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

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

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".)

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[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.