The progress of the UK’s negotiations on EU withdrawal: the rights of UK and EU citizens Contents

Conclusions

UK citizens in the EU

1.In our May Report on the Progress of the negotiations, we said that both sets of negotiators had failed to make it clear whether ongoing free movement rights for UK citizens in the EU would form part of negotiations and the future relationship between the EU and the UK. There are associated rights that will fall alongside the loss of free movement. These include the ability of some professionals to operate in more than one Member State, their ability to offer cross border services and the right to open a business in another Member State. We do not think these matters should be left wholly to the negotiations on the future relationship as this would mean a period of continuing uncertainty. We call on the UK Government to raise the matter again in the negotiations before the Withdrawal Agreement is finalised, and ask for an agreement on ongoing free movement within the EU27 for UK citizens currently resident in the EU. At the very least, it should be explicitly included in the political declaration. (Paragraph 15)

2.We welcome the efforts made by the Home Secretary and the Immigration Minister to seek more information about registration of UK citizens from their counterparts among the EU. We note that the European Parliament Brexit Steering Group has joined the call for Member States to set out preparations for how they will approach the registration of UK citizens on their territory. We repeat our previous recommendation to the UK Government to seek urgent clarification from the EU-27 as to their preparations to regularise the status of UK citizens on their territory. Any requirements need to be made public by EU Member States and disseminated widely as soon as possible. UK citizens living in other EU countries cannot be left in the dark as to how they can secure their rights. (Paragraph 23)

3.The Immigration Minister told us that the EU has declined to consider a reciprocal agreement for the continuation of voting rights as part of the Withdrawal Agreement negotiations. This is highly regrettable. Unless the negotiations change this position, the UK will have to secure bilateral agreements with each Member State. We look forward to hearing how the UK intends to take this forward and call on Member States to respond positively. We trust that the UK Government and devolved administrations will continue to enable EU citizens living in the UK to stand and vote in local elections and in elections to the Scottish Parliament, Welsh and Northern Ireland Assemblies. (Paragraph 27)

4.The rules on dual citizenship differ between Member States, and it is not practicable in all circumstances for British citizens in the EU to apply for dual citizenship in their host state—for example Austria, Estonia, Lithuania, Netherlands and Slovakia do not allow dual nationality. In the absence of an agreement enabling them to continue to benefit from free movement, some may have to choose to renounce their British citizenship and apply to become a citizen of their host country to enable them to continue to live their lives as now. This would be unacceptable and we urge Member States, and the European Parliament, to look at this issue so that UK citizens can maintain their rights without having to renounce their citizenship in the event of there being no Withdrawal Agreement. (Paragraph 29)

EU citizens in the UK

5.In the past, the ability of a non-UK passport holder to demonstrate their immigration status has been to show a document such as a Biometric Residents Permit or a non-UK passport with an endorsement showing their status. This has been important to enable individuals to demonstrate their right to be in the UK to employers, landlords, and to access public services. The Government has acknowledged the difficulty in proving a right to work, rent or access public services, without documentation. Documents, such as endorsed passports or biometric cards, are understood as forms of identification and are likely to be the default document requested by a landlord or employer. (Paragraph 45)

6.The Home Office has decided not to issue a hard document or endorsement on passports as evidence of Settled Status, but instead to send the successful applicant a digital code, which is then passed to an employer, or landlord, who would need to input the digital code into a Home Office website, enabling them to access information that confirms the individual’s immigration status. We note that the preferred method is for the individual to have an electronic device—such as a smartphone or tablet to receive the digital code—and for the employer to also have access to an electronic device to be able to go online, and be willing to go through the process. The Government should clarify how employers and landlords are meant to take and keep copies of digital records of settled status as they are currently required to do for physical documents. (Paragraph 46)

7.We have heard evidence from the EU citizens in the UK that they would prefer a hard document to be able to show their legal status and to minimise the chance of them experiencing discrimination. The evidence of the Windrush generation—where many people who were perfectly entitled to be in the UK but found it difficult to persuade others of this without physical documentary evidence—has heightened this concern. (Paragraph 47)

