More Evidence-free Hyperventilation on the Home Office and the Three-Million EU Citizens Living Here

(A response to Wolfgang Münchau @EuroBriefing’s A primer for Europeans in post-Brexit Britain and to Rob Ford, @robfordmancs, Professor of Political Science at Manchester)

@Schroedinger99 sorry Mike but that's evidence free hyperventilation.

— Rob Ford (@robfordmancs) March 6, 2017

This all began with Professor Ford describing Wolfgang Münchau’s piece as “A very useful corrective to the alarmist cobblers that has been filling the pages of Guardian CiF on post-Brexit EU citizens' rights”.

So let’s examine the issue in a bit more depth.....

Wolfgang begins by noting that “The main issue for EU nationals in the UK is not, in fact, whether the UK reaches a deal on the status of EU residents”. He is right. Despite Home Secretary Amber Rudd’s insistence that the plight of EU citizens here is the fault of “a few EU countries insisting there can be no negotiation before notification” the real source of the three-million’s problems are closer to home. 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. 

The continued residency[i] of the 84% rests not on our negotiations with the EU, but on the behaviour of the UK Home Office.

Wolfgang Münchau complains that his “most dreaded chore this year will be to fill out an 85-page UK government application form” that he hopes will give him “permanent residence in the UK after Brexit”. The good news for Wolfgang is that a simplified online version of the form was made available - several months ago in fact. The even better news for Wolfgang is that, for people using the online form (but not for people using the 85 page paper form) the requirement to list all trips abroad since originally entering the UK – including entry and exit dates – has been quietly dropped.

Unfortunately, there is a lot of bad news, and some really bad news…..

First of all it should be pointed out, pace Wolfgang’s complaints about the length of the form, it is the need to provide reams of information that most people simply won’t have kept, rather than the 85 pages that is the real issue here. Another problem is that the form, both in its long and short versions, is riddled with ambiguities and contradictions and other than being advised to hire expensive lawyers, you will get little help with the form from the Home Office. And yet another problem is that significant numbers of EU citizens are disbarred from using the online form and from using the local(ish) passport checking service. They have to surrender their passports for months on end.

Wolfgang continues:

The UK grants permanent residency to [employed and the self-employed] who [have] been resident for five years or more. They have the right to apply for formal permanent residency status, for which they need to fill out that 85-page form. They do not have to do this and are still deemed to be permanently resident if they do not fill in the form. There are, however, two reasons why they might choose to do so. The first is insurance against a retroactive change in rules. It has happened before. The second would be to become a UK citizen, for which formal permanent residency is a prerequisite.

This is all true (sort of) but ignores a crucial consideration. Post Brexit, there are going to be two categories of EU citizens in the UK: those who are allowed to continue living and working here and those who are only allowed to visit for short periods as tourists. There is going to have to be some way of distinguishing between these two groups so everyone in the first category is going to have to be issued with Permanent Residency Documents. In other words, three million people are, sooner or later, going to have to fill in the form; or at least a form. There are few signs that the Home Office is geared up to process applications on this scale; and they only have two years.

Among those who are currently applying to the UK Home Office to try and beat the rush and get their situation in the UK regularized prior to Brexit, about 34% are being turned down – some then being ordered, for good measure, to pack up and leave the UK. It should be noted here that this is 34% of people who think they have a good case and who have sufficient initiative to fill in all the forms and assemble the reams of required evidence. I think we can assume that, given current procedures, there will be a far higher rate of failed applications once everyone has to apply.

And now we come to a really crucial issue: the reason for most of the failed applications.

It seems that about 12% of applications are rejected because applicants have failed to fill in the forms correctly or failed to provide all the bits of paper the Home Office insists on. The other 22% of applications are refused. There are no statistics on why these applications are refused, but the main reason seems to be failure to provide proof of “Comprehensive Medical Insurance”. People cannot provide proof of this because they didn’t, and don’t, have it or need it. They use the NHS.

This all gets very complicated but, as Wolfgang notes, correctly but misleadingly, “this is EU law”. In fact, according to the EU, the Home Office is in breach of this EU 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. The Home Office will not even provide a definition of what constitutes Comprehensive Medical Insurance and EU citizens who ask insurance companies for such a thing report bafflement and/or ridiculous quotes for coverage.

But it gets even worse….

The latest change the Home Office has made in the accompanying guidance for filling in the 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 theoretically land you in prison.

Wolfgang states confidently that the deportation of people in Collette’s situation "has not happened, and it will not happen". He is probably right but he displays astonishing complacency.

As both foaming-at-the-gills Brexiters like Jacob Rees-Mogg and liberal remain voters like Professor Ford are fond of chanting in unison “The idea that the Home Office will round up and deport three million people is bonkers”. What they don’t seem to realize is that – as Professor Jonathan Portes keeps shouting to anyone who will listen[ii] immigration control is – especially for foreigners with visa-free travel to the UK – increasingly conducted not by passport control but by employers. Landlords, banks, and hospital doctors seem destined to take on more and more of this role too.

