2018-10-19

The Brexit negotiations - the view from Germany


From SPIEGEL ONLINE

My translation (NB I've taken liberties with some of the more idiomatic language to try and accurately preserve the flavour of the remarks rather than the literal wording. I hope my more pedantic readers will forgive me.)


The Brexit negotiations
The nation that became a ship of fools
No nation can surpass the arrogance of the British. The sad truth is that a country which was once a world power is now one that cannot even make its way to the door without stumbling over its own feet.




A column by Jan Fleischhauer




Theresa May



In his book "Wir Deutschen", Matthias Matussek describes an evening in the German Embassy in London. The ambassador had invited everyone to an event held in honour of the novelist Antonia S. Byatt. When Matussek toasted the writer, she surprised him by asking what he thought of the European constitution. The journalist replied that he thought it was probably appropriate for a European community of states to agree together on a few basic principles.

Her heavily ringed hand remained hovering over her plate for a while, then Lady Byatt announced: "You know, we British do not need constitutions, we are the oldest democracy on earth." She paused. "For young nations like you Germans, however, constitutions may have their place." Matussek writes that it is difficult to describe just how nasal and pejorative the tone of her remarks was. "She was basically saying: You are barbarians. You have only just laid down your clubs and spears. You still need to be held in check."

That is the British we know and love: Devoid of self-doubt and always ready to put someone in his place - as they would express it. The problem is that if you wish to behave as though you are the centre of the world it helps to be the centre of the world – or at least be something close to it – rather than on the European periphery.

The United Kingdom is providing a spectacular example of how to make a fool of yourself in front of everyone. What was once the most powerful empire in the world is now a country that cannot make its way to the door without tripping over its own feet.

It is now 28 months since the British decided to say goodbye to the European Union. Sadly, they have yet get up from the sofa.

When Theresa May presents a proposal in Brussels, one can be sure that one day later this proposal will no longer be worth the paper it is written on. Either she presents ideas that have long since been rejected in Brussels, or she presents ideas that are quickly rejected by her own party and by Boris Johnson in his Daily Telegraph column.

Until recently, I felt pity when I saw the head of the British government bouncing across the screen at a summit, with her twisted smile and even more twisted offers. Nowadays, I find myself thinking, "May God be with you, but for God’s sake go!”

No deal is better than a bad deal? If they are convinced of that in the UK then so be it. hard Brexit will cost us dear, no question. But it will be far far more expensive for the British.

My colleagues have written on the golden future promised to the citizens of London. First, the lorries will back up as far as Wales because the borders have ground to a halt. Then, at the filling stations, the fuel will dry up and drugs will become scarce in the hospitals. As Polish plumbers are driven out of the country, people’s homes are threatened with water damage and, sadly, no one will come over to fix the pipes when the lavatories start to overflow.

So they will sit there in their dripping houses, without fuel oil and aspirins, but with very bad-tempered Russian neighbours, who have put far too much money into the English property market and are now furious to see their investments going down the drain. We all know how uncomfortably bad-tempered Russians can become, dear Englishmen. Not a great time to be running out of medication!



Brexit: At last, the vital answers to all your questions.

Almost everyone who has a say in Brexit belongs to the British establishment – which is to say, they went to ridiculously expensive schools and studied at Oxbridge. These people have now succeeded in enriching our understanding of such places. What, for God's sake, do they learn there? Certainly not any skills that prepare them for the real world. Or would you trust a lawyer who regularly goes into negotiations so badly prepared that the meetings have to be cancelled after a few minutes?

You simply have to immerse yourself in the flow of words from Mrs. May's mouth, at any point, and you realize that you can even be Prime Minister without having any connection to reality.

Journalist: If we leave the EU without a deal, does not that mean that we will have a hard border in Ireland?

May: We said very clearly that we do not want to see a hard border between Ireland and Northern Ireland.

Journalist: But if we leave without a deal, you cannot guarantee that there will be no hard border, right?

May: We're working on a good deal.

Journalist: But if we leave without a deal, there will be a border in Ireland, right?

May: If we leave without a deal, we as the British Government will do our utmost to ensure that there is no hard border between Ireland and Northern Ireland.

Journalist: But you will fail because, according to WTO rules, there will have be a border. Should not you admit this and explain it to the British people?

May: As the British Government, we are determined to do everything we can to ensure that there is no hard border between Northern Ireland and Ireland.

And so on. The downside of possessing intelligence is that it is painful to witness stupidity. Stupid people are protected from this kind of pain thus, when it comes to politics, stupid people have a distinct advantage over intelligent people.

We do not want to be unfair. We are indebted to the British for afternoon tea, Monty Python and the Beatles. These items represent more than many nations have achieved in their history. Also, the British have the Queen, reason enough for a monarchist like me to admire the kingdom. All nations, one might add, face decay at some point in their histories - some slower, some faster.

The fact that the British are now on a downwards fast-track rather than on a slower one may be related to the insularity that the Brexiters so vehemently defend. I have never understood the notion that a people are best left alone. Anyone who wishes to know what centuries of inbreeding can do need only look across the English Channel: Brexit provides a valuable lesson for all those who dream of ending European freedom of movement.

