Last Thursday, the3million alongside British in Europe presented evidence at the European Parliament on citizens’ rights and the future of the 3 million EU citizens living in the UK after Brexit. This is the full speech.

“Ladies and Gentlemen, Members of the European Parliament,

I thank you for this opportunity to present the current state of play for EU citizens in the UK.

Where are we now?

The EU Parliament has called for the full set of rights that EU citizens currently enjoy to be incorporated in the Withdrawal Agreement. And while there has been some progress at Phase 1, what has been agreed falls very short of protecting the full bundle.

I will now go through a few key point:

• When looking at settled status and the registration process:

The negotiation directive of May 2017 clearly stipulated that any document to be issued in relation to residence rights, should be declaratory in nature, simply confirming someone’s rights. However, what has been agreed in December is that MS can now follow either a declaratory or a conditional, aka constitutive, process. A constitutive process means that we now have to apply for our rights. This not only represents a departure from the directive, and goes beyond EU law, but will also be detrimental to preserving the full bundle of rights.

It is very unfortunate, to say the least, that most of the attention has focused on the administrative process of registering EU citizens in the UK rather than on the essence of the ‘settled status’ model. This has led to conflating support for a light-touch process, which we all welcome, with support for ‘settled status’, which the3million totally rejects.

This is allowing the UK to proceed with ‘settled status’, which in our view is not only a far lesser status with fewer rights, but also one that will have significant consequences for all EU citizens living in the UK. Therefore, the3million rejects ‘settled status’.

The fact is ‘settled status’ needs to be seen in the context of UK immigration law:

  • indeed, whichever way you look at it, settled status does not confirm but confers rights, following UK immigration rules, and is therefore not a declaratory process, contrary to what is frequently claimed

  • the consequences of not meeting all the requirements of settled status or of, say, a mistake in the application process, are potentially extremely severe for those concerned, throwing applicants into the ‘hostile environment’ and putting them at risk of deportation

  • you may also be aware that the UK government has introduced legislation on a new exemption to data protection which would remove:
    o the fundamental right for individuals to access the data the Home Office holds about them, and for lawyers and caseworkers the possibility of understanding decisions and errors made by immigration authorities
    o the obligation on the UK government to process data in a fair, transparent and proportionate fashion.
    This undermines the whole idea of data protection and is contrary to civil liberties and human rights. It is also very concerning considering the well-known error rate on the part of the Home Office, an error rate which is likely to increase as the UK deals with an exponential number of applications for the new status.

The danger is that this exemption will become an administrative device that will seriously disadvantage people using the Immigration Appeals process.

• The introduction of systematic criminality and security checks:

This raises the question: how can the process for registering EU citizens for the new status, a process which mustn’t “be stricter than those laid down in today’s EU free movement law”, allow for such checks to become systematic, contrary to what happens in the current PR process?

They also create another layer of administrative burden on the UK, as every single applicant will have to be scrutinised in this way.

• the3million also opposes the early introduction of voluntary registration to settled status:

We consider that it makes no sense to implement a scheme that will have no legal value until the Withdrawal Agreement has been ratified.

There may also be a divergence between the voluntary scheme and what will be in the final text.

There will also be no statutory appeal mechanism for failed applicants.

While the status quo will probably then apply, it is quite possible that failed applicants may be deterred from applying again for whatever scheme is agreed in the end, for fear of further rejection, which means they would become undocumented migrants, therefore likely to be removed.

• On the issue of “lawful residence”:

There is still a lack of clarity, there’s a lot of confusion about how the UK is interpreting this
criterion, potentially leading to applications being rejected.

With all this in mind there is a danger of leaving many individuals and groups behind for two reasons:

o one is a rights issue:

A number of groups aren’t covered in the current agreement, for example family members of UK citizens returning to the UK, Zambrano cases, those temporarily absent from their country of residence at exit day, carers, etc.

o the other is a process issue:

many groups such as the elderly, persons with disabilities, children, children in care, victims of trafficking, the homeless, certain communities and many others, are at risk of being left behind because they may have difficulty proving that they are “lawfully resident”. The practical help that the UK proposes to remedy some of these issues is woefully inadequate in nature and in scope.