So, assuming there is no change of heart or policy at the Home Office (a qualification that I apparently have to keep emphasizing) hundreds of thousands of EU citizens resident in the UK - those who never got around to filling in the forms, those without the required proof of status, homemakers and students who “need” but can’t get or afford comprehensive medical insurance, those whose applications are refused by the Home Office etc – are increasingly going to find themselves with no continuing right to work here or rent a house or open a bank account or receive medical treatment or get back into the country if an official at LHR (correctly) refuses to believe they are coming here as a tourist and they cannot furnish a residency permit.

There will be no mass round ups, just a slow war of attrition over many years during which the lives of “low value / high volume” EU migrants (to use Iain Duncan Smith’s charming turn of phrase) are made difficult or impossible.

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.

Negotiating with the EU is not going to help any of those people. Even if the Home Office does have a change of heart and starts trying to think of new ways to help rather than new ways to hinder EU citizens, and vastly simplifies its procedures, is it then going to write to all the people it has rejected apologizing and rescinding the rejections it has issued under current rules? This seems fanciful.

This is our story: “EU citizens in the UK are already facing Home Office threats”. My wife and I will be fine. I refuse to be bullied by the Home Office and we are already considering going to retire in Germany (if they’ll have me). I no longer feel at home in the UK and my wife certainly doesn’t.

Tens (perhaps hundreds) of thousands of other EU citizens are going to suffer a great deal more than we are and I intend to keep hyperventilating on their behalf as long as I draw breath.

---

[i] Their continued rights to pensions, healthcare, study, free travel etc are another matter and will hinge more directly on what is agreed with the other 27 EU countries.

[ii] The Lords are listening. 

How to fight the Home Office and Win: Subject Access Requests

STOP PRESS 

2017-03-11
Home Office advise foreigners to get themselves arrested if they want to get hold of their lists of trips abroad. (sort of  😣 ). Please scroll to "So the easiest way"
- or read the whole glorious story, my horribly mixed metaphors, and my call to arms (directly below).

2017-04-14 ICO respond again  Please scroll to end.

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.

Obviously this is utterly bonkers, but if you are dealing with the Home Office you need to get used to bonkersness.

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. Keep it simple and send them a letter simple letter!

We wrote as follows:

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.

NB the fee is a £10 cheque of postal order payable to The Home Office Accounting Office but (as will be made clear below) it is probably best not to bother with this at this stage.

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 is no hard and fast rule about what you need to tell them but 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. Again, there are no hard and fast rules here but at least one photo id is pretty much essential.

Once the Home Office have your SAR, they will then set about trying to think of reasons to turn it down (which is why there is no real point in paying them until you hear from them again). In our case 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 – ever so slightly bonkers. 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 is, as I write, dealing with a backlog of complaints about the Home Office and is currently dealing with complaints submitted up to 2017 January 16 - three days before mine was submitted.

As ever, I shall report any outcome below.

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 happen to have a good friend (of over twenty years' standing) who is 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.

If you need to know what the Home Office knows about your travel dates so that you can fill in their forms without fear of entering any data that conflicts with what they think they know, you will (as things stand) just have to bite the bullet and fork out lots of money for a solicitor to validate your documents. I hope, however (whether or not you currently need these dates), you will follow my suggestions below:

I have fought minor battles with bureaucracies all my life. I never give in and I never give up. I have won every single time. The UK Government has declared war on three million people and their families. It is essential we all win and that they lose.

I’m going to mix my metaphors a bit now, but I hope you’ll forgive me …………

All bureaucracies have an Achilles heel: The spikes in the pits they place in your way can be picked out and used as weapons to throw back at them and ultimately defeat them. And the more spiked-pits they place in front of you, the more spikes you can acquire.

And the pen is even mightier than the sword (which is a kind of spike).

Doing the following will do more good that writing to the newspapers or to your MP or fulminating on FaceBook and Twitter.

Write to the Subject Access Request Unit at, Lunar House, 40 Wellesley Road, Croydon, CR9 2BY requesting the data they hold on your trips abroad. This will cost you a few minutes and the price of a stamp. Do this now!

When they refuse your Subject Access Request (they will) fill in the form at https://ico.org.uk/media/report-a-concern/forms/1466/access-personal-information-form.pdf and send it to casework@ico.org.uk with a covering letter complaining that the Home Office are in breach of section 7 of the Data Protection Act. This will cost you nothing.

If thousands of us do this, I guarantee that the Home Office will, sooner or later, quietly drop its insistence that we employ expensive solicitors before submitting an SAR. If we keep up the fight, with luck, they will also drop the insistence on providing travel dates for all EU citizens in all circumstances. And when we win these battles you will have made life significantly easier for millions of your fellow human beings.

Pick up your pens/keyboards now and enter the fray!

#####

And now I've 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 have launched an appeal with the Office of the Information Commissioner arguing that they have 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.

....and here's the reply:

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 misplaced.

My translation:

"We kind of agree the the Home Office are just being arseholes here but their obduracy is not quite extreme enough for us to consider taking legal action against them so we're going to continue letting them break the spirit of the law."

Ombudsman here we go.