#####
Footnote:
Simon Cox (@SimonFRCox) has kindly drawn my attention to this:

A.S. BYATT: I HAVE NOT YET WRITTEN ENOUGH
in which Byatt speaks against Brexit. As Simon put it: "Brexit has its roots in a mindset much wider and deeper than Leavers".


2018-02-01

Theresa May, Transition, and Citizens' Rights




Theresa May does not want EU citizens who arrive in the UK after Brexit day (2019-03-31) to be allowed to remain in the UK.

Why, given that we shall have left the EU by then, is this such a big problem and a potential deal breaker for the EU?

I offer a simplified explanation of the core issues below:

The UK has asked for, and the EU has offered, a two year "transition" on condition we accept the full acquis (the accumulated legislation, legal acts, and court decisions which constitute the body of European Union law) and European Court of Justice (ECJ) jurisdiction for that period. The EU does not want to set about changing its laws and procedures twice: once when we go into transition and again when we exit transition.

Let us assume both sides agree to transition on these terms. Until May’s intervention they almost seemed to have done so.

So on the morning of 2019-04-01 we enter transition. We have left the EU but are still governed by EU law. Four EU citizens - Mary, Tom, Dick, and Harry - apply to the Home Office for residency papers. Mary has been here thirty years, Tom four years, Dick one year, and Harry as just arrived on the morning flight from Utrecht.

The UK government has announced that it wishes all EU citizens to be registered as quickly as possible so Mary, Tom, Dick, and Harry do not want to waste any time.

Mary, who has been here for much longer than five years, applies for and gets a “Permanent Residency” certificate[i]. Tom, Dick, and Harry, who have all been here for less than five years, apply for and get "Residency" certificates. These two species of certificate represent the only statuses EU citizens resident in the UK can have under EU law.

Tom, Dick, and Harry now look up what "Residency" means on the EU Commission website. The website basically says that, if they fulfil certain conditions, they can remain where they are apply for Permanent Residency once they have been resident in their chosen country for five years. Remember here, the UK is still operating under EU law and EU law has not been changed.

Come 2020-04-01, Tom applies for and gets his Permanent Residency certificate. Again, we are still under EU law and Tom has been here for five years.

Roll forward to 2023-04-01 and Dick applies for and gets a Permanent Residency (or the UK equivalent now called "Settlement") certificate too. We are no longer under EU law but we conceded to the EU, even before we discussed transition, that people in Dick's position would get eventually get Settlement (if they stayed her for long enough and met the required conditions) as part of the withdrawal agreement.

But what about Harry?

May certainly wants him to be denied Settlement if he applies and may even be demanding that Harry be hunted down and thrown out of the country when he is located.

Finding Harry, and people like him, will not be straightforward. Harry is equipped with exactly the same certificate as Tom and Dick had. Police, employers, medical staff, and landlords will not easily be able to identify Harry as someone who should not be here and he may be unaware himself that he is no longer welcome.

But there is a more fundamental problem:

Harry was issued with a certificate that – together with the relevant EU law under which that certificate was issued - promised him the opportunity to be able to stay.

I realize it is now 2023 and we are no longer bound by EU law. It could be argued that we should simply renege on the “promise” to Harry made when we granted him residency.

But what we cannot, in good faith, do is issue Harry with his certificate in 2019 while simultaneously announcing that we are not going to honour the provisions contained within – or legally implied by - that certificate.

In order to get "our" (ie May's) way here, we should have to issue Harry with a different certificate reflecting his different status and the EU would have to recognize that new category of EU citizen and change its laws accordingly and get twenty-seven countries to agree.

So the EU cannot directly force us to accept Harry in 2023, but it can - on pain of being denied transition - force us to promise, in 2019, to accept Harry come 2023.

And given that Davis, Clark and Hammond have already acknowledged that we shall be complying with the terms of the EU acquis for transition



May is going to have a hard job trying to get the E27 to change their laws and their minds on this.

May has blundered into a fight she is almost certain to lose.

Ironically, if she won, she would find herself in an even bigger mess. Given the time that will be available once we have finally reached agreement on all aspects of citizens’ rights, it is inconceivable that our Home Office would be able to implement and roll out a new system that would smoothly and reliably discriminate between all the Toms, Dicks, and Harrys in time for 2019 April 01.

The Home Office must be praying she loses this one.


Postscript

I've had somebody complaining about my terminology (though I was trying to make a general point and we don't know yet exactly what the terminology will be post Brexit). Anyway, to put the record completely straight: the piece of paper you currently get for PR is called a "permanent residence document" and the piece of paper that EU/EEA citizens *can* get (but have rarely bothered with because it wasn't required) to confirm residency is a "registration certificate". (The equivalent confirmation for non EEA citizens is called a "residence card".)





[i] My wife already has such a certificate – obtained after a great deal of blood sweat and tears. As she finally obtained it the Home Office announced that everyone with such certificates would have to apply to have them replaced with Settlement certificates after Brexit.

2018-01-18

Where do EU citizens in the UK now stand? (update)

Since I wrote "Where do EU citizens in the UK now stand? (clue: not where Daniel J Hannan says they do)" (and had the above conversation) the UK has reached agreement with the E27 countries on exiting the EU - specifically on our remaining financial commitments, Ireland, and citizens' rights - and many (on both the Remain and Leave sides of the debate) fondly assume that the situation of EU citizens living in the UK is no longer an issue.

