Lessons we still haven’t learnt – a year on

23 June 2017

It would seem that Theresa May has a flair for the dramatic these days.

An out of the blue, snap election. Announcing her opening gambit on the rights of EU citizens on the eve of the anniversary of the referendum. Presenting said opening gambit in vague terms and making anxious EU citizens wait over the weekend before presenting the detail in a subsequent position paper the following week.

It’s a tendency to the theatrical that we could do without in these uncertain times.

So, if the timing of the announcement was ill conceived, what of the substance?

Well, it may be too early to tell as our PM is keeping us on tenterhooks with the full position paper due to be published next week (we’ve already waited a year, apparently we must wait longer still). While detailed analysis and comparison with the, considerably more generous, EU proposal will follow release of the position paper, we can draw some early conclusions.

What we do know are the ‘principles’ which underpin the UK’s starting position according to a background note from senior UK officials.

These include:

  • Certainty – the UK is committed that no EU citizen currently in the UK lawfully will be asked to leave the UK when we leave the EU and any EU citizens lawfully in the UK at the time we leave will have the opportunity to regularise their status to remain in the UK.

The wording here is interesting, and possibly concerning. Firstly, the use of the word ‘lawfully’ raises questions about whether EU citizens will need to be exercising treaty rights. Tied to this, of course, is the difficult topic of Comprehensive Sickness Insurance. It is undoubtedly true that many EU citizens (including many spouses of British citizens) have been self-sufficient but without private medical insurance, which the UK still insists upon. Will the UK proposal contain any provisions to deal with this?

Secondly, EU citizens who have been living in the UK perfectly regularly in accordance with EU law, may take issue with the idea that they need to ‘regularise’ their status, a term often used to describe over-stayers or those in the UK illegally and seeking to obtain lawful leave to remain.

  • The opportunity to achieve settled status: any EU citizen in the UK with five years' residence, at a specified date no earlier than the trigger of Article 50, and no later than the UK’s exit from the EU, will be granted settled status. We will be aiming to treat them as if they were UK citizens for healthcare, education, benefits and pensions. Any EU citizens with less than five years who arrive before the cut off date will be given time to stay until they have the five years of residence to obtain UK settled status;

Several questions arise here. What is ‘settled status’? Is it permanent residence (the status EU citizens can currently achieve after five years) or is it indefinite leave to remain (the status non-EU citizens can achieve)? Is it something completely new? If so, what are terms? How is it lost? When can a person with settled status apply for naturalisation? What documents will be given to confirm this status?

  • A specified cut-off date no earlier than the trigger of Article 50, and no later than the UK’s exit from the EU. While the specific date will be the subject of discussion, the PM made clear that all EU citizens currently here will have their rights protected under EU law until the date we leave the EU;

Well this has simply confused matters further! How can employers employ newly arrived EU citizens when they don’t know whether the cut-off date has already passed to enable them to remain in the UK after we leave the EU? The only fair proposal here is to say that anyone who arrives while we remain part of the European Union should be allowed to stay. The Government has previously baulked at such an unequivocal statement, worried it may open the floodgates. Anyone watching the migration statistics, and drops in arrivals, particularly in vital industries such as nursing, would draw the conclusion that the UK is becoming increasingly unattractive. We should be more worried about vacant nursing posts than anyone rushing to get a foothold in post-Brexit Britain.

  • A grace period: the length of this period is still to be determined but expected to be up to two years – to allow people to regularise their status. No one will face a cliff edge. So all EU Citizens either here today or arriving before we leave the EU will have the opportunity to regularise their status under new rules;

It is not clear what is meant here! If it is time for EU citizens to apply for their new status, two years will not be enough. Some EU citizens won’t have reached five years in the next two years and the Home Office does not seem to be properly resourced to document three million people in this time frame. Once again, the reference to ‘regularising’ status is deeply unhelpful. It suggests EU citizens have placed themselves in this uncertain, irregular position and we are giving them the opportunity to fix this. In reality, the opposite, is in fact true!

  • Streamlined administration: The PM signalled that the administration of this system would be as streamlined as possible – with more details to be set out next week – using digital tools to register people in a light touch way.

Any measures which will streamline the process are very much welcome. The online form is now standard for most application types and extending this further, as well as the on-going simplification of the guidance and documents required is going to be an important part of processing applications as quickly as possible.

All of the above is also, of course, dependent on the same terms being extended to British citizens in EU states (who might, quite reasonably, ask if they can have the more generous EU backed proposal instead!).

Theresa May has termed her proposal ‘fair and serious’ and said that it will ‘give as much certainty as possible to citizens who have settled in the UK’.

Well, it gives significantly less certainty than the EU proposal. And, let us not forget, we’ve waited a whole year for this. Apparently uncertainty for millions of families before now was something which could be borne.

Further, there is no reference to the non-EU family members of EU citizens in these early comments. What is to become of them?

I have asked previously if EU citizens in the UK ought to place their trust in Theresa May’s Government and wait for her to resolve their status in the negotiations. Nothing we have seen as yet suggests such trust would be well placed. In an Evening Standard editorial, it has been alleged that it was Theresa May who blocked the resolution of this issue in the immediate aftermath of the referendum, refusing to offer guarantees to EU citizens at that point. While unconfirmed and Theresa May can’t recall blocking such a plan, it would be consistent with her stance as Home Secretary towards immigration more broadly.

When it comes to immigration, Theresa May has proudly touted the policy of hostility. This is not a slur, but for her, a badge of honour with the term ‘hostile environment’ coined in the Home Office over which she presided. Let’s hope that hostility doesn’t come to define these negotiations and let’s hope that the detail which emerges next week provides a more positive outlook.

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