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)

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.

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