I thought I should revisit the areas of concern* I raised in my original piece and update them in the light of the recent agreements.

Will EU citizens living here be allowed to stay?

In the end, Theresa May and the UK government retreated a long way from their initial refusal to guarantee E27 citizens' rights and their insistence that those citizens should be used as bargaining chips (see also Assuring EU citizens of right to stay 'would lose UK negotiating capital') and conceded, on 2017 October 19, that "EU citizens living lawfully in the UK today will be able to stay."

In reaching agreement with the E27, the UK government acceded to most of the E27's initial demands on citizens' rights (which the E27 had set out on 2017 May 29). The E27 also gave some ground however - to the detriment of their citizens living here.

This agreement has yet to be ratified and is contingent on us reaching agreement in many other areas. We could just drop out at any time leaving EU citizens with no rights. But assuming the agreement holds, how sanguine should those directly affected be?

The devil, as ever, is in the detail.

What the UK Government has actually promised is not that E27 citizens living here will be able to stay but that E27 citizens currently living here "lawfully" will be able to apply to obtain "Settled Status":

"The settled status application process for EU citizens will be completely different from the current one for documents confirming EU permanent residence status. We are designing a new system from scratch, with new processes, technology, rules and support for applicants." (ref)

The Home Office have also said that:

"EU citizens will also be given a statutory right of appeal, in line with their current rights through the Free Movement Directive, if their application is unsuccessful." (ref)

Thereby making it quite clear (in case there were any doubt) that not all applications will be successful.

The refusal/rejection rate for "Permanent Residency" (the current - and soon to be abolished** - equivalent of “settlement”) has been up to 34%. Even if the refusal/rejection rate for “settlement” is only a few percent, we are still talking about potentially hundreds of thousands of people. Many thousands, perhaps tens of thousands, will through infirmity, confusion, fecklessness, absence from the UK, uncertainty about their status (perhaps having been in the UK since birth or from an early age) simply fail to apply in time. As a number of (non-EU, often vulnerable) migrants to the UK have discovered, the Home Office is ruthless when it finds people who have lived here all their lives but have lost or failed to secure the rights bits of paper as the rules have tightened over the years.

And even for the majority who will apply correctly for settlement, many questions spring to mind:

  • What criteria will be used to grant or refuse “settlement”?
  • What exactly does the UK government mean by “lawfully” in this context?
  • Will applicants have to surrender their ID / travel documents when they apply?
  • If so, for how long?
  • If not, will they be able to present their documents for inspection somewhere local?
  • And will they be able to present their documents for inspection at convenient times – e.g. without having to take the day off work?
  • How long will it take the Home Office to process the 3.2 million applications?
  • Given this will presumably go on for at least two years after 2019 April, how will EU citizens in the UK be policed?
  • Specifically, how will employers, GPs, landlords etc. distinguish between EU citizens entitled to settlement but not yet in receipt of the relevant papers and EU citizens who have just arrived?

And there is still no definitive word on whether the nationals of Norway, Iceland, Lichtenstein and Switzerland will come under this new system.

In conclusion, I think we can assume that most of the 3.2 million EU/EEA citizens who have lived here for five years, or are able to clock up five years between when they arrived and when the Home Office decides to start implementing the new regime, will be allowed to stay. A significant minority will be forced to leave and will - if the Home Office's long record of behaviour is anything to go by - be subject to the freezing of bank accounts, revocation of driving licences, bans from employment, detention and, ultimately, deportation.

What rights will EU citizens who do stay lose - or now keep?(ref)

The right to go abroad for more than five*** years

Currently any EU citizen can live for as long or a short a time as he or she wishes in any member state. After Brexit, an EU citizen who goes abroad (to the EU or elsewhere) for five years or more - to study, work, or perhaps care for a relative - will lose his or her settlement status in the UK. Since residency is not formally registered in the UK it is not clear how this rule will be policed but it means that people will have to think long and hard before accepting a job abroad or retiring overseas. In addition to limiting the freedom of its intended targets, this rule will, of course, limit the freedoms available to UK family members of EU citizens living here.

The right to fall in love with a foreigner

The UK got its way on this point and the EU backed down. An EU citizen living in the UK who has the misfortune to fall in love with someone from another country after Brexit will henceforth be dealt with under the same rules as apply to British citizens. The income requirements and other rules make it extremely difficult - often impossible - for UK citizens to marry a foreigner and have that foreigner join them in the UK. Many families are torn apart as a result. These rules will now be visited on EU citizens living here - even if they fall in love with someone from another EU country.

The right to provide care for an elderly parent in failing health

The EU largely got its way on this point and the UK backed down. Take a family such as my own: My German wife has lived with me in the UK for 32 years. My parents and my father in law have already died. My mother in law still enjoys good health but is not getting any younger. One day her health will begin to fail and she may require the care of family members. I shall have lost the absolute right to accompany my wife to go and live in Germany by then; and my wife would lose the right to return here if she went to live in Germany for too long on her own. At least the UK has now conceded that we would be allowed to bring my mother in law here. If she remarried, however, then her new spouse would have no such rights. If the new spouse's health deteriorated at the same time we'd all be in a bit of a pickle.

