Following an approach from the group representing Spanish nationals in the UK, a group of delegates received an invitation from the European Parliament's largest party, the European People's Party (EPP), to address their EPP Working Group of Legal and Home Affairs meeting on EU citizens' rights and the UK's position in light of the recent EU Brexit talks.

 

Euronews coverage can be found here:  

 

As part of that delegation, I attended and addressed the meeting particularly on the legal aspects and practical issues posed by the UK's current position (which seeks to restrict/abolish current family reunion rights of EC nationals) versus the EU position (which seeks to maintain the EC right to future family reunion).

 

I juxtaposed the current EU rights with the restrictive family reunion provisions in the UK Immigration Rules to which UK citizens and those settled here are subject to (such as the minimum income requirement of £18,600) which has led to the rise of Skype families and the Adult Dependent Relative Rule (within the UK immigration rules) which effectively makes family reunion with other adults such as parents or grandparents impossible (as opposed to EC law which allows dependent relatives in the ascending line to join an EU nationals exercising treaty rights in the whole of the UK):

 

I also asked the meeting to support achieving a new joint EP Hearing before the EP Resolution on Brexit talks progress is tabled around 03/04 October 2017 to enable civil society in the UK and EU to have a final input on whether progress by the UK in terms of citizens’ rights is indeed sufficient.

 

ISSUES RAISED AT THE MEETING

 

The meeting was chaired by Esteban González Pons who heard a range of other party issues before turning to the issue of Brexit in relation to citizens' rights. The following is a summary of the main points covered by those addressing the meeting:

 

Fiona Frank-Godfrey from the group British in Europe (who also spoke on behalf of The3Million) presented her organisation’s detailed response to the third round of negotiations including stressing that there should be no loss of Permanent Residence after 2 years' absence from the UK where free movement falls out of the equation (as it would after Brexit). She stressed the need for the ring-fencing of citizens’ rights, the continued need for UK citizens in the UK to retain free movement rights and the recognition of qualifications in the whole of the EU (as demanded by the UK Government) and not just in the country of residence or in case of cross-border working. By reference to Greenland, she stated that there was a precedent for the ringfencing and retaining of EU rights for UK nationals in Europe and EU citizens in the UK which - in any case - constituted a finite group of 4.2 out of 500 million EU inhabitants

 

Academic Anne Wesemann (Teaching Director Law, The Open University) lead an academic address on the particular misunderstandings about Free Movement/Citizenship in the UK and stressed the importance of the role of the European Court of Justice as guarantor of citizens’ rights after Brexit. Recalling that she was born in the GDR at the time of the Wall and referring to her own young daughter, she called on the EC to build bridges rather than allowing the building of new walls (between the UK and the EU) which would risk arising if the UK left the EU.  

 

Journalist and disabilities activist Christiane Link, who is also the Chair of Disire, made a strong appeal for the rights of disabled EU nationals affected by Brexit as it appeared that such citizens (and their particular concerns) were not being heard. Ms Link also raised the important point regarding carers not being considered as exercising Treaty rights as they are not deemed to be 'working.' She appealed to the meeting for another joint hearing at the EP like the Joint Meeting on 11 May 2017, and sought the EPP's support to this end help as further input needs to be received from citizens affected on whether the UK has made sufficient progress.

 

Ignacio Madariaga (from Españoles en el Reino Unido) raised the issue of the impact of the Brexit process on EU mobile citizens. He specifically raised the issue of dual nationality for those affected by Brexit, particularly regarding member states who do not allow dual nationality (as Spain) which put those affected by Brexit in a particularly difficult situation. He called on States to consider enabling those affected by Brexit to acquire dual nationality. He appealed for support mechanisms for those forced back. He made a powerful reference to Mr Pons' 'leaving Europe is leaving our shared dreams' in the context of how this can be applied to individuals and families’ lives who face the uncertainty of possibly having to give up one nationality or the other because of Brexit.

 

Jan Doerfel, 13.09.2017

 

Most strikingly, the UK Government’s proposal is adamant that after the UK leaving the EU, free movement rights will not “carried forward as an EU legal right into the post-exit UK legal regime”. This means that – according to the proposal - from the exit date, EU nationals and their family members will no longer be covered by EU law.

 

 

Instead, the UK Government intends to create “new rights in UK law for qualifying EU citizens resident”[1] in the UK before the UK’s exit and rejects the continued jurisdiction of the Court of Justice of the European Union in relation to the enforcement of these rights.

 

 

In order to avoid a “cliff-edge”, the UK Government is planning to introduce a period of “blanket residence permission”/temporary leave for all lawful EU residents (and their family members) for a period expected to last two years to start immediately after the UK’s exit from the EU (para.24 & 26). At the latest upon expiry of that period of leave, EU nationals and their family members will need to regularise their status in order to be allowed to remain.

 

 

 

What do the “New Rights” consist in and who qualifies?

