the UK.

For those who already have EU permanent residence documents the process will be very straightforward, with greatly reduced or zero cost to applicants to update their status under the new scheme.

The talks also explored ways to fulfil the Prime Minister’s commitment to implement the Withdrawal Treaty fully into UK law, ensuring consistent interpretation through UK courts being able to take into account CJEU judgements.

We want to reach agreement on all areas as soon as we can, providing certainty for citizens.

The EU Council is meeting next week to discuss whether or not there has been sufficient progress in the current talks to move onto discussion of wider issues. Whatever the EU Council’s decision, safeguarding the status of EU citizens in the UK and UK nationals in the EU will remain a priority for the UK. As the Prime Minister said this week, “we want you to stay”.

Our negotiating position continues to be based on the proposal we outlined in June: safeguarding the position of EU citizens in the UK and UK nationals in the EU, withupdates provided as the negotiations progress.”

Citizens’ rights update from the Home Office – 29 September 2017

Today, on 29 September 2017, the Home Office circulated an update at the conclusion of the fourth round of negotiations between the UK and EU in Brussels.

Below is the full text of the circular.

Throughout the negotiation, the UK Government is remaining focused on providing certainty, clarity and stability for EU citizens living in the UK and UK citizens living in the EU, upholding the proposals set out in June.

This month’s round made progress on issues which will enable EU citizens in the UK and UK citizens in the EU to continue to live their lives broadly as they do now. This progress is detailed in the joint summary note published yesterday. Notably, good progress was made on protecting social security rights, which will provide EU citizens and UK nationals with more financial security.

The UK thinks that in some cases we must go beyond the strict requirements of current EU law in order to protect citizens. For example the UK Government has offered guaranteed rights of return for settled EU citizens in the UK who leave the UK, in return for onward movement rights for UK nationals living in the EU27.

If the EU agrees to this, it would mean that as an EU citizen with settled status you could leave the UK for more than two years without your status being affected. In return, as a UK national living in the EU, you would be able to move within the other Member States, as now. This is a bold and important offer which we hope the EU will consider carefully.

Regarding the enforcement of citizens’ rights after we leave the EU, the UK has been clear that, as a third country outside of the EU, it would not be right for the Court of Justice of the European Union (CJEU) to have direct jurisdiction.

However, we have listened to the concerns that have been raised and – as the Prime Minister set out in her speech in Florence last week – the UK has committed to incorporating the final withdrawal agreement fully into UK law and said that UK courts should be able to take account of CJEU judgments in order to ensure consistent interpretation.

After four negotiation rounds we are starting to get into the detail of how EU citizens will apply for a new settled status. The UK presented its early thinking and we will be engaging on the design and delivery of a proposed Settlement Scheme for EU citizens in the UK. We are committed to making the application as streamlined and user-friendly as possible for everyone.

Those who already hold permanent residency documents should not have to go through the full process, for example. We will also use data that EU citizens have already provided to minimise the burden of documentary evidence required.  

There will be more details in the coming months, but for the time being EU citizens need not take any action.

The next round of negotiations is due to take place during the week beginning 9 October 2017 and you will receive a further update then.

EU Exit Negotiations Update from the Home Office

Following the latest round of negotiations between the UK and EU concluded on 31 August 2017 in Brussels, the Home Office circulated the following update.

Progress was made on several fronts – including on the rights of EU citizens living in the UK and UK nationals in the EU.

On healthcare, for example, we agreed to protect the rights to reciprocal healthcare, including European Health Insurance Cards (EHICs), for EU citizens in the UK and UK nationals in the EU who are present on the day of exit.

Both sides also agreed that the rights of cross border workers should be protected.

On economic rights, we have confirmed the right of EU citizens to set up and manage a business in the UK, and the same applies to British citizens in their Member State of residence.

These points of agreement are good news but the discussions also highlighted where more work is needed.