The right to enforce any of the rights notionally granted by the UK

The UK and the EU reached a compromise here - though the EU retreated further than the UK. As things stand now, any EU citizen living in another EU country and denied their rights in that country can ultimately rely on a supranational body - the European Court of Justice - to adjudicate between different nations of the Union and require any of those nations to fall into line if they fail to adhere to the rules they have signed up to. The UK government has agreed to allow a role for the ECJ for eight years after Brexit. Therafter, EU citizens will be at the mercy of the UK authorities and any unilateral post-Brexit changes those authorities may make to what they have currently agreed with the EU. The record of the UK authorities does not inspire confidence.

The right to free movement (for citizens whose families include UK citizens)

An EU citizen with a UK spouse or with children who took up UK citizenship will - as long as he or she wishes to be accompanied by the rest of his/her family - lose the absolute right to move freely in the other EU member states (though such families will of course be able to apply for residency in an individual E27 country and, under EU laws, this would almost certainly be granted). This was an inevitable consequence of the UK abolishing EU citizenship for its own citizens and was not contested by either side during the recent negotiations (though see "UK citizens in the EU" below).

The right to travel using an ID card rather than a full passport

In addition to applying for settlement papers from the UK authorities, it seems that EU citizens will eventually all be forced to obtain full passports from their own countries. Huge numbers of EU citizens travel within the EU using only their ID cards and never bother obtaining a passport. National identity cards will, it seems, be accepted from EU citizens applying for settlement during the two years or so after Brexit, but there was no discussion of this question during the recent talks and no official announcement has been forthcoming as to when the UK intends to change the rules for travellers. Judging by the leaked IMMIGRATION AND CITIZENSHIP SYSTEM AFTER THE UK LEAVES THE EUROPEAN UNION document however, this measure seems inevitable.

The right to live in the UK without a UK ID card

While the UK retreated on its plans for fingerprinting E27 citizens living in the UK, all such citizens granted settlement will thenceforth have to present (when asked) what is, in effect, a UK ID card. There will be no legal obligation to carry this card but, without it, settled E27 citizens will have no way to distinguish themselves from E27 citizens who do not have settlement and its associated rights. Of course many E27 (though not all) citizens have to have ID cards in their countries of birth, but before you dismiss this as a complete triviality, it would be well to recall that David Davis resigned his seat over the erosion of civil liberties represented by (inter alia) the Identity Cards Act 2006.

De facto rights

The considerations here are unchanged by the recent negotiations. As the Home Office website still has it:

Their use of the word "broadly" rings a few alarm bells but let us assume that E27 citizens' de jure employment, property, healthcare, study, and welfare rights (in the UK) do remain essentially the same.

What will happen in practice?

Employers, landlords, health workers and other officials (not border officials) are the ones who are going to have to police the treatment of EU citizens. They will be called upon to discriminate reliably between:

  • people who've been here 5 years and got settlement,
  • people who've been here 5 years and not yet got settlement,
  • people who've not been here 5 years yet but arrived before Brexit,
  • people who've arrived post Brexit but have work permits,
  • and people who've arrived post Brexit but have no permits.

Employers will, if our friend Robert Goodwill MP has his way, also have to pay a large fee to the government when they employ an EU citizen rather than a UK citizen - as they have to do for non-EU workers at the moment - and will be subject to criminal penalties if they get any of this wrong.

Clearly all this will be a nightmare and all EU citizens will suffer a de facto diminution in rights as a result.

UK citizens living in the EU

This post is focused on the plight of E27 citizens in the UK, but the plight of UK citizens in the EU also deserves a mention: As Robert Goodwill MP and Minister of State for Immigration was making clear (apparently with Dan Hodges's approval) in his letter to my MP back in 2017 January, the plan at that stage was to use E27 citizens as bargaining chips against the rights of UK citizens in the EU. When push came to shove however, the UK Government simply abandoned their own citizens.

In 2017 July the UK was insisting that UK citizens living in E27 countries should continue to enjoy freedom of movement within those countries (while, of course, also insisting that E27 citizens resident in the E27 would lose freedom of movement in the UK):

In 2017 December, the UK Government - desperate to move on to trade talks with the EU - caved in to the E27 on this issue:

UK citizens living in the EU and their families will henceforth probably be trapped in the country where they are living at the time of Brexit and will lose many of their rights to work and trade across the E27 too.- a huge problem for many Brits who have got used to ignoring European land borders in their daily lives.

Conclusion

I suppose that, on balance, EU citizens in the UK should be reassured that the UK is not about to turn into Uganda under Idi Amin. Despite the views of a minority**** of Brexiters and the barely veiled threats of politicians like Robert Goodwill, there will now be no mass expulsions of EU citizens from the UK.

On the other hand, claims - such as this from Danial Hannan - that there will be no change for EU citizens post Brexit are risible.

At the very least, 3.2 million people and their families here in the UK will have to endure a great deal of anguish and hassle over the new few years trying to sort out their status with hostile officials and, in some cases, will be subjected to real hardship and will have their lives torn apart.

I am still waiting to hear what the up-side of all this will be for UK citizens living in the UK who who do not have foreigners in their families and who are quite sure that they (and their descendants) will never want to go abroad.





By the way, I replied to Dan Hodges thus:

That's still my position.





Notes

* By no means an exhaustive list.

** Even for those who already have this "permanent" status. "Permanent Residency" is defined in EU law and will, by default, have lost validity when we wake up on the morning of 2019 April 01.

