The question for every EU citizen resident in the UK: ”Should I stay or should I go?”

(And will I have a choice?)

On February 8 MPs dealt a further post-Brexit-referendum blow to three million EU citizens resident in the UK and voted 332 to 290 against granting such citizens the right to remain[1]. It later transpired that one of the reasons Home Secretary Amber Rudd was able to secure such a convincing majority was that she had circulated a letter to Tory back-benchers two days before the vote reassuring them that there was “absolutely no question of treating EU citizens with anything other than the utmost respect”. Of course, since the Brexit vote, many EU citizens in the UK feel that they are being treated with a great deal of disrespect. Perhaps a more important issue for them, however, is how worried they should now feel about their status here.

In her letter, Amber Rudd reprises the claim that the plight of EU citizens here is somehow the fault of the EU:

“The Government remains committed to providing reassurance to EU nationals here and UK nationals in the EU as a priority once Article 50 has been triggered. The hold-up is less an issue of principle than one of timing with a few EU countries insisting there can be ‘no negotiation before notification’, and therefore that nothing can be settled until Article 50 is triggered.”

Coming at this from the opposite point of view, The European Council President Donald Tusk has opined that the “only source of anxiety and uncertainty [for the UK and EU citizens living in one another's territories] is [...] the decision on Brexit”. It is, he argues, our “rejection of the free movement of people and all the rights it entails” that will, by default, abolish the rights of EU citizens in the UK and the rights of UK citizens in the EU.

But regardless of how blame might be most appropriately apportioned, there would seem to be some fundamental misunderstandings concerning the symmetry of the UK’s relationship with the EU and its members. By and large, the EU has no say in how non-EU citizens are treated in member states[2]. After all, how we deal with, say, Australians here in the UK has always been a matter for our government and the Australian government. So the notion that there could be a simple reciprocal deal between the EU and the UK over this issue is quite misguided.

Moreover, the rights that EU citizens currently enjoy throughout the EU are wide-ranging and complex. They involve health-care, and pensions, and travel, and family members who may or may not be EU citizens themselves, and benefits, and education. There are no simple decisions to be made over what exactly we want existing UK citizens living in the EU and EU citizens living in the UK to retain; or even over how we define “living in”.

While the EU cannot negotiate on behalf of its members when it comes to the specific residency rights of their UK inhabitants, it is clear that there are many aspects of the UK’s post Brexit relationship with the EU that have implications for those residents. It is often claimed that Germany’s Angela Merkel bears particular responsibility for the EU’s refusal to discuss any of this prior to our triggering of Article 50 but the German chancellor’s spokeswoman, Ulrike Demmer has insisted that there is “complete unanimity [among the remaining 27] that there can be no pre-negotiations with Great Britain before notification”.

Pace Amber Rudd’s acknowledgement of MP’s concerns about how long this might take to resolve, the UK’s decision to tie this issue to Brexit negotiations with the EU, and with its 27 individual members, risks delaying any resolution for months or years. In this context, it is perhaps understandable that the EU were wary of open-ended “pre-negotiations” and insisted on definite start and end dates.

So how worried should EU citizens be about their future in the UK?

As the UK Home Office puts it: “EU nationals who have lived continuously and lawfully in the UK for at least 5 years automatically have a permanent right to reside” and it has been estimated that about 84% of EU citizens currently living in the UK already meet this criterion or will have met it by the time we leave. This seems to imply that the whole issue is a bit of a storm in a tea-cup. But,as is often the case when it comes to Brexit, things are a bit more complicated than they seem at first sight.

Post Brexit there will have to be some way of distinguishing between EU citizens in the UK who have continuing rights to live and work here and those who do not. Those citizens will need to be issued with papers – i.e.  “Permanent Residency Documents” - that evidence such rights; and they will need to be issued with those papers within two years or at least before whatever date is chosen for the ending for freedom of movement.