This includes several areas where the UK wants to go further than the EU, such as posted workers (raised in the July round) and the mutual recognition of professional qualifications. The UK will also continue to seek clarification on how the EU’s stance on various issues would work in practice and be implemented within the EU27.

The next round of negotiations in September will build on progress to date with a view to reaching a future agreement on citizens’ rights. This table provides a comparison of the EU-UK positions on citizens’ rights and where outstanding issues remain.

As Secretary of State for Exiting the EU David Davis said yesterday, the UK government remains absolutely committed during the negotiation process to delivering the best outcome for the people of the EU and the UK.

We also recognise that EU citizens in the UK and UK citizens living in the EU would like certainty about future arrangements as soon as possible.”

Please visit Status of EU citizens in the UK: what you need to know for further details about the government’s proposal to protect the position of EU citizens in the UK – and UK nationals in the EU – published on 26 June. It contained these commitments:

  • EU citizens with settled status will continue be treated as if they were UK nationals for education, healthcare, benefits, pensions and social housing after we leave the EU.
  • No EU citizen currently in the UK lawfully will be asked to leave at the point we leave the EU. EU citizens will have at least two years to regularise their status.
  • The process to apply for settled status will be streamlined and user friendly, including for those who already hold a permanent residence document under current free movement rules. We expect the system to be up and running in 2018.

As the negotiations in Brussels progress, Home Office’s advice to EU citizens remains the same: you do not need to apply for documentation confirming your status now.

The rights of EU citizens have not changed. Last week, around 100 EU citizens received letters in error stating they were liable for removal from the UK. For the avoidance of doubt, these letters were sent in error and will have caused understandable distress. The Department has apologised to the individuals affected and they are being reassured that they should disregard the letters. The Home Office statement is here.

Home Office will continue to update on the negotiations and wider citizens’ rights issues over the coming months.

Safe Returns Policy – New Policy Applicable to All Refugees in the UK

All those who applying for settlement protection after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered. Those who still need protection at that point will normally qualify for settlement.

In March 2017, the Home Office announced that a new policy regarding all individuals with the Refugee Status. The policy has an effect for all existing and future applications for Indefinite Leave to Remain (‘ILR’) as a Refugee (a further step after Leave to Remain application). In order to make an ILR application a refugee has to use ‘SET(P)’ form. The ILR allows refugees to have further access benefits which were granted under the Leave to Remain application, such as, access to public funds, education, or employment. 

Unlike the old policy, the new policy does not grant an automatic grant of settlement.

The exemptions when the automatic grant was not given to the applicant by the Home Office are the following:

Trigger 1: Review on the basis of information relating to actions (or alleged actions) of an individual refugee. In this section, any actions taken by the refugee to be against the security of the UK and/or any (criminal) allegations may take away the Refugee Status from a refugee.

Trigger 2: Review on the basis of a significant and non-temporary change in the conditions in a particular country (cessation). This is where the country from which the refugee is feared from persecution will no longer apply due to significant and non-temporary change in country. This trigger, the Home Office claims, to apply to all applicants of ILR regardless of the timing of their application. This is what is most importantly implied by the new Policy.

A “significant and non-temporary change in country situation” is described in the new policy:

In relation to changes to the country situation, this refers to changes that are significant and non-temporary such that a fear of persecution can no longer be regarded as well-founded. Caseworkers should note that the overthrow of one political party in favour of another might only be transitory or the election of a new government may not automatically mean that there is no longer a risk of persecution for the individual refugee. The changes must be such that the reasons for becoming a refugee have ceased to exist.

This implies that a change of personal circumstances may disqualify a refugee who faces a misappropriate impact on the refugee after they settle, for instance, women refugees who are at risk of domestic violence or FGM. The policy acknowledges such circumstances by stating: 

Caseworkers must consider whether the grant of refugee status was for more than one reason. For example, a woman may have been granted on the basis that she refused to agree to a forced marriage. If she is now married, she may still face a risk of persecution if she has married without the consent of her family. They may also fall within another category of risk and as such, revocation would not be appropriate. Revocation action on grounds that the protection need has ceased to exist should only be considered where there is no risk of persecution or serious harm on any grounds.

