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.)
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!”
1) Simon Cox (@SimonFRCox) has kindly drawn my attention to this:
Full text of the letter to UK business about Brexit transition from Davis, Clark and Hammond pic.twitter.com/VCNy4zaYTS— Steve Peers (@StevePeers) January 27, 2018
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".)
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.
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:
I'm not particularly interested in cash. My concern is people's continuing rights. If these are granted I'll go back to writing about other matters. This is the sort of thing I really enjoy writing about: https://t.co/JLJDgMWein— Dr Mike Ward (@Schroedinger99) October 15, 2017
That's still my position.
* 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.
No Gain Without Pain (translation of Frankfurter Allgemeine piece on May's recent dinner with Juncker)
another translation (by @NinaDSchick - a German native speaker) has been published. It seems to agree - by and large - with mine.
No Gain Without Pain
So how do you go about constructing your list of dates so that you can send them back to the Home Office?
UKVI (Subject Access Request)
40 Wellesley Road
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<.
I enclose copies of my passports and driving licence and personal details. Please advise whether any fees are required in connection with this SAR.
Date of birth
Place of birth
Date of Marriage to >spouse name<
Current UK address
Previous UK addresses
Port of original entry to UK
Date of original entry to UK
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.
Head of Subject Access Request Unit
40 Wellesley Road
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.
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
from: firstname.lastname@example.org 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.
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. 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 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.