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Following hot on the heels of the hardline British Future report on the rights of EU nationals in the UK after Brexit, the House of Lords EU Justice Committee has today published a report on the same subject. It is a far more comprehensive and comprehending piece of work and it is clear that the authors have fully understood the problems facing EU nationals in the UK, UK citizens in the UK and the scale of the task facing the UK Government.
In summary, the report recommends that full EU law rights be preserved for existing EU national residents of the UK. The report does not make assumptions about the future shape of post-Brexit immigration policy, nor does it propose a particular cut off date. If EU free movement law continues, for example because the UK remains within the EEA, then there is no need for a cut off date. If free movement law does end on Brexit then the cut off date will become very important for relatively new arrivals.
The difficulties caused by the UK Government’s hard line on Comprehensive Sickness Insurance are recognised, as well as the fact that there are many EU residents, some very long term, who have never acquired rights of residence for various reasons. They are lawfully present but will never acquire permanent residence. The issue was illustrated with evidence from several individuals, including a Mr Whitehouse:
“I can declare an interest in this because my mother in law has been in the UK for 9 years (Polish), her daughter (my wife) is a UK citizen by naturalisation but my mother in law did not work in the UK and the Home office says she has therefore not exercised her treaty right and is not eligible for permanent residence. We asked because she thought after 5 years she would be able to apply for naturalisation which she would be proud to obtain.”
There is no firm recommendation on the future status of such individuals, but their existing rights to be physically present in the UK and to work, study and so on would be preserved under the approach recommended in the report.
The report recognises that it is basically impossible for the Home Office to process applications for permanent residence or Indefinite Leave to Remain for 3 million EU citizens in the time available. That must be right. And even if it could be managed, EU citizens would be left with far fewer rights than they currently enjoy if they ended up with ILR at the end of the exercise, an important point which the report highlights and recognises.
The report also tackles, but ultimately ducks, the very difficult question of how rights might be enforced after Brexit. Experience suggests that in the absence of a court with the power to adjudicate and enforce, rights are mere words on paper. And this is a two way street: what about the rights of UK citizens living in the EU? What if an EU Member State unilaterally changed the Brexit deal or breached it in some way?
The report suggests adopting mechanisms already tried and tested with the EEA and Iceland and implies but does not explicitly state that the Court of Justice of the European Union could be used to police the rights of existing residents as at the date of Brexit.
The report ends by urging the UK Government to offer a unilateral guarantee to residents from other EU Member States.
The report sets out a realistic and practical approach which would properly preserve the rights of EU nationals currently in the UK and which would give the UK Government the best chance of preserving the position of British citizens in the EU.
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.
