How the rights of the 3 million EU citizens in the UK and the British citizens in the EU27 were mere collateral damage from Theresa May’s obsession to end free movement ‘once and for all’.
First published in January 2019.
A fundamentally dishonest debate around immigration and free movement has resulted in the vote to leave, the removal of rights from five million citizens, and will either ensure a bad Brexit if Brexit goes ahead, or will make another referendum just as divisive and poisonous as the last.
This is not only down to media demonisation of free movement; it permeates our entire political system, including both front-benches, right up to the Prime Minister pronouncing that free movement is coming to an end ‘once and for all’ – as though a great evil is finally rooted out. It is the headline in her social media videos. It has now been baked into the political declaration on the future relationship with the EU. It is central to the long-delayed immigration white paper.
The referendum campaign
It is undeniable that the vote would not have gone the way it did without the weaponisation of a decades-long anti-immigration sentiment. One particular dishonesty persists, namely the conflation of free movement with immigration (and even asylum seekers and refugees). Within the rest of the EU, there is a lot of anxiety about immigration from outside the EU, but very little about free movement within the EU. Indeed, free movement is incredibly popular, even in the UK especially when explained properly as the reciprocal right that it is (63% agreed and 20% disagreed that even after Brexit, “UK and EU citizens who wished to do so, could live and work in each other’s countries”).
As regards those five million citizens who had already exercised free movement, far-reaching promises on their rights were made during the campaign. Both to British citizens in the EU (UKinEU) (“the Vienna Convention offers blanket protection for ALL the ‘acquired rights’ of 1.3mn British citizens living in Europe in the event of Brexit, including free movement”) and to EU citizens in the UK (EUinUK) (“There will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present”).
These promises have proved empty. Instead of taking the moral high ground and immediately declaring that EUinUK would indeed lose none of their rights, Theresa May allegedly took the advice of Sir Ivan Rogers that our rights were ‘one of the few cards’ she had to play. Even before Article 50 was triggered, May disingenuously attempted a divide and conquer approach between member states. It was obvious that single-issue pre-negotiations could never have been successful, but the bargaining chip narrative of not being able to guarantee the rights of EUinUK unless the rights of UKinEU were guaranteed took hold. Those British citizens in the EU did not fall for this, writing an open letter to the UK Government urging them to guarantee EU citizens’ rights unilaterally and immediately before the triggering of Article 50.
That the Government’s concern for UKinEU was cynical rhetoric became very clear once Article 50 was triggered. There was a complete lack of engagement with the two campaign groups representing EUinUK and UKinEU.
In June 2017, the UK published its offer on citizens’ rights. Not only did it ignore the EU’s earlier comprehensive opening offer (explicitly including full free movement for UKinEU), it did very little to address the fate of the Brits abroad and moreover proposed to remove many rights from EUinUK. The most glaring of these related to family reunion.
The EU protects reasonable family reunion rights for anyone who exercises free movement. However the UK has reduced these rights for its own citizens to the point where it is now the lowest ranking country in this respect. Indeed, it is virtually impossible for anyone to bring a dependent parent to the UK.
When advocating for the retention of our rights, we often face a familiar refrain “you can’t possibly expect to have better rights than British citizens”.
But this ignores both that this amounts to a stripping of existing rights, and that these rights are in any case also (still) available to all British citizens – old, young, wealthy, poor – who exercise free movement.
These rights mean that I was able to move from Rotterdam to London, safe (?) in the knowledge that I could move my now widowed mother close to me should she need my care in the future. They also mean that a British citizen could move from Birmingham to Berlin without fearing new relationships causing impossible future dilemmas. EU citizenship protected me and that British citizen (even once returned to the UK) from the new draconian UK rules – until Brexit.
The negotiations changed after the UK’s offer. It became apparent that the UK’s ‘primary aim was to reduce the rights of EU nationals in the UK, not to protect those of UK citizens on the continent’, and the EU reduced their offer accordingly – notably removing ‘onward free movement’ and instead offering to secure the rights of British citizens only in their member state of residence.
Meanwhile, many concerned EUinUK, myself included, wanted to obtain proof of our rights or apply for British citizenship. This rapidly exposed the debacle of the ’85-page Permanent Residence’ application involving a 29% rejection rate, a 10% error rate, and a hostile Home Office. Many were not even eligible to apply, as only at the point of trying to do so did they find out about a hitherto-unknown requirement for ‘Comprehensive Sickness Insurance’ (CSI). The European Commission had launched an infringement procedure against the UK in 2012, noting that access to the NHS should suffice as compliance with the CSI requirement. The easing of this requirement, not requiring legislation, would have sent a clear message to EU citizens that they were indeed welcome.
Where are we now?