 

 

(i)                 EU citizens

 

 

EU citizens will be granted settled status (indefinite leave to remain) if they have been resident in the UK before the specified date (see concept below) and have completed 5 years’ continuous residence in the UK.

 

 

Those who arrived before the specified date and have not accrued 5 years’ residence, will need to apply for temporary status and can apply for settled status once they have accrued 5 years’ continuous residence.

 

 

EU citizens who arrived after the specified date “will be allowed to remain in the UK for at least a temporary period and may become eligible to settle permanently, depending on their circumstances – but this group should have no expectation of guaranteed settled status” (para.6). Their status will depend on unspecified future Immigration Rules.

 

 

Economically inactive EU citizens will not need to have held “comprehensive sickness insurance” as a requirement of obtaining settled (or temporary) status (para.6, para.22).

 

 

(ii)        Family Members

 

 

The proposal set out that “(f)amily members of eligible EU citizens (who can be either EU citizens or non-EU nationals) who are resident in the UK before we leave the EU will also be eligible to apply for settled status, provided that they too meet the criteria above and have been in a genuine relationship with an eligible EU citizen while resident in the UK. Family members who do not yet have five years’ residence will also be eligible to apply for permission to stay (‘leave to remain’) to enable them to accrue these.” (para.29)

 

 

Family members are defined as including “direct family members (spouse/civil partner, direct descendants in the descending line (under 21 or dependent), direct dependants in the ascending line), including those with retained rights, and extended family members whose residence has previously been facilitated by the Home Office.”

 

 

Criminality and good character

 

 

One of the essential conditions for obtaining settled status is that “an assessment of conduct and criminality” is being undertaken “including not being considered a threat to the UK” (para.21) and that the Government intends to “apply rules to exclude those who are serious or persistent criminals and those whom we consider a threat to the UK.” (para.6)

 

 

 

Who is not covered by the proposal?

 

 

The proposal defines EU citizens as:

 

 

“any person who holds EU citizenship as established under Article 20 (1)[2] of the Treaty on the Functioning of the European Union, save that for current purposes, persons who are EU citizens solely by way of their British nationality are excluded from the scope of this term.”

 

 

This appears to suggest that dual nationals may be covered by the proposals but not family members of British citizens who have exercised treaty rights in another European country (“Surinder Singh” cases).

 

 

(i)                 Family members of British nationals falling under the Surinder Singh route

 

 

The proposal does not set out what – if any route – is open to third country family members (including direct and extended family members as well as family members who have derivative or retained rights of residence) of such British citizens who are already in the UK and when (and under what conditions if any) they will be able to apply for further leave to remain or settlement.

 

 

(ii)               Persons with derivate rights of residence under EC law

 

 

Furthermore, the proposal does not cover the position of those persons/family members of EU citizens and British citizens (who have been treated as EU citizens under the Surinder Singh route) who are currently in the UK on the basis of EC law i.e. those who have a derivative rights of residence under EC law (including based on cases such as Ruiz Zambrano (C34/09), Ibrahim (C130/08), Teixeira (C480/08), Chen (C-200/02) and Ahmed (Amos; Zambrano; reg 15A(3) (c) 2006 EEA Regs) Pakistan (Rev 1) [2013] UKUT 89. These include:

 

 

• (primary) carers of EEA children in the UK who are financially independent
• children of EEA former workers currently in education in the UK
• (primary) carers of children of EEA former workers whose children are currently in education in the UK
• (primary) carers of British children
• (primary) carers of British or EEA[3] dependent adults
• children of (primary) carers who qualify through one of the above categories

 

In the light of Theresa May’s recent express promise on 23^rd June 2017 that families in the UK will not be split and considering that EC law (and CJEU oversight) will not continue to apply and hence will not be able to ensure a continued right of residence for those family members based on EC law, as an absolute minimum, all family members present in the UK before the exit date from the EU (including those with derivative rights of residence) of EC nationals and UK nationals (under the Surinder Singh route as well as those whose presence in the UK has given rise to EC law claims to residence) should be given the possibility to apply for settlement under the new route after 5 years’ of continuous residence – in the words of the Government - “to suit the demands of this unique situation” (para.22).

 

 

(iii)             EU nationals and their family members who arrived after the “specified date”

 

 

There is no indication in the proposal what these “post-exit immigration arrangements for EU citizens who arrive after the specified date” will be but the proposal expressly states that they should have no expectation to be able to settle in the UK (see also below). This is particularly of concern where the specified date is supposed to fall before the exit date.

 

 

The UK Government indicated that the provisions governing the ability “to obtain further or indefinite permission to stay [of those individuals] will depend on the rules in place at the time at which they apply” which “will be decided by the UK closer to the time” (para.33) or “as soon as possible” (para.12).

 

 

All EU nationals and their family members who enter the UK before the exit date from the EU should be able to enter into the route for settled status.