*** Was originally two years.

**** Albeit a significant minority.

Edits: Since first publishing this piece I have made several minor corrections to the html and to typing mistakes. I have also qualified my claim in respect of the likely extension of the Immigration Skills Charge to employers of EU citizens and have added a supporting reference for my modified claim; and have added some remarks about the fact that the agreement is not ring-fenced and is, thus far, only provisional.

2017-10-23

No Gain Without Pain (translation of Frankfurter Allgemeine piece on May's recent dinner with Juncker)

Original article by Thomas Gutschker

NB This a rather rushed translation from a native English speaker (me) with a far from expert level command of German; and I have sometimes taken liberties with the translation to make the meaning clear. Any suggestions for corrections or improvements gratefully received. Since I did this, another translation (by @NinaDSchick - a German native speaker) has been published. It seems to agree - by and large - with mine.

 No Gain Without Pain


Theresa May begged for help with the Brexit negotiations this week in Berlin, Paris, and Brussels. The Europeans were resolute but did their best to be pleasant.

Six months ago, Theresa May was at the height of her powers. She had chosen a "hard Brexit, was lauding her "global Britain", had initiated withdrawal from the European Union, and even called for new elections. May wanted even more power. When Jean-Claude Juncker joined her at the table in Downing Street and poured lots of water into the wine, she closed her ears: “No bad news, please!”. “She lives in another galaxy”, the President of the Commission concluded.

At the start of this week, May and Juncker met again for dinner — this time in Brussels. Everything was rather different. The bravado had gone, May pleaded for help. She spoke of the risks she had taken when she recently abandoned her hard-Brexit line and asked for a transitional period of two years, during which everything would remain the same. She reminded her audience that she had also given ground on the delicate issue of money and revealed that her friends and her enemies were hard on her heels, waiting for her to fall. She had no room for manoeuvre and May said that the Europeans would have to create some for her.

Theresa May appeared anxious to the President of the Commission, dejected and disheartened. A woman who hardly trusts anybody but feels trapped in her situation. May’s facial expressions and her appearance spoke volumes. Juncker described her to his colleagues later in the following terms: “Everyone can see it. The Prime Minister is scarred by the struggles within her own party. She has deep rings under her eyes. She looks as though she has not slept. Her smiles are few and far between. She forces them for the photographers, but it her inner torment shines through. In the past, May could literally heave with laughter. her whole body would shake. Now she employs all her resources to avoid losing her temper."

May asked Juncker for the appointment at the last minute. Beforehand, she had telephoned Chancellor Merkel and French President Macron. This was no “charm-offensive". These were calls for help. May knew that the heads of state and government were not prepared to grant "sufficient progress" in the negotiations at the end of the week and would block the move towards the second phase of the negotiations — which is where the UK’s future will be determined. The Prime Minister wanted at least to pave the way for a shift: could the EU chief negotiator Michel Barnier at least be given a mandate for talks about the transitional phase after the UK’s departure?


EU wants to talk about money


For May this would have been a great success. It would have softened the strict negotiating plan and it could have assuaged some of the concerns of UK business-people. They become more nervous with every passing day as the UK heads towards a chaotic, uncontrolled exit. Several banks have already begun to put their emergency plans into action, rent offices in Frankfurt or Paris, and relocate parts of their businesses. Others are preparing for this. In business, no one can rely on hopes or wishes. As a general rule, once jobs and production sites have moved away from somewhere, they never return. Moving twice is not worth the effort and expense.

Europeans are very much aware of the pickle in which the British find themselves. This fact provides the EU with its biggest leverage in the negotiations. That is why Merkel, Macron and Juncker could not soften their stance. All three insisted on further progress, especially on the sensitive issue of money, before there could be direct talks about the future.They did not wish the United Kingdom and Gibraltar to hold a referendum on membership of the European Union and they cannot solve the Brits’ problems for them. The German Chancellery is not prepared to use its coffers to help Britain out and May received the same message from Paris and Brussels. The Europeans had voted.

Nevertheless, nobody wished to make it appear as though they had simply snubbed the  Prime Minister. Merkel, Macron and Juncker know exactly how delicate her situation is. They also recognize that May no longer harbours her former illusions about the effects of the Brexit. He initial threat that "no deal is better than a bad deal" no longer plays a role in the negotiations. Macron has pointed this out publicly and this has been confirmed by Berlin. In her Florence speech May took a very different line and acknowledged how bad it would be for the British economy if the country were in the single market one day, and catapulted out of it the next. Her Foreign Minister Boris Johnson has a very different line. He still assures the British people that they have a "great future", even without a deal. Better to negotiate with the realist May than with the fantasist Johnson, is thus the thinking on the continent. That was why the EU pulled its punches.

The photographs from the meeting are deceptive


Juncker said good-bye to May after supper. He can do this kind of thing like no nobody esle. The communiqué spoke of a "constructive and friendly atmosphere". Yes, the efforts should even be "accelerated". That's how May’s people were able sell the meeting to their media as “a success”, for half a day — until chief negotiator Barnier soberly pointed out that accelerated  two-party negotiations require both parties to speed up.