Trigger 3: Where the Secretary of State for the Home Department has announced to Parliament a review based on a significant and non-temporary change to a country situation. (No countries as of yet have been announced).

There are also other reasons to refuse settlement for a refugee:

  • There have been changes in personal circumstances
  • The refugee has returned to their country of origin or habitual residence
  • The refugee has obtained a national passport from their home country
  • There is evidence the original decision to recognise refugee status was incorrect
  • Any dependents of the refugee have travelled home or obtained a national passport

Within the application it is important for the refugee to be in the UK during the application period and the application should include all dependents living with the refugee including those who were born in the UK since the moment when the Refugee Status was granted.

The applications prior to March 2017, took under 6 months and resulted in a grant of ILR, however with the Brexit atmosphere and harsher Immigration Law changes, the new policy intends to demonstrate, as Immigration barrister Colin Yeo claims, “either that the Government does not want refugees to integrate or at least that there is no-one sufficiently senior at the Home Office who is responsible for thinking about integration”. In such hostile environment, it has been raised repeatedly that the right legal advice is mandatory to ensure the success of a refugee’s application, however there are a few changes that should be known about the new policy.

The “Great” Repeal Bill – and the implications for European Citizens

Some say the Great Repeal Bill will be a milestone on Britain’s journey to being a modern democracy. Some say not. One thing for sure is that the Great Repeal Bill will be the most influential single act of regulation in UK history.

The European Communities Act (ECA) 1972 is a crucial legislation as it makes European Union law automatically binding in the UK. In the cases of any clashes with British law, the European Union law takes precedence. With Britain’s withdrawal from the European Union, the Great Repeal Bill will transfer, copy or amend all existing European Union legislations into domestic UK law. Simultaneously, the European Court of Justice (ECJ) will end its jurisdiction power in the UK.

The fundamental problem arises: when we go deeper into the discussion of Brexit, it seems more evident that there is no plan at all. Simply transposing all EU law into UK legislation will not be enough.

Theresa May published the Great Repeal Bill on July 13, 2017. David Davis, who is the Brexit Secretary, introduced the document and said: “this bill means that we will be able to exit the European Union with maximum certainty, continuity and control”.

However, ironically, the Great Repeal Bill grants the ministers with the powers to bypass the Parliament, the so-called Henry VIII powers which should not be acceptable in a democratic society. Parliamentary sovereignty is a fundamental principle in UK constitution.  Parliament must have a say in the progress of the Brexit negotiations.  It is argued that the government cannot be given the wide powers to alter the legislation without the scrutiny from Parliament.

Workers’ rights would be considered as the most crucial aspect which everyone concerns about the Great Repeal Bill. The government still retains the final right to amend or remove basic employment laws, for example, equal treatment for workers disregarding gender or ethnicity, excessive working hours, and redundancy protections.

Theresa May confirmed all EU citizens who have lived here for five years could apply for a “settled status”. This includes equal rights on healthcare, education and pensions. But here is the problem.

What about those EU nationals who have lived in the UK less than five years, but are currently working in the UK now? Does that mean they need to go back to their home countries and look for new jobs? What about the life they already settle here in the UK and already considered the UK as their homes?

It is necessary for the government to reassure the EU nationals which they would not be replaced if, in the future, they are required to obtain a visa to work in the UK.  They need to be given the confidence by the government which they would be still entitled to the same rights as the UK citizens. The implications of the rights for EU nationals further extend to equal pay, full holiday pay, anti-discrimination against sex, race, and disability, as well as agency workers protections. The proposals for the Great Repeal Bill did fall short of the promise made by Theresa May. No specific guidelines are being set out to adequately protect and maintain all workers’ rights that came from the EU.