8.The Minister told us that the Home Office has started to roll out online checking of digital status for right-to-work checks. We recognise that, in future, other groups of non-UK passport holders will be using similar digital processes as a matter of course to demonstrate their immigration status. However, we are concerned that this is a task of unprecedented scale for the Home Office and it is being done within a very tight time frame. The experience of the Windrush generation shows that, where errors occur, it can lead to devastating consequences for individuals and their families. We are also concerned about the potential for fraud and the incentive for individuals to be exploited if they cannot persuade an employer or landlord of their status. (Paragraph 48)

9.The Home Office has said the digital code system will be less resource intensive, reduce fraud and be simple to use. We are concerned that the Home Office is introducing a new system on a large scale, and which relies upon employers, or landlords, understanding and embracing a new way of working. This might work well for many, but for some the risk of a civil penalty for employing or renting to someone without the correct immigration status, and a lack of understanding of the new system, may deter them from employing or renting to EU citizens, or create difficulties in enabling their status in other circumstances to be confirmed. We call on the Government to issue a physical document to EU citizens. (Paragraph 49)

10.We welcome the Immigration Minister’s recognition that some EU citizens living in the UK will face linguistic challenges in dealing with standard application forms designed to accept only English. This is a real concern where the application form may ask for names in a different format to how it is displayed in their passport, or other identity document. (Paragraph 61)

11.We welcome the Government’s position that it will protect carers and children who might not be covered by the Withdrawal Agreement or have acquired rights through EU case law and would otherwise be at risk of losing their ability to demonstrate their right to reside in the UK. The Home Office has said it may have to legislate to provide this protection and will provide further information in due course. We look forward to these commitments being given legal effect. (Paragraph 64)

12.The fee for Settled Status applications has been a factor in the negotiations. The EU-UK December Joint Report said that residence documents will be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents. The Minister told us that the UK and the EU have agreed to a fee being charged for each application. The cost—£65 and £32.50 for children—is the same as the cost charged by the Home Office for permanent residence applications. We welcome the reduction in cost for children and ask the Home Office to consider a comparable reduction for retired people. We welcome the assurance that the Home Office will produce an impact assessment explaining the costs of the Settled Status scheme and look forward to its publication at the earliest opportunity. We call on the Home Office to ensure that this impact assessment examines the likely effect of the fee on the take-up of the settled status scheme. It should review its policy if the impact assessment indicates that take-up would be substantially negatively impacted by the charging of a fee. The European Parliament has maintained that the application should be free; and we would support this position, but only if it were to be reciprocated to the extent that no charges would be imposed on UK citizens in the EU to regularise their status. We are concerned that persons who came to the UK in good faith, in exercise of their right of freedom of movement and with the reasonable expectation that they could continue to do so without charge, should have to pay a fee to apply for a status that is being retrospectively applied to them. If employers choose to reimburse their staff for the cost of any application for Settled Status this should not be classified as a benefit in kind. (Paragraph 68)

13.The UK Government has said it wants EU citizens in the UK to stay. The provision of information relating to the new scheme will be of paramount importance in ensuring its success. There are two clear audiences that need to know why it is necessary and how it will work: EU citizens currently resident in the UK and those who may have reason to ask a EU citizen to demonstrate their immigration status. The 3 million European citizens are spread throughout the UK, including many remote and rural locations. They may not all be connected to the internet or have a good mobile telephone signal. Many do not currently understand that applying will be necessary to regularise their status in the UK. It would be regrettable if there was a low take-up for the scheme due to a lack of awareness. (Paragraph 76)

14.The Home Office will not be the only body delivering any information campaign. We welcome the engagement that the Home Office has started with Embassies, consulates, user groups, and local authorities. It will be very important to disseminate information through representatives of the various European communities established in the UK so that the message can be amplified to the people who need to apply. The Government should consider how it might provide additional resources to such community organisations that will be doing valuable work on the Government’s behalf. (Paragraph 77)

15.It is clear that the Home Office is moving towards greater reliance on digital methods to carry out its work. It has invited EU citizens to sign up to email alerts to keep abreast of the Settled Status scheme. Bearing in mind the scale and diversity of the settled EU population in the UK, it is important that the Home Office utilise a variety of media to make sure they get their message across. For example, given that many EU citizens travel back and forth, and will do so during the transition period, a cost-effective measure would be to publicise the scheme via transport operators and ticketing agencies. (Paragraph 78)

