‘Baroque’ UK system to protect EU citizens’ rights stores up trouble for the future

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Generally speaking it is conflict and disagreement that makes headlines. That’s why when it comes to Brexit issues like the Northern Ireland protocol and border bureaucracy have gained far more attention than the topic of today’s Brexit Briefing — EU and UK citizens’ rights.

As part of the Withdrawal Agreement, the two sides agreed to protect the rights of EU and UK citizens already living on either side of the Channel at the point of Brexit, so that their rights would be “grandfathered” before the UK’s new points-based immigration system came into force.

The process of getting EU nationals living in the UK before December 31 2020 to register themselves for EU settled status (EUSS) has been a largely unheralded success story of the Brexit process, with high levels of co-operation between the EU and UK.

So successful, in fact, that 5.6m applications have been made, which is remarkable when the original estimates for the number of EU nationals living in the UK was about 3.4m, although precisely because of “free” movement, that was always a guesstimate.

But nothing is ever entirely simple, particularly when it comes to dealing with the UK’s Home Office, the institution behind the infamous Windrush scandal and Theresa May’s so-called hostile environment policy that this year led to the heavy-handed deporting of EU nationals who were legally coming to look for work.

The final deadline for EUSS applications is June 30 and — precisely because it is impossible to know how many EU nationals are eligible — no one will know how many have missed the deadline, beyond which they may lose their rights to remain.

In practice, the Home Office has said in guidance to case workers that anyone with “compelling practical or compassionate reasons” to have missed the deadline should be able to apply retrospectively but there are no guarantees.

Then there is the uncertain status of those people who apply before the deadline but haven’t had a response — with application rates running at more than 10,000 per day, there are 400,000 unprocessed applications. Again, Kevin Foster, the immigration minister, has said those people won’t lose out.

But still, there will be some that fall through the cracks. Alec Herron of Settled, a charity set up to help EU citizens navigate the application system, said his organisation was still getting “hundreds” of calls a day from those who had not applied.

One repeat category is those EU citizens in possession of a permanent residence card (which they could obtain after five years’ residency in pre-Brexit days) but now think they don’t need to apply for settled status. They do.

There are other wrinkles, set out in this UK in a Changing Europe report, which include the fact that only those EU citizens that could demonstrate they’ve been resident for five years can immediately get settled status. 

Those with under five years’ residency (approximately 2m people, the authors reckon) get only “pre-settled status” and then have to apply separately for “settled” status when they achieve five years. 

This in effect creates millions of individual rolling deadlines; and that’s millions of opportunities for EU citizens to forget, or fail to receive, reminders. It also presents millions of potential opportunities for UK authorities to legally remove a citizen’s rights.

As Professor Catherine Barnard, one of the report’s authors, observes, while June 30 provided a clear, fixed deadline, the date at which those with pre-settled status can apply for settled status will be constantly moving. “The Home office says they will write to people, which is fine if you’re middle class and have a stable home, but that doesn’t help people living in a squat or a homeless shelter,” she said.

On the ground, according to Barbara Drozdowicz of the East European Resource Centre in London, there is considerable trepidation and uncertainty, partly caused by the fact that the system has actually created five categories of people in the community she serves — those with full settled status, those with pre-settled status, those awaiting a decision, the late applicants and then new arrivals. 

The fact that the registration process is digital — and applicants receive a shareable code that landlords, employers and local authorities need to prove their eligibility for services — also creates a barrier for older, vulnerable citizens.

“There are so many things to be worried about, I don’t know where to start,” said Drozdowicz who added she was still awaiting guidance, for example, on what happens to late applicants living in, say, a refuge for domestic violence or others receiving housing benefit.

“We still don’t have clarity, but the worry is that EU victims of domestic violence in a refuge will face eviction because no one knows who is going to pay for their beds,” she said.

The government, to be clear, has said it is not looking to pick a fight on this issue. Priti Patel, the home secretary, promised this week that the UK would look to be “compassionate, proportionate and pragmatic” adding that EU citizens in the UK were a “cherished” part of the population.

