The mask slipped a few weeks ago when Home Office Minister Brandon Lewis told German newspaper Die Welt that EU nationals who have not successfully applied for the new immigration status by a deadline will be subject to “the existing immigration rules.” What this means in plain English is this: the estimated hundreds and thousands of people affected will not be able to work, rent or access free healthcare, all with the threat of deportation hanging over them.
Who are these people who might not apply for the EU Settlement Scheme? They are those who believed the repeated messages of “nothing will change for EU citizens” and tweets like those from the Department for Exiting the European Union saying: “We have protected the rights of EU citizens in the UK.” They are those who think they already have a permanent immigration status as they hold “Permanent Residence” and don’t realise they still need to swap this for the new status. They are those non-EU family members who have already gone through an often painful process with the Home Office in the past, and think the scheme does not apply to them as they already have their “papers”. They are those who might not be aware at all of this brand-new system – for example children in care, the elderly, disabled EU citizens, students and those simply unable to cope with a digital-only application. Campaign groups like British Future estimate that around 600,000 people might not apply for the new status, with disastrous consequences.
The Home Office’s settled status marketing campaign is ill-designed and doesn’t reach vulnerable groups – this is left to civil society and charities. There is an air of indifference to the Home Office’s communications – happy to stress how friendly case workers are (undoubtedly this is true) and that they will look favourably on every application. Therein lies the rub. What about those who do not apply, through no fault of their own? They will lose their safety net, become undocumented and therefore targets for the hostile environment. The only way to avert this is to change the scheme to a simple registration for a status which EU citizens would already have because it would be automatically guaranteed by an Act of Parliament.
Brexit is a huge threat to the fundamental rights of five million EU citizens – the 1.2 million British citizens living in the EU and the 3.6 million EU citizens in the UK. They moved to another or even several EU countries and built their lives on the legitimate expectation that EU citizenship would protect them. They were never asked to obtain visas, were never told their stay would be temporary, and (with the exception of national voting rights) were treated in pretty much the same way as citizens of their host country.
For the past three years, the May and Johnson Governments have promised to guarantee EU citizens’ rights but nothing has been enshrined in law. Currently, the new Settled Status only confirms EU citizens’ right to residence. Other rights stem from this right but these can be weakened by future governments, including the right to work, the right to have your immediate family members live with you, and the right for you and your family to access healthcare services.
Alongside the ticking time-bomb of the Settled Status Scheme, we see a slow erosion of those rights which are only fixed in secondary legislation and can be changed without much scrutiny or parliamentary debate.
The currently paused Withdrawal Agreement Bill for example has delegated powers that have the potential to affect individuals with truly fundamental consequences. Professor of European Law Michael Dougan lists a few – amenability to deportation, access to judicial protection - that deserve to be properly checked and double checked. It is left to organisations like the3million to watch what happens to the rights to data protection and the right to non-discrimination while government ministers are simultaneously celebrating cutting down EU immigration while endlessly telling us we are their friends, neighbours and colleagues and they want us to stay.
The proposed way to guarantee some of those key rights in secondary legislation needs ongoing, careful scrutiny by organisations like the3million.
Take for example the draft Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019. If approved by Parliament, they will allow Ministers to remove the rights of EU, EEA, Swiss and Turkish nationals to own and manage companies or to provide services in the UK on the same basis as UK nationals.
They will also remove their right to bring nationality discrimination claims in relation to these rights.
Under the terms negotiated in the Withdrawal Agreement the UK government has committed to protecting these rights. The UK is still to make the agreement law though and as it stands these Regulations would remove our rights if the deal were not implemented. We were promised that nothing would change, deal or no deal, and it is therefore imperative that this instrument be changed.
Regulations like these open the door to a future loss of rights for people who are already insecure, whose sense of identity has moved from “you are welcome here” to “we tolerate you as long as you contribute economically”.
This is the human consequence of Brexit for EU citizens. To protect them the3million have drafted an amendment to the Withdrawal Agreement Bill (Amend 16) and are lobbying MPs in the coming days to get them to back the amendment which “provides for all EU citizens who are resident in the UK before exit day to have the right of permanent residence, whether or not they have been exercising treaty rights, and makes sure that every person who is entitled to settled status has the same rights.”
Organisations like the3million who give a voice to their concerns will be needed for years to come.
Maike Bohn is a spokesperson for the3million.