Rights and Wrongs #2

Everyone should know by now that the government line on the rights of EU nationals in the UK is that they have not changed and that in any case government will do all it can to preserve them.

The House of Lords, being a bit wary of government promises, last week put an amendment into the Brexit Bill to say that government

must bring forward proposals to ensure that citizens of another European Union or European Economic Area country and their family members, who are legally resident in the United Kingdom on the day on which this Act is passed, continue to be treated in the same way with regards to their EU-derived rights and, in the case of residency, their potential to acquire such rights in the future

And the House of Commons Brexit Committee, in a generally thoughtful report published yesterday (5 March) notes

89. EU citizens who have been living in the UK for five years at the point we leave the EU will already have a right to remain. The Government should make clear that these individuals will be entitled to permanent residence.


97.The Government needs to set out what rights will continue for those EU nationals living in the UK as a spouse or child of a UK national.

However, all of these are scant comfort to a group of EU nationals with whom more or less everyone will have sympathy but who, it seems often unknowingly, have no right to be in the UK and thus not be legally resident. As a result, preservation or continuation of their EU-derived rights will not help them as they don’t have any.

They are of course people from elsewhere in the EU who are partners of UK citizens. If they did not spend their first five years in the UK working or meeting the conditions for ‘self-sufficiency’ instead (which includes holding comprehensive health insurance during the period) it seems they have had, and have, no right to be in the UK.

The reason is that Directive 2004/38 gives rights to EU nationals living somewhere other than their home country. So it gives rights to Brits living in France and French people living in the UK but it doesn’t give rights to Brits living in the UK or French people living in France.

I’ve got the right to live and work in the UK because I’m a UK citizen, my citizenship being determined by UK law and deriving from being born in the UK to British parents. The EU law gives me rights only in relation to my living and working elsewhere in the EU.

So if I moved to France and were working there I’d have the right to live there for as long as I liked, and acquire the right to permanent residence after five years (upon which I could stop working and still stay there). If I met a holidaying Slovenian lady on the beach at Pornichet and coupled up with her then she could stay on in France as my partner even if she didn’t do any work and wasn’t self-sufficient but relied entirely on me. Her right to live in France in those circumstances only derives from my right (as someone working in another member state) to have my family members with me. However after five years she will acquire for herself the right to permanent residence as she will have been legally living in France all the time as my partner (upon which she can leave me and still stay there!)

The situation is different if I never left the UK but met her on the beach in Portsmouth instead (apart from the obvious one that it is shingly rather than sandy). I’m in my home country so the Directive doesn’t apply to me and it doesn’t give me the right to have her here as my partner. She is in a different member state from her own so the Directive does apply to her but if she wants to stay here with me it only gives her the right to do so if she is working or self-sufficient (which requires her to have comprehensive medical insurance). The Directive does not give her any right to be in the UK simply as my partner. So if she were weighing me up as a prospect alongside a Polish guy who was working here, then she might be better off choosing him over me, as she then would have the right to be here as his partner without having to work or be self-sufficient.

Unfortunately, it seems that over the years plenty of people have chosen to hook up with a Brit rather than another EU national working here, so they haven’t actually had the right to live here. Thus the Danish wife of a British banker, staying at home bringing up their children while he earned millions and paid hundreds of thousands in tax has no EU-derived right to be here. On the other hand, the Romanian wife of a Romanian car-washer who doesn’t earn enough to pay any tax but gets by on the thousands of pounds of child-related benefits and housing benefit they’re entitled to does have that right. While sorry to have to adopt a screaming-headline stereotype, it’s necessary to illustrate the potential perversity of outcome. Indeed, after five years of relying on state hand-outs, so long as one of them has been working, both of the Romanian couple will have the right of permanent residence in the UK. And the government’s promise is to seek to preserve their rights while being silent on the absence of rights for partners of UK citizens. Instead it seems the latter get sent rude and threatening letters telling them to pack their bags even where wholly untroublesome and unburdensome residence in the UK has stretched over decades.

The question here is clear. Should EU nationals who have lived here for years as the inoffensive partners of UK citizens have the right to stay in the UK? It’s all very well to say that they don’t have that right now, and that they have been breaking the law as they have gone about their daily business, but the issue is whether they should have that right.

The House of Commons committee seems to think that they should, and do say

73.The Government should state that access to the NHS is considered sufficient to fulfil the requirements for CSI [Comprehensive Sickness Insurance], and that it will introduce legislation to that effect if necessary.

But I think that (with respect) they are looking at this the wrong way. It is not the best means to the desired end because it is directed at helping these individuals meet the criteria for having been self-sufficient. That isn’t the issue. It’s not that the Slovenian lady in my example is seen as self-sufficient if her partner is the Polish guy, but not seen as self-sufficient if her partner is me. Her rights to be in the UK derive from being his family member, in which case she does not have to be self-sufficient at all. To give parity would mean introducing legislation to give EU nationals who are family members of UK citizens the same rights to reside as EU nationals who are family members of EU nationals in the UK — retrospectively if necessary.

I would say that this is a nettle that needs to be grasped but that has connotations of it being a painful thing to do (at least in the short-term). In fact it’s hard to see how it would hurt at all….

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