We remain tolerant and welcoming — just in a hostile kind of way

“The UK is one of the most tolerant and welcoming places in the world and will remain that way,” claims the Government’s recent paper on ‘Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU’. The paper provides very limited detail, but the positive spin it gives belies very real limitations to that message of tolerance and welcome. While EEA citizens have up to now been largely protected from the vagaries and insults that many migrants experience with the UK Home Office, Brexit means that they too will be subject to an institution which has as its mission the task of restricting immigration to the UK, and routinely operates in a manner which is positively unwelcoming. Indeed, in 2013 Theresa May declared plans for a ‘hostile environment’ for irregular migrants, a hostility which now seems likely to be extended to EEA nationals and their family members as well. Below I pick out some aspects of the document which reflect this hostility.

For those with Permanent Residence: adding insult to injury

Under EU law, EEA nationals residing in the UK do not have to apply for a document certifying their right to live and work here. However, many have paid the £65 administrative fee, completed the cumbersome 85-page application form and collated the bundle of documents necessary to prove their permanent residency, in part due to the difficulties of proving a right to work and reside created by the hostile environment. The paper states that all EEA nationals with permanent residence (whether or not they already have a document to certify it) will have to apply for a new, as yet unspecified, settled status, post Brexit, something akin to the ‘indefinite leave to remain’ issued to non-EU migrants.

Those who already have a Permanent Residence document will no doubt be angered to find that they have to pay and apply again. The paper claims that the “fees will be set at a reasonable level”, but does not specify how ‘reasonable’ such a fee might be. Non-EEA residents applying for indefinite leave to remain after five years lawful residence in the UK are currently charged an exorbitant — and unwelcoming — fee of £2,297. Many EEA citizens who have made their lives in the UK consider any fee at all as an insult. In addition, the paper claims the process will be “streamlined”. Any process is likely to be more streamlined that the current complex system. Nevertheless, the Home Office is world-renowned for its complicated, bureaucratic, time- and money-costly procedures which frequently fail to deliver satisfaction to either applicants (even when granted) or the tax-payer. And none of this ensures fairness: The Independent Chief Inspector of Borders and Immigration has consistently criticized the Home Office for procedural flaws resulting in multiple wrong decisions across the board of immigration categories.

There is no detail given on what evidence will be expected from those who have not gone to the bother or getting a Permanent Residence document. As always, those who work at the lower end of the scale and/or in less conventional forms of employment (or self-employment) are hit harder by such requirements, since cash-in-hand, zero-hour contracts, and seasonal employment frequently mean little to no documentation, or that the worker does not earn sufficient for the Home Office to consider their employment ‘genuine and effective’. Is this a ploy to cull those EU migrants who are not seen as ticking the ‘brightest and best’ box so often cited by the Conservatives?

Comprehensive Sickness Insurance

The document states that the new process for settled status valid under UK law, will not need to operate in accordance with the provisions and restrictions of EU law. Therefore they ‘will no longer require evidence that economically inactive EU citizens have previously held “comprehensive sickness insurance” [CSI] in order to be considered continuously resident.’ In one sense, that’s a victory for campaigners who have railed against the requirement, retrospectively administered, that students and the self-sufficient need to have had CSI to be considered lawfully resident for the five-year qualifying period. But that the NHS is not considered sufficient to meet this requirement is a very restrictive — and British government — interpretation of EU Law, which the EU Commission has in the past challenged. So the spin put here that the UK government will drop this requirement because it no longer has to follow EU rules is just that: spin. The paper makes no mention of those who have applied for Permanent Residency and been refused due to not having CSI. Nor does it say it will drop it now — perhaps that would be to admit error, but this means that those who have accrued all or part of their qualifying five years as students or self-sufficient persons face a further indefinite period of uncertainty and suspended citizenship.

Primary Earnings Threshold (PET)

There is no mention in the paper of the Primary Earnings Threshold, a spurious additional requirement to gaining Permanent Residence under current requirements, which has no basis in EU Law. In fact, the whole paper fails to take proper account of the requirements to be working in order to be a qualified national. The case studies provided in boxes make little or no reference to whether the individual is in employment. This is a glaring and misleading omission. On the face of it, someone reading the document without in-depth knowledge of EU Law would presume that the EU citizen just has to have lived in the UK for five years. The subtle language, however, tells a different tale:

[…] the Home Office will provide a period of blanket residence permission, to start immediately upon the UK’s exit from the EU. This will be a generic “umbrella” of temporary leave applying to all existing lawful EU residents (and their families), to give them a grace period between the moment that free movement ends and the time they obtain their residence document — allowing them to remain lawfully in the UK, and continue to undertake their lawful business during that interim period. (my emphasis)

Remember, until the release of this document, those without CSI would not fit into the ‘lawful’ category, and the same is true of those who have worked for the five qualifying years but not earned sufficient money — as deemed by the Home Office, not EU Law. Applications for Permanent Residence or for Family Members to join EEA nationals are routinely turned down, because the EEA national is considered to earn or have earned below a ‘Primary Earnings Threshold’, currently £157 per week. EU Law actually only specifies that the EEA national should be employed in work that is ‘genuine and effective’. No amount is required, no hours are specified. Others fall foul of the five-year qualifying period due to having spent longer than six months on Jobseeker’s Allowance where they cannot evidence that they were actively seeking work. What about all these people? And their family members? Why is this document so coy about what constitutes lawful residence?

Family Members

The paper confirms that after Brexit, then EU citizens will have to comply with the same rules as British Citizens if they want to bring in family members. This includes those marrying ‘back home’ in France, Spain or wherever. This also means that British Citizens wanting to marry EU citizens after 2019 will need to meet the requirement of an annual salary of £18,600 per year. In the three years following the introduction of this income requirement in 2012 for British Citizens marrying non-EU nationals, it was estimated that 15,000 British children were forced to live as ‘Skype Families’, separated from an overseas parent who had been denied the ability to live with their family in the UK. How many thousands more British children will grow up missing a parent who cannot live with them once EU citizens also come under these regulations? The income requirement has been justified on the basis of the needs of integration and cost to the public purse, but the creation of thousands of involuntary single families is hardly likely to be cost-neutral, and in many cases families are deprived of their main earners (as only the UK applicants earnings count towards the £18,600).

If the government is serious about its claim that the UK is “one of most tolerant and welcoming places in the world”, now is the ideal time to demonstrate it. Instead, this paper extends a hostile kind of welcome. The lack of detail furthers uncertainty for all EEA nationals living in the UK, but as is often the case in immigration law, the wealthier worker in conventional employment will find more reassurance than the poorer or precariously employed worker.