Ten things wrong with Theresa May's "offer" to EU citizens


We are still here and we are still waiting for a decent response - we have not heard it yet
We are still here and we are still waiting for a decent response - we have not heard it yet

It is astonishing how easy it is to create a good impression simply by appearing to stop doing something which you shouldn't have been doing in the first place.

Even more so when you are the Prime Minister of Britain and it is clear as a bell that you have no intention of keeping your promises.

Theresa May's "offer" to EU leaders at a dinner in Brussels about what she intends to do with the 3.5 million of their citizens who are building their lives in the UK falls into that category.

That's why we need to unpick what has been said and examine this piece of sophistry for what it is.

The exam question that Theresa May tried to answer this evening is the one that we set in 2013 and to which there is still no satisfactory answer today.

" What would happen to EU citizens in the UK if there was a referendum on Britain's membership of the EU and the UK voted to leave the EU?"

The answer she gave was along the following lines:

"EU citizens will acquire a new, settled status if they have lived in the UK for five years."

But hang on a minute. Isn't that how it's supposed to be at the moment? Isn't the UK still a member of the EU until it leaves? 

Well in theory, yes that's the case. The only reason that things are not actually working as they should do, is that Theresa May has been abusing the immigration system in order to deter people who have the legal right to be in Britain from coming to the UK in the first place or from staying once they are here.

Theresa May even came up with a name for this practice - she called it "the hostile environment strategy" and she has been pursuing it since at least 2013.

The problem with the strategy is that it represents an infringement of the EU's rules on freedom of movement.

 The UK is in breach because it does not accept that access to the NHS constitutes adequate healthcare and insists that some EU citizens have an additional private health insurance (CSI - comprehensive sickness insurance) in order to be legally resident.

This is simply not true, and the UK are already subject to infringement proceedings on this very issue.

These are not points of detail, they are points of principle.

Theresa May is on the wrong side of the points of principle.  She is also way off beam on the details:

1) Cut-off point

Theresa May goes so far as to leave open the prospect of the cut-off date being set back to 29 March 2017, which means thousands of EU citizens who will have arrived after that date - but are currently lawfully residing in the UK and exercising treaty rights - will have their right to stay retroactively denied.

This practice may run foul of the fundamental right to private and family life under Article 8 ECHR.

2) Family members

Theresa May has said that the UK does not "want families to be split up"  

However, family members who are not currently in the UK seem to have been completely ignored.

In contrast with UK-based citizens,  EU citizens currently have the right to bring family members to the UK from outside the EU under the free movement rules

Clearly Theresa May intends to scrap that right in the future.

3) Nothing new

Theresa May's proposals are a simple restatement of existing immigration rules. They revolve around the 5 year criterion for permanent residence, entirely failing to address the exigent circumstances created by Brexit.

4) Grace period

The proposals provide for a grace period, the length of which is "still to be determined" but expected to be up to two years - to allow people to "regularise their status".

The obvious question is what will happen to EU citizens who will not have fulfilled the 5 year-criterion by the end of the 2-year grace period.

5)  Prisoners of UK immigration law

Theresa May's proposals, aim to subject EU citizens to UK immigration law; will EU citizens therefore risk losing their 'permanent' or 'settled' residence rights if, e.g..., they are away of the country for a particular period of time?

Have EU citizens now become prisoners' of UK immigration law? 

6)  Red tape

There will be a new form to complete to secure  the "settled status" that Theresa May is promising "at the end of the rainbow".

This will replace the current 85 page form which the Home office currently insists on and which officials use to pick holes in EU citizens applications for  permanent residency status which should be theirs by right.

7) Burden of proof

This will clearly still lie with the applicant, whereas it should be for the Home office to disprove claims made by applicants. 

Take the case of a 75 year old Dutch woman who has lived in the UK for 30 years but has not kept records of her employment and retired 15 year ago. Where will she stand?

8) Those not in work

Will EU citizens who are not able to work as a result of taking family leave, or as a result of sickness or disability be excluded from being able to achieve "settled status"?

It very much looks like it - the "pot of gold" of settled status is going to be the reward of those who can not only prove their residency status. 

It is also going to be a "prize" that is reserved for those who can prove to the Home Office that they exist.  

That will mean producing employment records - woe betide those who for whatever reason have not been in work during the required period.

9) Jurisdiction

What will happen when things go wrong - as they surely will - and EU citizens feel let down, rejected, treated unfairly and seek redress from the courts?

Clearly any arrangements that are put in place by UK government on the one hand and the EU on the other to protect EU citizens in the UK and British citizens in the EU will ultimately need to also be guaranteed by an international treaty.

Any treaty needs an independent arbitrator and yet Theresa May insists that the rights of EU citizens in the UK should be adjudicated by the British courts.

So any future UK government could unpick any arrangements a previous government had put in place for EU citizens with impunity. 

It is also unclear whether, as now, EU citizens would lose their permanent residency status once acquired, were they to spend an extended period abroad and then return to the UK.

This would make anything Theresa May "offers" now rather worthless.

10) Human Rights

There is no recognition that the uncertainty and anxiety caused by the Government's lack of action on the issue of rights for EU citizens interferes with the right o 3.4 million people to privacy and to a family life.

As we have argued, this in itself may constitute a violation of EU citizens' human rights under Article 8 of the European Convention on Human Rights.

EU citizens continue to be treated as collateral in negotiations, treated as a powerless collective rather than a set of individuals, each with a personal story,  with a voice, with rights.

No comparison

By contrast the EU has set out a very clear set of principles by which it aims to safeguard the rights of UK citizens in the EU.

We now call on the EU to give unilateral guarantees go all UK citizens in the EU and so to call Theresa May's bluff. 

There is no real scope for a reciprocal agreement on citizens rights.

The UK's approach is very transactional.

That is not the case with the EU which takes very seriously the voices of those (like New Europeans) who say that the EU in more than market place, it is an area of human rights.

The UK under Theresa May is never going to understand that Europe is a space of human rights, and that rights are non-negotiable.

New Europeans has campaigned for the rights of EU citizens for the last four years -  this is a very disappointing outcome.

But we will not give up the fight.

 

Acknowledgements

I am very grateful to Dr. Dimitrios Giannoulopoulos, who provided extensive legal and academic advice on this article.

Dr. Giannoulopoulos is the College Associate Dean & Senior Lecturer in Law, Brunel University London, Director, Britain in Europe think tank and Academic Fellow of the Honourable Society of the Inner Temple

 

 

 

 

 

 

 

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