 

 

 

Administrative Procedures

 

 

Whilst there is no need for EU citizens to apply for EU documentation at present, the document does indicate that all EU nationals and their family members, including those who already hold a permanent residence card or a card certifying permanent residence under EC law, will still need to apply for settled status (although that process will be as “streamlined as possible”) (para.10 & 37):

 

 

“EU documents certifying permanent residence will not be automatically replaced with a grant of settled status, but we will seek to make the application process for settled status as streamlined as possible for those who already hold such documents.” (para.37)

 

 

A fee will be payable and UK Government’s proposal suggests that the fee will be set at a “reasonable level” (para.36).

 

 

It is clearly unreasonable to expect those that have already obtained documents certifying permanent residence (which is equivalent to settled status) to enter into yet another application process at additional costs and inconvenience. There is no good reason which can justify this requirement.

 

 

“Specified Date”

 

 

The UK Government maintains the possibility of a specified date no earlier than the triggering of article 50 (on 29^th March 2017) and no later than the exit from the European Union on the basis that prior to the Brexit referendum & the triggering of article 50, EU nationals coming to the UK could have had the expectation to settle here (presupposing also that this expectation was not justified thereafter – para.3 and 6):

 

 

“3. … EU citizens who came to the UK before the EU Referendum, and before the formal Article 50 process for exiting the EU was triggered, came on the basis that they would be able to settle permanently, if they were able to build a life here.”

 

 

As stated at para.6) of the proposal,

 

 

“the ‘specified date’ will be no earlier than the 29 March 2017, the date the formal Article 50 process for exiting the EU was triggered, and no later than the date of the UK’s withdrawal from the EU”.

 

 

I believe that maintaining the illusion of a specified date prior to the exit date is purely a negotiating ploy.

 

 

The UK Government must be aware of the EU[4]’s categorical opposition to any date earlier than the UK’s exit from the EU and clearly is aware that it cannot specify such a date unilaterally. As admitted in the proposal:

 

• “We expect to discuss the specified date with our European partners as part of delivering a reciprocal deal” (para.6)

·        

• “If the UK and the EU agree to apply a specified date prior to the UK’s withdrawal from the EU, those EU citizens and their family members who arrive in between the specified date and the date the UK leaves the EU will continue to exercise free movement rights up until the point the UK leaves the EU. From then on, the grace period of blanket permission will apply to them, while they make an application to the Home Office for permission to stay (‘leave to remain’), in accordance with the new rules applying to EU citizens, which are yet to be determined. If the specified date is set at the date of the UK’s withdrawal from the EU, these new post-exit arrangements would automatically apply to EU citizens and their family members who arrive after that date.” (para.32)

 

 

 

As above, the UK Government also admits that until the date the UK leaves the EU, EU rights in all spheres continue to exit for UK nationals in the EU and for EU nationals in the UK (para.6[5] and para.32).

 

 

In the light of that recognition and the knowledge that EU institutions (including the European Parliament) will not agree to a pre-exit cut-off date, the continued reference to a “specified date” earlier than the actual exit date is a game playing and time wasting exercise which (moreover) will be confusing and worrying for a substantial portion of concerned EU citizens who arrived after 29^th Mach 2017 and hence could otherwise fall within the group of those the UK Government is currently telling that they would otherwise have to fear for their ability to settle in the UK permanently. As stated by the Government at para.6:

 

 

“those EU citizens who arrived after the specified date will be allowed to remain in the UK for at least a temporary period and may become eligible to settle permanently, depending on their circumstances – but this group should have no expectation of guaranteed settled status”.

 

 

 

Further comments

 

 

In 13 places in the document, the UK Government is using ‘aspirational’ as opposed to ‘binding language’ (see para.7, 10, 22, 37, 49, 56 and 57) e.g:

 

 

• “the UK will seek to ensure that citizens with professional qualifications obtained in the EU27 prior to the UK’s withdrawal from the EU will continue to have those qualifications recognised in the UK (and vice versa).” (para.7)
• “the UK will seek to ensure that professional qualifications obtained prior to the date of the UK’s withdrawal from the EU continue to be recognised after the UK’s exit from the EU. The UK will also seek to ensure that where a person has begun an associated process that has not concluded by the withdrawal date, arrangements will be made to allow that process to continue. The UK will also give due regard to these professionals’ ability to practise without unfair detriment or discrimination.” (para.56)
• “With regard to other economic rights, the UK will seek to protect the right of establishment (the right to be self-employed and to set up and manage an undertaking) for EU citizens resident in the UK before the specified date and vice versa. We will also seek to ensure that UK nationals in the EU can continue to provide cross-border services within the EU27.” (para.57)
• This does not amount to a sufficient guarantee and is out of place in relation to matters that lie in the UK Government’s power and can be legislated as binding commitments.

 

 Jan Doerfel, 27.06.2017.