But the proof of this pudding will very much be in the eating, because Patel’s pledge for compassion and flexibility will be played out via very inflexible systems. The Home Office, after all, is the government department that brought us the Windrush scandal, and then bungled its own compensation scheme. It is institutionally uncompassionate and inflexible.

The fact that the UK is fighting in the courts to avoid paying benefits to those with pre-settled status who cannot show they have a further right to reside — such as being a worker — does not inspire confidence on the EU side that the UK will not revert to its hostile environment instincts.

Diplomats from three different EU member states that the Brexit Briefing spoke to this week, while recognising the mutual good work done on citizens’ rights so far, all expressed nervousness about what was to come. 

Treatment of citizens overseas is an obviously neuralgic issue for all governments, which is why Maros Sefcovic, the EU lead on Brexit, reassured EU ambassadors at their meeting in Brussels this week that the European Commission would keep raising it with the UK authorities.

It may well be that the UK has the best intentions in this area, but as we’ve seen only recently with the treatment of EU jobseekers, the “system” may have other ideas.

Both sides will want to avoid this issue becoming a running sore, but the UK decision to create a multi-layered system of settled and pre-settled status — one EU diplomat described the system as “baroque” — may yet be one that the British government comes to regret.

Brexit in numbers

This week marked the five-year anniversary of the EU referendum and in all the coverage, one persistent fact seems to shine through — very few people have changed their minds on the matter, despite all the tumult of the past five years.

And as the latest What UK Thinks/NatCen rolling poll on Brexit attitudes showed this week there is little contradiction between recognising that Brexit hasn’t been brilliant while holding fast to the belief that it was a good idea.

Even among Leave voters, only 35 per cent reckon that Lord David Frost got a good deal from Brussels in the trade and co-operation agreement — though that number obscures the fact that some Leavers blame Brussels for this failure, while others wanted no deal at all. 

But overall, the fact is that four out of five people who voted in the 2016 referendum said they would still vote the same way.

Diehard Remainers might still be hoping for a moment of epiphany among Leavers that it was all a terrible mistake — perhaps when the Covid-19 restrictions are lifted and the flaws in the TCA are further revealed, or maybe if the opposition Labour party starts to do more to highlight Brexit’s operational shortcomings. 

But I wouldn’t bet on it, at least not in the near future. It is striking when interviewing Brexit voters who have themselves been negatively affected by their vote to Leave (Brexit Briefing recalls the owner of a trucking company short of labour, the antiques dealer now struggling to trade with France and the motorsport signage maker losing clients in Hungary) who said they still wouldn’t change that vote.

Even in Kent, among Brexit-voting residents whose lives have been blighted by the bright halogen lights of the new “Farage Garage” customs park, the New York Times reports that Brexiters’ minds have not been changed. 

As Sir John Curtice, the polling guru behind the survey, told me, Brexit was about something more fundamental than economics or process. It was a statement of values that has come to define many of us, with 40 per cent of voters still describing themselves as “Leavers” or “Remainers”.

This is not to say that the debate on Europe is over — that would be a rash prediction indeed given the past 45 years of UK politics — indeed it suggests that leaving has not led to healing. That debate will remain divisive and tribal for some years yet.

And, finally, three unmissable Brexit stories

• The European Commission is expected to grant a three-month extension to a grace period before restrictions come into force on exports of chilled meat products from Britain to Northern Ireland, diplomats have told the Financial Times.

• The FT’s Lex team has created a video to assess how Brexit will reshape the City of London. From a type of Singapore-on-Thames at one extreme to a lawless Dodge City on the other — and all scenarios in between.

• Boris Johnson urgently needs to produce a strategy that will enable British agriculture to cope with the “seismic” changes that will flow from the UK’s new liberalising trade deals, the National Farmers’ Union has warned in a letter to the prime minister.