Brexit – Trust is hard earned and easily lost for EU citizens in the UK

In the recently revised guidance on the rights of EU citizens issued this week, the Government is asking for EU citizens to trust them. The message to this newly issued guidance is that nothing has changed and EU citizens in the UK do not need to do anything as a result of Article 50 being triggered. Most notably, they are actively discouraging EU citizens from applying for a document confirming their residence status in the UK –

“Important information

You do not need to do anything as a result of Article 50 being triggered. There will be no change to the rights and status of EU citizens living in the UK while the UK remains in the EU.

Under EU law you don’t need a document to confirm your residence status in the UK (see note 2).

If you’re planning to apply for a document just to confirm your status, you can sign up for email alerts instead.”

These email updates will let you know about developments that might affect you, including the steps that you may need to take to confirm your status in the UK after we leave the EU.

This advice is undoubtedly legally correct. We have spent much of the last year seeking to reassure EU citizens that while the UK remains in the EU, nothing has changed in law so clear recognition of this is welcome.

However, the triggering of Article 50 has put a countdown clock on our continued membership of the EU, so a restatement of the current position is only reassurance up to March 2019. It is our strong suspicion that this new Government advice that EU citizens keep calm and carry on is seeking to limit what is undoubtedly a rapidly growing number of applications for EU residence documents. The UK Government under European law is restricted to charging £65 for EU applications and is required to make decisions on these applications within six months. Despite recent extortionate hikes to immigration fees for non-EU citizens, it is almost certain that Home Office resources are being stretched beyond capacity and this latest approach is intended to limit demand for residence documentation.

So, the Home Office is most likely drowning under the wave of applications and is consequently asking EU citizens to do nothing and trust them to resolve this issue at an early stage of the upcoming Brexit negotiations.

Has the UK Government and Home Office acted in such a way as to inspire this trust from the three million EU citizens in the UK?

Let’s examine the evidence –

• Theresa May and her Government have refused to offer any unilateral assurances to EU citizens residing in the UK, insisting that to do so would undermine their bargaining position in the negotiations which will follow now Article 50 has been triggered. This is despite assurances about the position of EU citizens in the UK that were espoused by many pro-Brexit high profile figures throughout the referendum campaign and immediately following the vote.
• As EU citizens have, in many instances for the first time, begun to engage with the UK immigration system, we have seen applications refused, often only because the applicants have not understood what they needed to include to make a successful application. Rather than contact these applicants and ask for the missing documentation, the Home Office has refused applications and in some cases issued legally incorrect letters warning long time lawful residents that they must leave the UK. Not only has this approach, completely lacking in common sense and practicality, caused distress and anxiety to a part of society whose entire sense of belonging has been upended in the months following the referendum, it has almost certainly created extra work for the Home Office as these applications have to be resubmitted and reconsidered.
• The House of Commons rejected an amendment to the EU (Notification of Withdrawal) Bill which would have guaranteed the status of non-UK EU citizens lawfully resident in the UK on 23 June 2016. While this cut-off date was problematic (as above, and as recognised by the UK Government, EU citizens remain here lawfully and can continue to arrive until we have left the EU, so any guarantees should extend to them), the failure to offer assurance to even this group is notable.

Considering their history to date, it is therefore entirely understandable that EU citizens living in the UK may have reservations about trusting this new ‘wait and see’ approach. The new approach also completely fails to address the practical issues which EU citizens are starting to encounter and the realities they will almost certainly be faced with once the UK has left the EU.

The most recently released guidance confirms the following –

“The UK government has been clear that we should always put citizens first. We want to strike an early agreement about the rights of EU citizens living in the UK, and UK citizens living in the EU and give citizens as much certainty as possible, as early as possible.

Once we have an agreement with the EU, further information will be published on how we will secure the status of UK citizens in the EU.”

While we can query whether those ‘citizens’ the UK government is seeking to put first incorporates EU citizens living in the UK or if this only relates to UK citizens, we do know that EU citizens who have not secured and evidenced their position, once the UK has left the EU are almost certainly going to encounter difficulties and some of these issues may even arise before then.

Non-EU citizens face a growing number of hurdles to overcome to function in UK society as the Government’s hostile environment continues to bite. Due to this, employers, landlords, banks and the DVLA are all increasingly aware of their responsibility to check the immigration status of individuals. Daunted by the uncertainty of EU citizens’ on-going right to reside in the UK, there are growing numbers of EU citizens being asked by their employers to obtain documentation showing their right of residence, of landlords querying EU citizens and of EU citizens being questioned more intently at airports (with stories in particular of EU students being required to evidence health insurance at UK ports).

The Government has compounded this confusion with their ‘Check if someone can rent your residential property’ online wizard which wrongly implies that if an EU citizen does not have a residence document or a number of other documents, they will not have a right to rent. This seems entirely contradictory to their most recently issued guidance.

Where does this leave EU citizens now?

If EU citizens are inclined to show a healthy scepticism to the latest approach of the UK Government, then what are their options? As a starting point, it remains very important that they are clear on their current position. Are they exercising treaty rights? Have they acquired permanent residence? Do they have evidence of this? Can such evidence be obtained? Even if EU citizens do want to take the Government’s advice and wait and see, they will almost certainly be required at some point to evidence their status and residence so collating this evidence now will be valuable time spent in any event.

Trust is hard earned and easily lost. The Government has gambled on EU citizens’ trust. Whether EU citizens choose to place their trust in this Government one more time, remains to be seen.

Further information

If you are affected or have any questions about the issues raised in this blog, please contact Katie Newbury or a member of our immigration team.

You may be interested in reading our fact sheet with practical steps EU citizens in the UK can take now. 

See also our other blogs for further updates and opinion on other immigration and Brexit related issues.

You may also be interested in visiting our Brexit hub for further implications of Brexit on international families.