Workers’ rights are not the only crucial aspect. The pharmaceutical industry is also at risk with Britain’s withdrawing from the European Union. With the toughening of immigration control, border checks for goods importing into the UK might create delays. Consequently, the supply of life-saving medicines could be severely disrupted.  For the pharmaceutical products which have a short expiration date, the cost might be significantly increased as well.  The negotiation of a new trade agreement between the UK and the EU would take several years beyond 2019. The two-year period is a tight period for Britain to reach a new trade agreement and smoothly exit from the EU.

Therefore, even if the Great Repeal Bill converts all EU law into UK law, there would be still a legal black hole the day Britain withdrawing from the European Union. People voted in the referendum was in the hope of making the UK better, but they did not vote to be worse off.  Assessing the potential problems facing right now, it seems that the Great Repeal Bill cannot actually guarantee “a maximum certainty, continuity and control within Britain”.  This will not be the desirable outcome as suggested by David Davis.

The question to be asked is: can the Great Repeal Bill really ensure a smooth transition as well as a thoroughly functioning legal system on the day Britain leaves the European Union.  The harsh truth is no.  According to the report issued by the Office for National Statistics (ONS), the latest recorded Consumer Prices Index (CPI) 12-month rate was 2.6% in June 2017. This figure is still above the Bank of England’s 2% target. With Britain’s withdrawal from the European Union, for example, the export of livestock will be prohibited. Consequently, the inflation rate is bound to keep going up.  The living standards for UK citizens will be squeezed.

After all, the Great Repeal Bill is only the first Brexit-related bills. The remaining seven bills yet to be set out to put Brexit into practice are customs, trade, immigration, fisheries, agriculture, nuclear safeguards, and international sanctions. At this stage, it is still unclear how the negotiations will unfold.

May’s proposal – Analysis of the policy paper on the safeguarding the position of EU citizens in the UK and UK nationals in the EU

The recent proposal of Theresa May from June 26th, 2017 has been quoted as a ‘generous offer’ to EU citizens offering everyone who had acquired permanent residence a new ‘settled status’.

 

At the face value, it appears to be a good deal, however when one reads the small print it becomes apparent that there is no value in the offer, and it lacks the certainty that Theresa May continuously refers to. The offer has come after the EU Council Decision of 22nd May proposing their policy on safeguarding the position of EU citizens in the UK and UK nationals in the EU, therefore both sides have now adopted their position. However, the UK’s offer is nowhere close to what EU would like to secure as a part of the exit deal.

 

The Government website provides a short summary of their ‘promise’.

 

“Since the result of the referendum last summer, the UK Government has made it absolutely clear how important it is that we secure as early as possible both the rights of EU citizens in the UK and UK nationals in EU member states. We are now seeking to provide EU citizens with certainty about their future by publishing a policy paper which sets out our offer to them.“

 

Theresa May has since triggering Article 50 made it clear that she wants nothing else but to provide the certainty for all EU citizens in the UK and for those Brits living in the Member States. However, the proposal offers no certainty and is lacking definitive answers and dates.

 

The UK continues to affirm that the rights of the EU nationals are protected and are to be complied with under the EU law until the official day of Brexit.

However, this gives little certainty as to the future rights of over 3 million EU citizens living in the UK even though the UK has proposed a new streamlined process for the European citizens to register in order to gain their new ‘settled status’ as per the generous offer of Theresa May.

 

This online application will apply to all EU citizens who have been continuously living in the UK for over 5 years. This requirement is the same as under current EU law where those with over 5 years of residence can apply for a document certifying permanent residence. Moreover, since the criteria that will apply are national, not based on EU law, the calculation of this period might differ. The proposals says ‘The type of application you’ll need to make will depend on your circumstances, when you moved to the UK and how long you’ve lived here’. The questions arise in terms of what type of circumstances an EU citizen needs to have in order to be able to stay?

 

While the UK promises to make the process as streamlined as possible for the EU citizens who already have the Permanent Residence Status, they will still need to apply for ‘settled status’ after Brexit in order to be able to remain in the UK. The UK position is that a document certifying permanent residence may mean nothing in the future. What is the reason for this? Does it mean that the future criteria will be certainty stricter?

