On 21 June the Home office has issued a 60 page long “Statement of Intent” (SoI) on how EU citizens will be able to secure settled status in the UK after “Brexit”, with immense resonance in the press and blog sphere. Is a mere Statement of Intent worth the hubbub?
I argue that it is: while the document (and even more so the abbreviated form for public consumption) may seem to faithfully implement what was agreed with the EU, there are some surprising inconsistencies with those negotiations. Beyond this the SoI expresses confidence in the government’s ability to provide reliable on-line and automatic processes in stark contrast with the incompetence evidenced through the Windrush affair or the routine letters sent to EU citizens requiring them to leave the country. The SoI is thus anything but a document suitable to provide certainty for EU citizens who wish to remain in the UK post “Brexit”, and should be criticised, if there is any hope that the final regulations are fit for purpose.
The first inconsistency with the state of withdrawal negotiations is, of course, that the Home Office implements a withdrawal agreement which has not progressed beyond draft stage. That progress is lacking, because the UK government has not agreed to decisive elements, such as safeguarding the position of Ireland / Northern Ireland through a legally enforceable protocol. But this shall be left to one side here.
Second, the Statement of Intent does not align with all those provisions that are, according to the EU Commission’s record, agreed between the UK and the EU negotiation parties. These inconsistencies start with seemingly small matters. The UK government does not commit to return any passports that must be sent in before deciding on the application for settled status (4.9), while the draft withdrawal agreement provides that on application the document is returned immediately (Article 17). Everyone who is waiting for their passport to be returned by the Home Office knows that this is more than a nuisance, and that “immediate” is a poor description of handling any submitted document. More seriously, the SoI also does not provide clearly for rights of future children to join those EU citizens settled or pre-settled in the UK under all circumstances, limiting the rights of children that are not British by reference to “certain circumstances” (3.9). Thus, having children outside of the UK (e.g. in the care of family) may beome a risky affair for those wishing to continue living in the UK with their children.
These discrepancies are, however, not the main concern EU citizens should have in relation to this “SoI”. The Home Office relies on automated processes for recording residence, which are based on data by the UK government on employment as well as receipt of benefits. The latter harbours the danger of generating rejection of settled status for those who receive in work benefits, as well as for those who do or did receive benefits during a period of unemployment after they had used their rights to work as EU citizens. While it would be unproblematic to offer automatic recognition of data to all, requiring all applicants to use automatic recognition as a matter of cause is likely to produce unnecessary rejections and uncertainty. This is all the more worrying, as the rights to challenge a rejection not only through an administrative procedure (5.18 SoI), but also through judicial review are not yet spelled out. The SoI expresses the intention to comply with the withdrawal agreement in this respect. However, the text suggests that no judicial review shall be allowed for refusal of settled status before 30 March 2019. This does not find a basis in the Draft Withdrawal Agreement other than the statement that states may, but do not have to, allow application for settled status before that date.
The draft withdrawal agreement is implemented strictly where this is detrimental for the applicants. E.g. the routine check of criminal records (5.16) will be carried out. These are allowed under Article 17 draft withdrawal agreement only for limited purposes, namely to establish whether a legitimate reason for refusing settlement exists (Article 18). No such limitation is specified in the Statement of Intent. Further, the SoI strictly limits acquisition of settled status if permanent residence is interrupted for more than 12 months. While this is in line with Article 16 Citizens’ Rights Directive, it is rather impractical in occupations where working abroad is the rule, e.g. in academia, as duly noted by universities.
There is one positive element: in keeping with past declarations, the Home Office states that it will not require proof of “comprehensive sickness insurance”, i.e. basically proof of coverage by either a private or public health insurance for the majority of risks. Of course it would be better if the final withdrawal agreement would specify that in a country with a NHS type health care system (e.g. Spain or Sweden as well as the UK), access to this system under the national law is sufficient proof of comprehensive sickness insurance. This would be one positive element the UK could bring to the negotiations.
The SoI specifies that Irish citizens do not need to apply for settled status. This may seem a welcome way to save £ 65 per adult and £ 32.50 per child for an application, without any scope for reduction or even instalments in case of financial difficulty. However, the lack of settled status under the withdrawal agreement will prove detrimental when it comes to immigration of family members: the settled status under the withdrawal agreement gives the same rights are EU law in this respect and is thus more generous than national law, under which family (re)unification is contingent on earning relatively high incomes. EU citizens, by contrast, have the right to be united with their families even if they are working on low incomes..
Overall, it should have become apparent that the Home Office’s efforts at generosity and creating certainty have not (yet) achieved their aim, while there are some shortcomings even with regard to the draft withdrawal agreement. Thus, UK citizens in other EU countries are better off for the lack of such a document for the time being. The main issue for anyone who used their free movement rights under EU law is the uncertainty generated by the lack of progress in the negotiations on the withdrawal agreement, arguably caused by the lack of internal direction at the part of the UK…
Professor of Law and Jean Monnet ad personam Chair for EU law & policy, Queen’s University Belfast
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