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The rights of EU nationals in the UK post-Brexit – five pessimistic predictions


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The UK government’s policy paper on EU citizens’ rights in the UK after Brexit, released in June 2017, offered reassurances about “safeguarding” rights, while leaving substantial question marks hanging — in particular about what kind of residence would be required to qualify for the new category of “settled status”.

After the release of the government’s technical note in November 2017, and the joint report from the EU and UK negotiating teams the following month, it now seems that “residence” means residence in accordance with the conditions in Directive 2004/38/EC.

But that directive is riddled with gaps that disadvantage particular groups of people and there are already substantial administrative obstacles under the current system. This blog draws upon recent research into the reality of free movement and equality treatment rights for EU nationals in the UK, and this written submission to the House of Commons Exiting the EU Committee, to posit five modest, concerned predictions. In short: women and children face greater risks of exclusion from settled status, while unclear definitions, congested decision-making processes, and increased complexity will heighten the risk of administrative injustice.

Of course, I write in hope that if we are alive to these risks, I will be proved wrong.

1. Women will fall through the gaps

Article 16 of Directive 2004/38, which describes who qualifies for permanent residence under EU law at present, is a faulty yardstick for determining who gets settled status. In working with EU nationals on the EU Rights Project, it became clear how easy it was to fall through the gaps of the directive, and for some long-term residents with lengthy but complicated employment histories to never have acquired a recognised right of permanent residence under Article 16.

Yet there seems to be there seems to be a substantial degree of agreement between the UK and EU negotiating parties on using this yardstick. The suggestion that existing permanent residence rules will continue to determine status does not appear to take account of the difficulty some people face at the moment. Assessments for permanent residence can be unforgiving of “gaps” in work history, or even just of gaps in evidence as to work history.

People whose work histories have been punctuated because of childcare responsibilities, the need to look after disabled or elderly relatives, or reasons related to their own disability, fare particularly badly in this respect. Their permanent residence five-year “clock” keeps getting restarted. The approach also disadvantages part-time workers, who may have difficulty getting their work recognised in the first place (see the prediction below on definitions).

There is one type of EU-law based right to reside, conferring equal treatment, based on care — the Teixeira right to reside for the primary carer of the (school-age) child of an EU national worker. But this right is not based on the directive, and has been explicitly excluded in EU case law from counting towards the five-year permanent residence clock.

As the current proposals only centre on rights under the directive, it seems that periods of residing while exercising Teixeira rights — even periods of well over a decade — will not count towards settled status.

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All of this, of course, is code for excluding and disadvantaging women — who are disproportionately represented among the ranks of carers and of lone parents in particular. Women are also poorly served by the conditions for retaining worker status in the directive, which allow some people to keep their worker status, and so not have that important five-year clock restarted, during some temporary interruptions. But the provisions in question prioritise male social security risks. Temporary breaks due to temporary caring arrangements (e.g. for a period of illness of a child) are not covered. Nor does the directive recognise that domestic abuse is a social security risk; victims may need to relocate, which can create a gap in their work histories.

2. Children will fall through the gaps

Children are not on the radar of the directive. They have no rights in themselves, as they are not (and cannot be expected to be) economic actors. Their rights have been treated as parasitic upon the rights of their parents.

For example, in 2016 the Upper Tribunal found that even a 17-year-old child who had been born in the UK, and who had never lived anywhere else, and was abandoned by her mother at the age of 16, did not have a right to reside.

Children may not be able to easily establish and rely upon their parents’ right to reside, even if their parents have that right. If the child is in care, and/or estranged from the migrant worker on whom their directive-based rights depend, so cannot adduce evidence of parental status, they have no chance of fitting within Article 16.

At the moment, not having a right to reside means not having entitlement to a range of welfare benefits. But what it will mean post-Brexit is having no permission to stay and being required to leave, on pain of committing a criminal offence. And this will apply to people who have been in the UK for many years. Residence, integration, place of birth, languages spoken, the lack of connections elsewhere — all look to be disregarded.

3. There will be arguments about the definitions of work, continuity and self-sufficiency

The technical note suggests, rather cryptically, that there will be no application of a “genuine and effective work” test. This begs the question of how work will be defined and identified, and therefore what evidence will be required.

In the UK, it is the Minimum Earnings Threshold that has been problematic. The MET in theory creates a two-tier test compatible with EU law, but in practice, creates a high earnings threshold that is all but determinative. Many part-time workers, or workers on short, fixed-term, and/or temporary contracts, or zero hours contracts, have fallen foul of this and had their work re-classified as not-work. Those past re-classifications and negations may have dire consequences for future settled status claims.

As for defining continuity, the note suggests that the government will not be too rigid about continuity of residence in the UK, but does not tell us what approach will be taken to continuity of a right to reside. So we do not know what breaks in the right — because of falling through the gaps in Directive 2004/38 at various points — will be deemed to have restarted the five-year clock.

Comprehensive Sickness Insurance will not be required of those wishing to demonstrate periods of self-sufficiency. But we do not know what will be required. UK case law suggests that there may be a high resources hurdle for anyone wishing to assert self-sufficiency: resources to last a full five years. This may be the case even where an EU national simply wishes to claim that they were self-sufficient for a short period between jobs to avoid a right to reside gap and a restarted clock.

4. The decision-making machinery will be woefully congested

All claimants whose right to reside is currently determined by the DWP or HMRC, and more, will now be funnelled through the Home Office. That department has already shown signs of being under strain due to a rise in permanent residence applications, with a steady increase in waiting times.

The former head of Home Office immigration enforcement gave evidence to the House of Commons Home Affairs select committee in October last year. David Wood noted that the pressures on the department, with only minutes to process each application, affected the quality of decision making. He described it as an “ineffective sausage factory” with “low grade staffing”. The committee’s report on the issue, released last week, amply reflects such concerns.

In early 2017 the department started actively putting people off from applying for residence documents, even though it has only been dealing with applications from a relatively small fraction of the EU population. This may only serve to tighten the future bottleneck. The proposed process involves status checking for all EU nationals resident in the UK – all 3.3 million+ of them.

And yet the government’s technical note suggests that decisions will receive more consideration, be more nuanced, subject to more favourable discretion, and involve more dialogue with claimants than they do now. Without a revolutionary change of administrative culture and a vast increase in resources, these promises are simply not plausible. The gathering storm of paperwork could lead to administrative cataclysm.

5. Things will go wrong

Findings from the EU Rights Project suggested that the risks of administrative injustice become more acute during periods of legal transition.

Brexit is, to put it mildly, a substantial legal transition, with a complete overhaul of rights, statuses and conditions — each of which must be accompanied with a mountain of guidance produced at speed. Decision-makers face a massively increased workload, and a whole new world of complexity and confusion. Decisions will have to, of necessity, be made abruptly, to the point of arbitrariness, with little room for accuracy, never mind nuance.

The risks of administrative injustice are towering, and that is in the context of declining legal aid and a growth in “advice deserts“.

It is vital that we comb through the developing proposals, as and when they are released, and demand answers about their detailed implementation. If rights cannot be properly administered, they are rendered meaningless.

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