EU citizens aren’t “bargaining chips” in Brexit negotiations, warns Home Affairs Select Committee

On 11 July 2016, days after the Brexit vote, the Cabinet Office assured us that EU nationals in the UK would retain the same rights as they held prior to the Brexit vote and said:

When we do leave the EU, we fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected. The government recognises and values the important contribution made by EU and other non-UK citizens who work, study and live in the UK.

Since then the Home Affairs Select Committee has published its first quarterly report recommending certainty on where EU nationals stand in relation to the UK leaving the EU. The Committee concludes:

The outcome of the EU referendum has placed EU nationals living in the UK in a potentially very difficult and uncertain position. The key to resolving this is certainty. EU citizens living and working in the UK must be told where they stand in relation to the UK leaving the EU and they should not be used as bargaining chips in the negotiations. There also has to be an effective cut-off date to avoid a surge in applications. The most obvious dates include the date of the Referendum, 23 June 2016, the date Article 50 is triggered or the date when the UK actually leaves the EU. EU citizens settled in the UK before the chosen date should be afforded the right to permanent residence. The challenge of successfully resolving the practicalities of the UK exit in relation to EU citizens must not be underestimated.

The Cabinet Office appears to be drumming to same beat and in yesterday’s statement in the House of Commons on the work of the newly-formed Department for Exiting the European Union, Secretary of State David Davis MP told us that Theresa May is determined to protect the status of EU nationals already living in the UK provided that British citizens’ rights continue to be protected in return.

So it seems that the fate of the 2.9 million EU nationals living in the UK largely depends on the ability of Theresa May and the leaders of 27 countries to find a solution that is agreeable to all sides.  In a statement released today Theresa May boldly tells us that “it is not about the Norway model or the Swiss model or any other country’s model – it is about developing our own British model.” As I wrote here, Switzerland and Norway have not been successful in their negotiations with the EU on free movement rights and concessions. There goes the pledged certainty.

The reality is that the rights of EU nationals will soon be experiencing wholesale changes. Rt Hon Amber Rudd, formerly in the ‘remain’ camp, has been tasked with deciding the date the changes affecting EU nationals will come into force causing the current entitlements of EU nationals to be ‘frozen’ or subjected to new registration or visa requirements.

In its report the Committee suggests three possible cut-off dates:

• The date of the Referendum, 23 June 2016
• The date Article 50 is triggered
• The date of actual exit from the EU

The chosen date is not likely to include a transitional period and therefore EU nationals who have not acquired a right to permanent residence on that date (or have not already applied for permanent residence), may be required to jump additional administrative and legal hurdles.

Worryingly, the Committee doubts that the current systems in place will cope with the future numbers of applications from EU nationals. The Committee says: “The Home Office’s failure to put data on computers is delaying the processing of cases and does not inspire confidence in their ability to manage this caseload.” The Committee also doubts that the Department for Exiting the European Union alone will be capable of the task and recommends that an additional unit be formed in order to deal with the practicalities of the UK exit in relation to EU citizens. We look forward to the next report of the Committee, which apparently will be devoted to all Brexit matters.

Whilst the government is keeping us in the dark as to its plans for free movement, European Economic Area nationals already in the UK and those seriously planning to come to the UK ought to apply now for registration or permanent residence under existing legislation in order to avoid nasty surprises. The “practicalities” of the UK exit could result in the lives of thousands EU families being disrupted by unnecessary bureaucratic delays and rubber-stamping.

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Miriam Carrion Benitez is part of a team of specialist immigration barristers at the 36 Group advising individuals and businesses on immigration law. If you are concerned about the effects of Brexit on your business or immigration status, contact us.