Britain’s miserly post-Brexit offer to EU nationals shows a disdain for rights | Colin Yeo | Opinion
Last week, over a year after the Brexit referendum result, we finally learned what Theresa May has planned for the 3 million EU citizens and their family members living in the UK. In short, it is to treat them almost exactly the same as other citizens of foreign countries, with virtually no EU law rights retained at all.
Free movement of citizens will end on Brexit day. EU citizens wishing to come and work in the UK will in future need to apply for leave to enter on arrival. If they wish to work, they will need to obtain a work permit under the byzantine points-based system. If they want to join family members, they will have to contend with some of the most family-unfriendly immigration policies in the world, according to the Migrant Integration Policy Index.
Quid pro quo, British citizens wishing to work in Italy or Germany will need to apply for work permits under the national laws of those countries, with EU nationals given first preference. Those travelling for business will need to be careful not to breach standard visit visa rules on conducting such business. British citizens wishing to retire in Spain will have to meet the same Spanish immigration law requirements as for American, Indian and other foreign nationals. British visitors to the EU will not be permitted to remain for any longer than six months.
It is more or less the same for existing EU residents of the United Kingdom, who would be treated almost identically to other settled foreign nationals. The UK’s proposal refers to a special new “settled status†being created for EU residents but then goes on to reveal that this is actually just indefinite leave to remain, exactly the same settled status as any other foreign national can acquire after living in the UK lawfully for five years.
The proposal also makes clear that EU citizens will actively have to apply for this status within a transition period. Failure to do so will lead to the person concerned committing a criminal offence and being removed. EU residents who have already lived in the UK for five years will be eligible to apply. Those who have not lived in the UK for five years and who arrived before a yet-to-be-announced cutoff date will be allowed to stay to build up the five year period and then apply for this “new†settled status.
Those who arrive after the cutoff date will not be allowed to apply for settled status. Instead, they will have to contend with whatever work permit or family settlement rules exist at that time for all other foreign nationals. The cutoff date could be any time after article 50 was triggered on 29 March 2017, so EU nationals who have arrived in the UK since then may find they have to leave again.
The settled status will be lost after two years of absence from the UK. This is how settled status works for other foreign nationals, as Irene Clennell found to her cost. The same rule also applies to EU law permanent residence, but within the EU this was never a problem because an EU national who lost their permanent status could easily re-enter under and build it up again if they wished. This right of simple re-entry will be lost if the UK proposals are implemented.
There is no suggestion of automatically “passporting†to the new status those with the right of permanent residence. EU nationals will in future need immigration status documents over and above their passports, unlike at present. Only family members who arrived before Brexit day will be allowed to enter and remain under EU law.
The “retained rights†that Theresa May touts are exactly the same as those already conferred on foreign nationals with indefinite leave to remain: access to the NHS and the right to claim welfare benefits. It would not be possible to treat EU nationals worse than other foreign nationals so this is in reality a bare minimum.
It all begs the question of how different the offer would be in the event of a “no deal†Brexit and why Theresa May has waited until now to reveal this miserly offer. It should surely be inconceivable that EU nationals and their family members would be made illegal, given only a short period to stay or be treated worse than other foreign citizens permanently settled in the UK by being stripped of the right to access the NHS and welfare benefits.
Oddly, given the refusal to offer a guarantee to ensure reciprocation, the UK proposal is completely silent on how the offer might be reciprocated for UK citizens living in the EU. Logically, they would have to apply for local immigration status under the laws of the 27 countries in which they currently live.
And how would citizens enforce their rights if there is backsliding, either by the UK for EU residents or by Spain, Germany or any of the other 27 EU member states in the case of UK citizens? What if the Spanish government later removed the right to healthcare, for example? Again, the UK proposal does not say.
Rights are not worth the envelope that they are scribbled on the back of unless they are enforceable. That seems to be how the UK wants it. In contrast, the EU has already proposed that all EU residents in the UK and UK residents in the EU retain exactly the same rights they currently have and that these rights are enforceable though the existing tried and tested dispute mechanism of the court of justice of the European Union.
The EU is serious about protecting citizens’ rights. The UK is not.
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