16.There needs to be clear guidance on what the threshold is for not being awarded Settled Status on the grounds of criminality. Such guidance for applicants and Home Office caseworkers will help ensure fair and consistent application of the law. The Government has said it wants all EU citizens in the UK to apply for the Settled Status. We do not want large numbers of people to be deterred because they fear a minor or old conviction would disqualify them before they have even applied. But it is right that the Government should know about the serious criminal convictions of someone applying for settled status in order to decide whether it should be refused. Importantly, clear guidance will encourage EU citizens in the UK to feel they can apply and be treated fairly. In turn, this should also reduce the potential number of appeals. (Paragraph 81)

17.There is understandable concern that appellants might not have access to all the data that the Home Office has used to form a decision on their application. This may lead to individual circumstances where EU citizens are denied Settled Status and the applicant is unable to challenge a refusal without access to the evidence which led to the decision. We therefore call upon the UK Government to waive the data protection exemption to EU citizens and give them full access to their Home Office files in cases where their application is rejected. (Paragraph 85)

18.A test version of the online site is expected to be available in Autumn 2018 and open to all by March 2019. We note the difficulty in anticipating the rate at which people might apply once the online Settled Status scheme is operational. Similarly, it is difficult to anticipate the number of EU citizens who might not have applied by the end of the transition period. For those who arrive before 31 December 2020—the end of the transition period—but do not submit an application, the Government has offered a six-month grace period. In addition, the Government has said it will take a ‘proportionate response’ to those who apply after the deadline through ‘no fault of their own’. (Paragraph 91)

19.However, the scale of the task means that if even a small proportion of those eligible to apply do not do so, or are refused, there is a risk of a large number of EU citizens in the UK by July 2021 not having certainty as to their legal status. The UK Government needs to set out what it would do with thousands of EU migrants unable to demonstrate their legal status. (Paragraph 92)

20.While we welcome the spirit of the Government’s approach to those who apply after the end of the transition period, it is not certain what will be required of an EU citizen entering the UK after transition. The Government’s White Paper published on 12 July says that free movement will end when the UK leaves the EU and describes an aspiration to a future labour mobility framework. We look forward to taking evidence on this fundamentally important aspect of the future UK-EU relationship as the negotiations progress. (Paragraph 93)

21.The Immigration Minister told us that she was confident that the Independent Chief Inspector of Borders and Immigration (ICIBI) will be able to carry out the role of safeguarding the rights and EU citizens in the UK, until the Independent Monitoring Authority (IMA) is ready. We are not as confident that the ICIBI is entirely suitable for the role, and fulfils the requirements set out in Article 152 of the draft Withdrawal Agreement. Part of the reason for the delay is that the IMA will require primary legislation to pass through Parliament before it can be operational. However, this should not stop the UK Government from providing detail in relation to the IMA’s powers, procedures and resources. This is vitally important to instil confidence in the process, particularly given concerns expressed about the ability of the Home Office to manage such a task effectively. We look forward to receiving an update in writing on the work being carried out. (Paragraph 100)

22.Irish citizens in the UK have a unique set of rights. As they have the option of applying for Settled Status and may find it easier to exercise some of their rights if they have Settled Status, we recommend the Government sets out detailed guidance to clarify the situation and avoid uncertainty. Given their special status we do not think any Irish citizen should be charged a fee to apply for settled status. (Paragraph 106)

Ring fencing citizens’ rights in the event of no deal

23.The Withdrawal Agreement is not finalised. While we welcome the positive statements from the Ministers that they would honour their commitments to the EU in the UK in the event of no deal, more could be done to provide reassurances as to how this would be put into legal effect. The Withdrawal Agreement contains protections for EU citizens in the UK and for UK citizens in the EU. However, in the event of No Deal, there would be uncertainty around establishing the right to reside and work and the right to return after a period of absence. There are also protections built into the Withdrawal Agreement which would be lost, such as the right to refer cases to the CJEU for eight years. (Paragraph 112)

24.We welcome the Home Secretary’s clear commitment that EU citizens living lawfully in the UK will be able to stay in the event of No Deal, and call on Member States to make similar public commitments to assure all UK citizens living in their territory that their rights will also be safeguarded in such circumstances. We note that the European Parliament has pursued this issue and we trust that they will continue to do so. (Paragraph 113)





Published: 23 July 2018