The negotiated result, encoded in legal text in the Withdrawal Agreement, is a substantial loss of rights on both sides – worth a read as they are explained by impacts on individuals rather than by a dry position paper.
However, a ‘no deal’ situation would be even worse.
The UK finally, on 6 December, published its technical notice on what will happen to EUinUK in the event of no deal. Rather than unilaterally honouring what it can from the Withdrawal Agreement, it restricts rights still further. Bringing that back to my personal case, it means that I need to tell my 80-year old widowed mother who is currently living a full and happy life in the Netherlands and has no wish to move anywhere, that she’d better not delay becoming frail until after 29 March 2022, because the doors to the UK will shut to her then. It is beyond me why the government should wish to be so unnecessarily mean after having agreed to protect this right in the Withdrawal Agreement. It has the mark of a migration-obsessed Prime Minister all over it.
In the Q&A of the EU’s ‘Contingency Action Plan’, the Commission calls upon Member States to “take measures so that all UK nationals legally residing in a Member State on 29 March 2019 will continue to be considered as legal residents of that Member State without interruption”. Take a step back from this to consider the implications, and you can see why British in Europe talk about a rough landing.
In any case, unilateral measures from both sides do nothing to address those interlocking issues (such as pension contributes and healthcare) which were painstakingly negotiated last year.
Which is why an open letter to Barnier and Raab was published in September, and a letter to Theresa May was hand-delivered to No 10 in November. Both letters ask for the citizens’ rights part of the Withdrawal Agreement to be ringfenced and implemented under Article 50 even in a no deal scenario. Predictably, no reply has been forthcoming to either letter. Five million of us are having to grip on tightly in the ultimate game of brinkmanship that May is playing with her Parliament.
What about ‘Settled Status’?
Many think that the rights of EUinUK are all sorted – we have heard Theresa May and others repeatedly say, ‘we want you to stay’.
However, the devil is in the detail. The3million raised a set of questions in April, which Caroline Nokes (the Immigration minister) promised to answer by June. Six months later, there is still no sign of any satisfactory answers. Meanwhile the settled status beta trials are throwing up many problems that we had raised – even basic ones such as how to cope with hyphenated names and special characters.
EU citizens will not receive a physical document proving their rights – instead having to convince landlords and employers to engage with a digital system. The Government’s ‘Hostile Environment’ entirely operates around undocumented citizens (rather than its stated aim of illegal immigrants) and there is much evidence, also seen in the Windrush scandal, that discrimination is inevitable when landlords are turned into delegated border guards.
Honest monitoring is essential. The scheme needs to handle over 3 million people in an extremely short timescale – playing catch-up after never implementing a registration system unlike virtually all other EU countries. The official report on the first beta trial contained alarming inaccuracies – teething problems are understandable but misleading reporting is inexcusable.
But most concerning is the inadequacy of the outreach required. the3million’s response to the scheme’s initial publication highlighted that “the only registration scheme around the world that came close to achieving an 100% take-up was in India, but that was afteralmost £1bn was spent on an awareness and implementation programme”. The Home Office has created a fund of £9 million.
What future awaits?
Theresa May’s foreword to the immigration white paper, finally published on 19 December 2018, is her interpretation of Brexit in a nutshell: “When the British people voted to leave the European Union in 2016, they sent a clear message: they wanted things to change. One of those calls was for Britain to take back control of its borders. As we leave the European Union, free movement will end.”
Free movement is a reciprocal right to be removed from British people. We always had control of our borders. And as for change, the UK will be shocked about the eventual shape of that change. The service industry will be hard hit as it loses its current access to the single market. Fruit is already rotting in the fields for lack of labour. The chair of the British Medical Association has said “we believe that Brexit will be harmful to patients, to NHS staff and to the NHS as a whole”, citing staff shortages as a major factor.
And what evidence has this policy been based on? The Migration Advisory Committee report confirms that over their lifetime EU citizens contribute £78,000 more than they receive in benefits and cost in the provision of public services. Theresa May suppressed up to nine studies that found immigration does not hit UK wages.
Contrast this with Nicola Sturgeon’s statesmanlike reply when confronted with the statement “polls suggest that Scotland has concerns over high levels of immigration as well”. She cites evidence, and states “politicians have a duty sometimes to take on difficult subjects”. We are in dire need of leadership, rather than leaders merely following a populist sentiment.
Theresa May’s interpretation of Brexit, rooted in her creation of the hostile environment as Home Secretary, has been to stop foreigners coming into the UK at all costs. Even when those costs include the continued success of the UK service industry, the care of the old and the sick, or five million citizens whose lives are the most immediately affected by a referendum that most of them were not entitled to vote in.
Five million children of a messy divorce. Most divorcing parents would put the UK and EU negotiators to shame and would genuinely put the interests of their children first rather than using them as bargaining chips and then discarding their rights as collateral damage.🔷