 

Moreover, why the current permanent residence document under free movement rules is not sufficient to prove (for example, to employers or public service providers) that you have permission to continue living and working legally in the UK after Brexit. It seems that the criteria that are to be applied for the new ‘settled status’ will be much more stricter than under EU law if the Home Office cannot respect the now issued documents certifying permanent residence rights.

 

Further questions arise as to the cost of the new ‘settled status’.

Theresa May refers to a ‘reasonable’ cost but under the current British Immigration Rules the fee for indefinite leave to remain which is equivalent to the ‘settled status’ is set at £2,297. Will this be the price the EU nationals would have to pay in order to stay?

 

The offer gives some consideration to those citizens who will not qualify for ‘settled status’ as they will not complete their 5 years period before the ‘cut-off date’. However, nowhere in the proposal the date is mention. It may be the date of triggering Article 50 or the Brexit Day, but it could also potentially be historic.

If Theresa May wanted to give certainty to EU citizens she would have set the ‘cut-off date’. Those EU citizens who arrived and became resident before [un]specific date but who have not accrued five years’ will be able to apply for a temporary status. Moreover, those EU citizens that arrive after the [un]specified date will be allowed to remain in the UK at least temporary and may become eligible, however there should not have expectations of guaranteed settled status.

The proposal mentions ‘People who arrive after the cut-off date will be able to apply for a permission to remain after the UK leaves the EU, under the future immigration arrangements for EU citizens’.

What are the future immigration arrangements? Where is the certainty that Theresa May was offering?

 

The most troublesome part of the proposal is the lack of consideration for a Non-EU family members of EU nationals. What will happen with them since they no longer be able to live in the UK under the more lenient regulations of the EU. Those Non-EU nationals who have divorced their EU partners may also not be eligible to stay. The offer also fails to consider whether a UK citizen who currently is residing in Spain will retain their full free movement rights to move to Germany for example in the future.

 

Moreover, there is also no certainty as to what the ‘grace period’ will be for the EU citizens to apply for their new status. This will ‘be confirmed during negotiations’ and ‘if you haven’t received a document confirming your new immigration status by the end of this [again unspecified] period you will no longer have permission to remain in the UK. What if some EU citizens do not meet their future immigration requirements of which we have no mention whatsoever?

 

The UK offer fails to discuss the judicial enforcement, and while the EU wants the rights of EU nationals to be enforced by the Court of Justice of the European Union (CJEU), and the rules in the withdrawal agreement in accordance with pre-Brexit case law of the Court, the UK rules out the jurisdiction of the CJEU.

 

Much of the proposal uses words like ‘seek to ensure’ or ‘akin’ which does not by definition refer to certainty. It is clear that the UK position indisputably offers worse terms both for EU citizens in the UK and UK citizens in the EU. The EU proposal asked for the permanent residence documents to be respected without the need of ‘transferring’ of the status.

 

While the UK will exempt people from the requirement to have Comprehensive Sickness Insurance, it has been argued that the current UK law breaches EU law anyway. Therefore, it may seem like a ‘generous offer’ but in reality is nowhere close.

 

The proposal also is silent on British Citizenship, it does not mention anywhere how a ‘settled person’ can acquire British citizenship in the future. It only mentions that it will be possible. Does it mean that the criteria will be different and/or more expensive to those currently under EU law?

 

At the moment, it seems that the only way to completely guarantee your continued right to live and work in the United Kingdom is to become a British citizen. In order to do this, the first step is to acquire Permanent Residence.  Although, becoming a British citizen may also be a disadvantage for some nationals or if you have non-British family members living with you in the UK who are relying on your status under EU law. While, we are still awaiting a decision of CJEU in Lounes, the Advocate-General has said that non-EU nationals may be given the right to reside in a Member State in which an EU family member lived before the family member acquired the nationality of that country. However, since the UK wants to rule out the jurisdiction of the CJEU, there would be little time to benefit from any positive upcoming decision.