While the numbers of EU citizens in the UK applying for permanent residency documents from the Home Office has increased significantly, this only represents a small proportion of the millions who are (notionally) eligible. The Kafkaesque nature of the Home Office’s procedures and its treatment of applicants may be putting many off. Others seem to be seeking refuge in Micawberism. After all, as even the fiercely pro-Brexit Jacob Rees-Mogg has put it, “The idea that [the Home Office] can deport three million people is bonkers”. What Rees-Mogg seems not to realize is that deportation is not really the fear. If EU citizens lose their rights to work and receive health care and re-enter the country and hold a driving licence and maintain a bank account, unless they can furnish the correct papers, they will have to leave - at least those whose lives involve things like national insurance numbers and paying tax. I suppose that many of the hundreds of thousands working in the UK’s large black economy and the destitute may simply carry on living here until they get caught. Below the radar, the UK is already interning and deporting thousands of EU nationals it considers unfit to be here.

And even among those that do apply to the UK Home Office have their situation in the UK regularized, about 34% are being turned down – some then being ordered, for good measure, to pack up and leave the UK. One reason for refusal seems to be failure or inability to provide documentation sufficient to satisfy the Home Office’s draconian rules. More worryingly, many are being turned down for failure to provide evidence of “Comprehensive Medical Insurance”. This is a mind bogglingly complex area of law and, according to the EU, the Home Office is in breach of the law when it insists, retrospectively, that some categories of UK residents who have been legally using NHS services all their lives require evidence of health insurance before they can apply for residency. This is, however, exactly what the Home Office is insisting on.

Although the Home Office has made some concessions recently in reducing the complexity of the application process, the accompanying guidance for the new forms contains a chilling new entry:

“Scenario 3:
Colette, a Belgian citizen, came to the UK for a holiday in August 2003 but then remained without permission or entitlement under community law. Any residence in the UK after her entitlement under community law came to an end was residence in breach of the immigration laws.”

In other words, there are many EU citizens exercising their right to free movement here in blissful ignorance of the fact that our Home Office now considers their presence not just unwelcome but unlawful. Residence in breach of the immigration laws can land you in prison.

Since public hostility and bureaucratic malice towards UK citizens in other EU countries is rare and the process (at least judging from the impressions given to me by friends living abroad) for obtaining residency permits is cheap and straightforward, it could be argued that the EU has already made the concessions towards UK citizens that we intend to wring from them in our negotiations. Nonetheless we are now entering those negotiations armed with a threat to strip EU citizens living here of rights we already deny to more than a third of those who claim them.

If this threat is empty, why do we insist, in Parliament, that we need to make it as the opening gambit in our negotiations?

Amber Rudd’s letter seems to claim, in contradictory passages, both that the fate of EU citizens in the UK is contingent on the success of our negotiations with the EU and that it is in the gift of Parliament. Only one of these claims can possibly by true. Even if the latter is true, our MPs have shown few signs that they are losing sleep over this question.

Without wishing to sound alarmist, I think it would be extremely prudent for any EU citizens currently resident in the UK to apply as soon as possible for permanent residency and to begin making contingency plans for leaving – just in case. Even if leaving the UK is never actually mandated by the Home Office or remaining is never actually made truly impossible, leaving may become the only way to preserve rights, prosperity, and dignity.

[1] The House of Lords have now reversed this decision but I think we can assume that the House of Commons will reverse this reversal.

[2] Having spoken (via the medium of Twitter) to some people who understand matters far better than I do (including Steve Peers - @StevePeers Professor of EU, Human Rights and World Trade Law at the University of Essex) I have realized that this issue is more complex than I initially thought. Everything about Brexit is more complex than one initially thinks. It is true (as I say above) that individual EU state generally decide what happens to non EU citizens within their own borders, with the caveat (also made above) that many EU-wide laws (laws on travel arrangements for family members springs to mind here) have implications for happens to non EU citizens within individual states. But there are even more caveats it seems! Without going into lots of detail (which I don't even pretend to fully understand myself) we can simply note that the EU can impose whatever it likes on its members providing there is a unanimous vote in favour of doing so. It is - pace my remarks above - possible that qualified majority voting could (in some circumstances - perhaps including the circumstances of the Article 50 negotiations) impose certain new obligations on EU members with respect to their non EU residents. Nobody knows for certain as these issues have never come up before.
    In spite of these new caveats, I still insist that that there is no simple symmetry between the UK's laws on its EU residents and the EU's laws on its UK residents; and I still insist that it is morally reprehensible to threaten (whatever the "other side" may do) to expel people (and thus their close family members) who came here legally and in good faith.

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