When the Angela Merkel arrived at the European Council on Thursday, she also made a few friendly noises. Progress in the negotiations is not yet "sufficient" but "encouraging enough for efforts to continue in order that the second phase might be achieved in December". Merkel and Macron then entered the meeting hall together - May just behind and partly between them. All three were in excited conversation. These were the pictures of the day. Nobody could see that they were not talking about Brexit, but about the nuclear deal with Iran.

As for the political results of the Brexit negotiations, May's last-minute diplomacy did not change anything. These matters had been voted on among the EU ambassadors a week before the Summit: The EU27 Governments and the Barnier team are to undertake "internal preparatory discussions" on future relations with London and a transitional phase. This was a positive response to May’s Florence speech. It is explained in negotiating circles that, without such preparation, it would not be possible to enter into the second phase anyway. Guidelines have to be drawn up again. The negotiators firmly believe that their papers are public knowledge anyway and have even said that their opposite numbers in London are already aware of the exact position of the EU27 governments before they sit down to negotiate.

Notable progress has been made in the divorce negotiations so far only on the rights of the four million citizens who will be directly affected by the withdrawal - because they live on the "other" side. London privately admits has already conceded eighty percent of the demands made by the EU27. The biggest issue still has to be cleared in the coming weeks: The British negotiators are now openly accepting that the European Court of Justice will have a role in deciding post-Brexit disputes.

Finances were taboo


On the other hand, the subject of Northern Ireland is very complicated. It is true that both sides agree that there should be no "hard land border" on the island of Ireland, but they have very different solutions. Which one is chooses depends on future relations between the UK and the EU. That is why the Northern Ireland issue is in the process of being moved to the second phase of the negotiations.

The real hurdle is money. The remaining 27 States require the United Kingdom to honour all the financial commitments it made as a member. According to calculations by the EU Commission, this is well over sixty billion net. The Council, as an institution of the Member States, calculates it to be ninety billion euro. The difference is related to other items and cost estimates. Somewhere between the two numbers lies the place where London must end up.

At first the British government did not even want to discuss this. Finances were taboo. Then May made two commitments in Florence:

Firstly, she said that her country would continue to contribute to the EU budget until the end of 2020, even after leaving the country in March 2019. This equates to a good twenty billion euros net. Curiously, she thereby conceded one of the weakest arguments used by the Europeans in calculating the UK’s divorce bill. The amount in question was only arrived at in the context of medium-term financial planning and was not a formal budgetary decision. May, however, was being tactical. This is a sum she finds easiest to sell politically. If her country is to remain in the single market for another two years after Brexit it would have to pay this sum anyway.

Secondly, May made a simple statement: " The UK will honour commitments we have made during the period of our membership." From the European point of view of, that was good. But what does it mean exactly? What obligations? From an EU perspective, it is a question of: unpaid bills (31 billion euros), future pension burdens (9 billion), special funds (4 billion), and the assumption of liability risks. Nobody wants London to specify concrete numbers. The bill would only be presented at the time of exiting the EU and may be revised many times before then. However, May had to agree, in principle, to the individual items.

The clock is ticking


She is still frightened of making any such commitment. Of course the Brexit hardliners and the media will scream at the Tories - they wanted to get out of the European Union because of the British net financial contributions. Johnson, perhaps also Brexit's minister David Davis, could then land a lethal blow. Nevertheless, Europe's politicians do not want to give in here, and Berlin and Paris cannot give in because they are the biggest net contributors. This would be a super bail-out for Britain.

As chief negotiator Barnier reminds us at every opportunity, the clock is ticking. The next EU summit will take place in mid-December. In Brussels, a highly experienced politician has formulated May’s challenge for the next few weeks: She must explain to her side why the costs of a chaotic Brexit would be much higher than any bill presented by Brussels. And how will that work? From now on, any bad news will be good for Brexit, says the politician. For the gloomier the prospects of crashing out of talks without a deal are, the more likely it is that the UK will open its wallet and make a deal.

So maybe it was not such a bad week for the Prime Minister after all. Her Treasury reported a 3% inflation rate. Prices are rising. A research institute estimated that ordinary families will have 300 euros a year less if trade with the continent has to go through customs controls. And the OECD, the club of the industrialized countries, recommended that the Brexit should preferably be abandoned altogether but, at least, the UK should maintain as "close" a relationship as possible with the EU.








2017-10-09

The UK Home Office and our Subject Access Request





If you are an EU citizen resident in the UK you will probably have discovered by now that the UK Government is devoting a huge amount of time and effort towards making your life as difficult as possible.

If, fearing that the Home Office might arrest and deport you one day, you have decided to apply for formal recognition of your right to be in the UK (a right people notionally acquire after five years of living here) you will have discovered that you have to start the ball rolling by filling in an eighty-five page form.

The form asks, inter alia, for dates of departure, dates of return, and number of days away for every absence from the UK since entering the UK. In my wife’s case, this period spans thirty-one years. When I inquired about this requirement, I was assured that we “only” needed to fill this section in for the last five years.

Some time ago, the Home Office put up an online version of this form but many categories of EEA citizens are prohibited from using the online form and will have to use the paper form.

More recently, the Home Office quietly dropped the requirement to list exits and entries from the UK altogether – but only for those who are allowed to use the online form. In any case, EU applicants for naturalization (a different kettle of fish) in the UK also need to list entries to and exits from the UK for the last five years.

