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5 shortcomings of today’s announcement on EU citizens.

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Posted on June 26th 2017

Today the Government laid out its counter-offer to the EU regarding the rights of EEA nationals and their family members, described by Theresa May as ‘fair and serious’. For many it will fall far short of that.


Here are JCWI’s five main concerns about what we learned today:


    1. No certainty for wider EU treaty rights holders. The proposals do not provide any certainty for wider EU treaty rights holders who are not EU citizens/family members. In particular we remain concerned about the position of:
      • British citizen children who are cared for by non-EU nationals under EU rights that allow them to remain in the UK with their carer. Under UK law British children do not have the same level of protection and face being taken into care, or being forced to live abroad. These are called (‘Zambrano rights’)
      • those EU citizens currently residing in the UK under rights afforded as the spouse of a British citizen who has exercised treaty rights elsewhere in the EU (‘Surinder Singh’ route)


    1. New application process for ALL EU nationals, including permanent residents. Although this announcement has been made in order to offer some certainty for EU citizens living here, in fact the Government has introduced a new and wholly unnecessary layer of uncertainty for those EU nationals and their family members who already have proof of temporary or permanent residence status in the UK. The Government has stated that those with permanent residence status will not ‘automatically’ be granted settled status. This appears to be pointless in policy terms, but will ensure that all EU nationals, including those who thought they had secured permanent status, are now concerned that their status could be taken away from them. These people have already been charged a fee for proof of their status, and gone through a stringent evidential process. They should not be forced to do so again.


    1. No details of application process/evidential requirements. The proposals do not offer any detail on how EU treaty rights holders will be able to apply for settled status, although a ‘simplified’ system is promised. It is unclear what the evidential requirements and application process will involve, as this will be a new process under UK law. Concerns include:
      • What will be the requirements for applicants in order to meet the 5 years lawful residence requirement, and what evidence will they need to provide? This will be particularly pertinent in the case of EEA nationals who fear they may have gaps in their residence status or who may be unable to provide proof of earnings, for example.
      • Will applicants be assured that the costs of applying for settled status will be no higher than the current cost for permanent residence (#65)?
      • Will applicants have the right of appeal in relation to applications for settled status, as this has now been removed for EEA nationals under UK immigration law?


    1. Family rights. Theresa May today declared that she would not split families up. However, when EU citizens obtain the new ‘settled status’ they will become subject to the UK’s heavily criticized income requirement for spousal/partner migration, and tough rules on elderly dependent relatives which regularly split up families and separate young children from parents. We call on the Government to ‘level up’ the rights of UK citizens so that they, and EU citizens already living here, are subject to fair and humane requirements on family migration


    1. Cut-off point (‘specified date’). The continuing uncertainty regarding the cut-off date for new EU arrivals accruing rights under the new scheme is unnecessary and unfortunate. There is no rational case for setting the cut-off date any earlier than the date of Brexit. It will unnecessarily create a third category of EU nationals who arrive before we leave, but after an arbitrary date. We have previously called on the Government to provide certainty on this point by ensuring that the cut-off date is the date of UK withdrawal from the EU. This is the only sensible cut-off point in legal terms. The decline in EU worker numbers since the EU referendum last June suggests that a new influx of arrivals from these countries prior to the date of Brexit looks increasingly unlikely.

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