Effectively, how the Home Office intends to deal with these issues doesn’t inspire confidence that the method will be equitable, non-discriminatory, smooth and transparent, ensuring that the full bundle of rights is indeed protected.

However, there is a solution to this and the3million’s Alternative Proposal shows that there is a fairer, simpler, and more flexible alternative to ‘settled status’.

• On the issue of oversight:

the3million has real concerns that the UK’s continued frequent incorrect interpretation of EU law will go on after the UK leaves the EU. A multi-pronged approach to oversight, protection and implementation of our rights will therefore be required:

  1. We need our rights to be protected by the CJEU, therefore we urge you to push for the ‘sunset clause’ on CJEU oversight to be lifted

  2. At present legal aid in the UK is only extremely rarely awarded for immigration cases, and access to justice for EU citizens with limited income is a significant area of concern

  3. There is a need for effective monitoring by the Commission, to ensure that the Home Office and UK Courts correctly interpret the citizens’ rights part of the Withdrawal Agreement.

Other issues that are yet to be discussed, negotiated or agreed:

• What about future partners?

Family reunion must be extended to future spouses of the protected group. This would apply to both EU27 nationals in the UK and to Britons in Europe who may wish to return to the UK at a later date with foreign spouses and families.

Their current exclusion from the Withdrawal Agreement will have a disproportionate impact on younger generations as well as citizens who, for instance following a divorce or the death of their spouse, may wish to remarry after Brexit. Preserving citizens’ rights in the future goes back to the fundamentals of European citizenship.

• When it comes to EU citizens being treated on equal terms.

A lot of claims have been made by the UK that we will have equal access to rights and services post Brexit, but there remains a lot of uncertainty.

One quick example: We increasingly hear EU citizens sharing experiences of difficulties in trying to access health services and being asked to prove their right of evidence.

• EU citizens in the UK too stand to lose parts of their freedom of movement rights e.g.:

o On the issue of ‘life choices’ versus rights:

It is highly regrettable that the December Joint Report states that the “effective exercise of rights is based on ‘past life choices’”.

This is wrong: rights lead to life choices, not the other way around… this distinction is important as it lies at the heart of EU citizenship

o With a huge question mark over the future of professional and academic qualifications after Brexit, what will those EU workers who rely on them to work in the UK and/ or in the EU do to continue earning a living? The UK may well re-join Bologna as a third country at some point post Brexit…but what will happen until then?

o A lot of the benefits attached to freedom of movement are linked to the country of residence rather than nationality. Post Brexit, EU citizens living in the UK stand to lose access to EU funded opportunities, and more, by virtue of living in the UK, which will then have become a third country.

o The Withdrawal Agreement must also protect us all from becoming third country nationals if we leave our host state for longer than 5 years: we ask for a life-long right to return, something the UK had originally offered.

To sum up:

The ‘Common Understanding’ reached in Phase 1 will not sufficiently protect us, owing to glaring shortcomings, omissions and ambiguities.

Therefore, the rights of EU citizens in the UK still risk being severely limited. Let’s be very clear: settled status will throw us under a bus and into the ‘hostile environment’, potentially putting hundreds of thousands at risk of not being allowed to stay.

Finally, let’s remind ourselves of the first base principle by which negotiations on citizens’ rights must be conducted: this is first and foremost about people’s lives, before trade deals and before processes. We have relied on our rights under EU law and we expect the full bundle of these rights to be protected.

This is so that we can continue to live our lives as we always have, as promised by both the UK and the EU on numerous occasions since the referendum.

Thank you, merci!”🔷


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(Cover: YouTube/the3million - Anne-Laure Donskoy and Jane Golding speaking at the European Parliament, 1 February 2018.)