There is an added complication here which I should mention. The five years you choose to qualify for permanent residency do not actually have to be the most recent five years. So even if you are “only” filling in dates for five years of trips abroad you may need dates from longer ago than five years.

So how do you go about constructing your list of dates so that you can send them back to the Home Office?

Well funnily enough, the Home Office has a record of all your trips abroad (assuming you use airlines or ferries to travel rather than a rubber dingy across the Channel or whatever) and you can request a copy of this record and use the information therein to fill in your Home Office forms accurately. The Home Office only has records going back five years however so I presume (though I must emphasize I’m not an immigration lawyer) you can just fill in whatever you can remember for earlier years and the Home Office will have no way of checking the accuracy of what you fill in.

This is how we obtained our Home Office records using what’s called a “Subject Access Request” or “SAR”…….

The first thing to note is that, though the Home Office has a special form for SARs. You are under no obligation to use this form – which asks for all sorts of irrelevant information. We just sent them a simple letter:

UKVI (Subject Access Request)
Lunar House
40 Wellesley Road
Croydon
CR9 2BY 
Dear Sir/Madam 
This is a Subject Access Request under section 7 of the Data Protection Act 
I am a  >nationality< citizen who has lived and worked in the UK since >date<. I am currently applying for a permanent residence card which requires me to list all my absences from the UK over the past years. 
Please could you supply all records you possess of my exits and entries from the UK since >date<. 
Yours faithfully 
>name< 
I enclose copies of my passports and driving licence and personal details. Please advise whether any fees are required in connection with this SAR.
The “personal details” we included were:

Name
Previous name
Date of birth
Place of birth
Date of Marriage to >spouse name<
Current UK address
Previous UK addresses
Phone
Email
Port of original entry to UK
Date of original entry to UK

This list reflected our circumstances and included things I could see on the Home Office SAR form that seemed potentially relevant. There seems to be no hard and fast rules about what you need to tell them but obviously they need to be able to identify you.

We also included photocopies of my wife’s birth certificate, driving licence, and all the passports she has used since coming to live in the UK.

Once the Home Office had our SAR, they they asked (expectedly) for a £10 cheque and (unexpectedly) for “certification” of the photo id copies we had supplied:



Now I don’t know about you, but I find the (implied) suggestion here – that a fraudster might have got hold of all my wife’s personal details and copies of all her passports and driving licence and birth certificate and might be using them (rather than to empty her bank account) to fool the Home Office into sending a list of dates to an address which the Home Office knows is ours - rather implausible. Indeed, I’m going to stick my neck out here and suggest that the Home Office are being deliberately vexatious.

I decided I should report the Home Office to the Office of The information Commissioner for non-compliance with section 7 of the Data Protection Act. I filled in the relevant form; attached copies of all the material we had sent to the Home Office, and sent the following covering email:

Dear Sir/Madam 
This concerns a simple SAR for information that the Home Office hold on my wife’s movements in and out of the country over the past 31 years. The Home Office have this information because it is automatically sent to them by the airlines and ferry companies. My wife needs this information because the Home Office require her to provide it when she fills in a form for a residency permit. 
This information is not especially sensitive and would only ever be of use to someone applying for residency – at which point they have to appear in person and produce a passport. 
My wife provided copies of her driving licence, birth certificate and 5 passports and a great deal of personal details. It is preposterous of the Home Office to demand that she obtain the signature of a *solicitor* for these copies before they will process her request. This is more onerous than the requirements for obtaining a driving licence or passport in the first place. The Home Office appears to be behaving in an entirely vexatious and obstructive fashion here. If such practice were adopted generally, SAR would become a right in name only. 
The home Office have also requested a fee – which is fine. But I object to their insistence on resending the whole request rather than simply the cheque for the fee.
I look forward to hearing from you and I hope you can persuade the Home Office to start behaving in more reasonable fashion. 
etc

It seems that the Office of the Information Commissioner were, as I wrote, dealing with a backlog of complaints about the Home Office and was, at that stage, dealing with complaints submitted up to 2017 January 16 - three days before mine was submitted.

Meanwhile we thought we had better find a solicitor and try resubmitting our SAR. At least the Home Office had now supplied a list of requirements that it would be difficult for them to go back on; and fortunately for us, we happened to have a good friend (of over twenty years' standing) who was a solicitor. It “cost” me only a bottle of wine (though a rather good one L) to cover our copies in signatures and rubber stamps that looked sufficiently impressive to intimidate the Home Office into submission.

I dread to think how much a solicitor charging commercial rates would charge for such a service.

We resubmitted out SAR and a cheque for £10:

Andrew Smith
Head of Subject Access Request Unit
Lunar House
40 Wellesley Road
Croydon
CR9 2BY
 Dear Mr Smith 
This is a Subject Access Request under section 7 of the Data Protection Act 
Thank you for your letter of January 16. 
I enclose solicitor-certified copies of my driving licence and passport and a cheque for £10 payable to “The Home Office Accounting Officer”. I also enclose copies of my birth certificate, former passports, and personal details. 
I trust you will now proceed with my SAR. 
To recap: 
I am a German citizen who has lived and worked in the UK since 1985. I am currently applying for a permanent residence card which requires me to list all my absences from the UK over the past thirty-one years. 
Please could you supply all records you possess of my exits and entries from the UK since August 1985. 
Yours sincerely etc
This time around, the Home Office deigned to comply with our request (and the law of the land):




And, just recently, we received our list of dates. (I am not sure why they put “File Copy” across these pages. Perhaps they want to give the impression that they keep the original pages in a drawer somewhere and have made photocopies specially to send to us? I consider it more likely that these pages were generated by someone clicking something on a computer.):





This list goes back only five years, so does not include my wife’s initial entry to the UK, and has her entering the UK two times more than she left the UK. It also records her nationality variously as German, Danish, and British. Otherwise the details seem to be correct – though how complete they are is hard to say. We travel a lot and don’t really keep our own records (though we are well within the days-away-per-year allowed to foreign residents by the Home Office).

