The Government belatedly published a paper on the rights of EU nationals in the UK and British citizens in the EU in the event of no deal. Despite claiming to remove any “ambiguity” about their future if we were to crash out of the EU without a deal, the paper raised further questions. As a Shadow Brexit Minister, I joined with my colleague, Afzal Khan MP, Shadow Minister for Immigration, and wrote to the Brexit Minister, Robin Walker MP, and the Immigration Minister, Caroline Nokes, outlining our concerns and asking for clarification on a number of points in the paper. You can read it below.

Dear Caroline and Robin,

RE: Citizens’ rights in the event of a no deal Brexit

We are writing to you regarding the latest policy paper published by the Department for Exiting the European Union: ‘Citizens’ rights in the event of a no deal Brexit’. The paper claims to “remove any ambiguity about [the] future” of EU nationals and their family members living in the UK in confirming that their rights will be preserved. We are concerned that it has actually created more ambiguity and could undermine their rights. We would appreciate clarification on several points.

We believe that in the event of no agreement being reached, the Government and the EU should commit to uphold the provisions of the Withdrawal Agreement on citizens’ rights. This is the only way to prevent citizens becoming bargaining chips in further discussions. Failing that, we have a number of questions about this policy paper and would appreciate your response on the following points:

• Scope
• Distinguishing between EU Nationals who have arrived prior to and after 29^th March 2019
• Deadline for application
• The Right to Appeal
• Family Reunion Rights
• The implications for UK nationals in the EU

Scope

People who derive their rights through an EEA family member i.e. Chen carers; Ibrahim and Teixeira children; Ibrahim and Teixeira carers; and others who need a right of residence in the UK in order for a Chen or Ibrahim and Teixeira child to remain in the UK, are included within the scope of the Withdrawal Agreement. Zambrano carers and people who are resident in the UK via the ‘Surinder Singh’ route are not covered by the Withdrawal Agreement but the Government has stated they would be eligible to apply for Settled Status as a matter of domestic policy. Yet there is no explicit reference to people with derived rights in the paper. Could you please confirm that they would still be eligible to apply for Settled Status in line with the provisions outlined in this paper in the event of no deal?

Distinguishing between EU Nationals who have arrived prior to and after 29^th March 2019

We are chiefly concerned that the rights outlined in the paper are restricted to “EU citizens who are resident in the UK by 29 March 2019”. Before the Home Affairs Select Committee on 30^th October 2018, the Immigration Minister acknowledged that it would be impossible to distinguish between EU nationals who have arrived before 29^th March 2019 and those who have arrived after 29^th March 2019. This was confirmed in a letter to Afzal Khan on 20^th November and in response to Parliamentary Questions on 23^rd November, when the Immigration Minister said “in the unlikely event that we reach March 2019 without a deal, the Government has been clear that landlords will not be expected to differentiate between EU citizens who arrived in the UK before or after March 2019.”

It must be made clear to employers and landlords that, even in a no deal scenario, an EU passport or ID card will be sufficient proof of an individual’s right to live and work in the UK until 31 December 2020.

Deadline for Application

In the event of no deal, the deadline to apply for Settled Status would be 31 December 2020. This would give over three million people less than two years to apply for a new immigration status with no grace period. The Government has accepted it will be a challenge to register all citizens and family members in the time frame agreed under the Withdrawal Agreement. Why make this more difficult by further reducing the period to apply? Could you outline what assessment the Home Office has made of the Department’s capacity to register this number of people in this reduced space of time?

In the technical notice, the Government acknowledged that there “may be good reasons why some people may not have applied” in time. The Withdrawal Agreement requires the UK authorities to assess these reasons and allow applications beyond the deadline if there are “reasonable grounds” for missing it.  Will that same approach be applied if we leave the EU without a deal?

The Right to Appeal

The policy paper also indicates that EU citizens would have the right to challenge a refusal of UK immigration status under the EU Settlement Scheme by way of administrative review and judicial review, in line with the remedies generally available to non-EEA nationals refused leave to remain in the UK”. Short of launching a judicial review, it provides no right of appeal before a judge, which is extremely problematic.

There is no reference in the paper to an Independent Monitoring Authority to oversee the scheme. A ‘no deal’ situation would not change the need for independent oversight, so could you confirm that the Independent Monitoring Authority will be established in this situation and by what date you would expect it to be established?

Family Reunion Rights

This paper also introduces a cut-off point on family reunion of 29 March 2022 for existing non-EU family members, including children and parents. No such cut-off date exists under the Withdrawal Agreement. What is the rationale for this change, which is a significant divergence from the existing proposal?

UK Nationals resident in an EU27 country

Paul Blomfield has previously written to Robin Walker about onward freedom of movement for British nationals in the EU. The Minister confirmed this was not secured in the Withdrawal Agreement and would be pursued in negotiations on the future relationship. Therefore it is disappointing that the Government simply calls on the EU “to reassure UK nationals in the EU that they can stay and have their rights protected, in the country where they have chosen to make their lives”.

This paper fails to provide reassurance to British citizens on matters that are within the Government’s gift to provide unilaterally, if those citizens were to return to live in the UK. On the right to bring non-British family members to the UK and on access to benefits and services, it simply states that details will be set out “in due course”. With less than three months to go, it is imperative that the Government confirms that British citizens will be able to bring family members to the UK with them and have full access to benefits and services.

On reciprocity, the footnote to para. 20 states that the Government will only continue to pay an uprated UK state pension subject to reciprocity. Could this result in UK nationals in one Member State continuing to receive an uprated state pension and UK nationals in another Member State being denied this? Moreover, could you please confirm that it is the Government’s intention that past social security contributions will be aggregated so that nobody who has paid in the past will be penalised in their pension by not being able to meet minimum limits for national pensions (of contribution or period) because part of their contribution was made pre-Brexit?

The White Paper on Immigration has been repeatedly delayed, leaving EU nationals and their family members in the UK without any clear indication of the migration system they will be subject to in the event they are denied Settled Status.  EU nationals have already faced discrimination because of conflicting information provided by the Government and clarity on their future is urgently required. The Government also has a duty to UK nationals in the EU to seek agreement on their rights in the event of no deal and, moreover, to take steps to assure them of their rights in returning to the UK in this scenario.

Your policy paper creates further uncertainty, so we would appreciate an urgent response to the questions set out in this letter.

Yours sincerely

Paul Blomfield                                       Afzal Khan