At the end was some more general information about the data held by the Home Office:



So there you have it. We now know exactly what data the Home Office hold on us and we also know to keep records of all our trips abroad in future, just in case the UK government introduce even more draconian rules to control the movements of EU citizens. They certainly seem to be planning this.


Later, I finally heard from the Office of the Information Commissioner:

from: casework@ico.org.uk11th March 2017 

Dear Dr Ward 
Thank you for raising concerns about the Home Office. 
 I understand that you have concerns about the ID requirements imposed by UKVI when it receives a subject access request (“SAR”). 
In this case, it appears that adequate certification has not been provided and has therefore UKVI will not process Karin XXXXXXXXXXX's SAR. 
 I can confirm that UKVI has now agreed to accept photo certification for SARs from; Solicitors, barristers, legal executives, registered charities and OISC registered representatives. The photo ID requirement will also be waived if the subject is in detention and UKVI can verify this from its records. 
 This change in policy has come about following the ICO’s engagement with UKVI on this matter. We understand that you believe that asking for a certified ID is excessive in the circumstances but this is UKVI's policy unless the above applies. 
We would advise that certified ID is still a requirement but as stated above it does not now necessarily have to be a solicitor that verifies the ID (see above). 
Therefore, you should now write to UKVI with a verified copy of ID in order to progress the SAR. There are no further actions for us to take on this occasion. 
Thank you for bringing this matter to our attention. 
Yours sincerely
etc

So the easiest way to obtain a list of your trips abroad from the Home Office seems to be to get yourself locked up in a detention centre.

I launched an appeal with the Office of the Information Commissioner arguing that they had let the Home Office off the hook far too easily. I repeated my point that it is utterly unreasonable of the Home Office to insist on copy certification requirements that are far more onerous than the requirements for obtaining the original documents whose copies are being certified.

.This is the reply I received:

Dear Dr Ward 
I am writing further to your case review and service complaint correspondence of 21 March 2017.  
This relates to the data protection concern submitted to the Information Commissioner’s Office (the “ICO”) about UK Visas and Immigration (“UKVI”), which is part of the Home Office. 
Please find enclosed a leaflet which explains how we handle requests for a case review.
The original concern raised with us refers to what you consider are the excessive proof of identity requirements insisted on by UKVI for processing subject access requests under the Data Protection Act 1998 (DPA). Joanna Hoof, the investigating officer, informed you that the ICO had previously engaged with UKVI on an earlier set of conditions imposed and it had been agreed that the rules should be made more accommodating. Under the terms of the agreed policy however your wife would still be required to provide further information and Ms Hoof recommended that your wife supply a verified copy of identification in order to progress the subject access request. 
I understand you remain of the view that UKVI’s requirements are disproportionate and unnecessarily onerous. [my emphasis] On this basis, you have asked us to reconsider our position on this particular case. 
Under the DPA a data controller is entitled to ask for enough information to judge whether the person making the request is the individual to who the personal data relates. As you acknowledge, the use of this mechanism may be an important safeguard for preventing personal data about one individual being sent to another. The key point though is that a data controller must be reasonable about what is asked for. The data controller should not, for example, request lots more information where there is already an ongoing relationship with the individual. 
A policy produced by a data controller which details the conditions for processing subject access requests should be tailored to reflect the nature of the information that is being handled. UKVI will regularly deal with information of a particularly sensitive nature and this is reflected in the strictness of its policy. We accept that as the custodian of confidential personal data it is appropriate for UKVI to have a policy in place which sets out clearly the criteria for dealing with subject access requests. For our purposes however, the demands of the policy should not be such so as to prevent an individual from being able to exercise their access rights in the DPA. 
We consider that the current version of UKVI’s policy, which evolved from changes made in the light of our advice, is generally successful in balancing the rights of the data subject with the need for ensuring there is adequate protection for personal data. I can fully appreciate why you would believe that UKVI’s arrangements are not suitable for your wife’s particular situation. [my emphasis] Yet, in our view it is not only essential UKVI has a robust policy in place but that furthermore, in the interests of fairness, this policy is applied as consistently as possible.[1] For this reason, I am satisfied that Ms Hoof gave you the correct advice. 
A case review is the final stage of the ICO’s case handling process. However, I appreciate that you may disagree with the assessment and our case review. If you remain dissatisfied the enclosed leaflet outlines the options available to you. 
Yours sincerely etc
[1] I have since discovered the the Home Office has a "fast track" system for dealing with SARs that does not involve certification of ID copies so all talk of "robustness" and "consistency" here is entirely fanciful.