EU Law Analysis: Citizens’ Rights after Brexit: A Personal Perspective


Professor Steve Peers,
University of Essex

I rarely say anything very
personal on this blog – or indeed, in any other context. But I think it’s important
to discuss immigration more often from a personal perspective, not just in the abstract.
Of course economic statistics are useful when discussing economic impact, and I
hope my detailed
legal analysis
of the citizens’ rights provisions of the draft Brexit
withdrawal agreement is useful for activists and negotiators. Yet since
migrants are often compared to pestilence or floods, I think it’s necessary to
point out how they are actually individuals and families living day-to-day
lives – and how changes in immigration rules will affect them as people, not as
insects or natural disasters.

I’m not directly affected by Brexit
immigration issues as such. But I did migrate to Canada as a child, and as I’ll
explain, I think my story is relevant by analogy to explain the problems that EU27 and UK citizens who have moved may face after Brexit, and why many of them are concerned and annoyed. Some other people’s stories
will have been more challenging than mine; but my case here isn’t for sympathy
for me, but for empathy for others.

I moved to Canada aged 8 with my
parents. My dad had been recruited for a factory job, and my mum hoped to
continue her teaching career. But my mum found that, contrary to what she was
told, she couldn’t continue teaching without retraining from scratch, starting
with a four-year degree. This wasn’t feasible, so she took a series of other,
less well-paid jobs instead. And my dad soon found that he had merely swapped one
troubled industrial city in Britain for another troubled industrial city in
Canada. The job he’d been recruited for vanished, and he had spells of
unemployment and time off work due to illness. Eventually, he returned to England
on his own.

Every unhappy family is unhappy
in its own way; but any unhappy
family can have its life made even worse by the workings of immigration law. Yet
despite my parents’ employment problems and my dad’s eventual departure, this
didn’t happen to us. No surprise knocks on the door. No sickness in our stomachs
as we opened an official letter. No concern that answering the phone would be
the first step in our removal from the country.  No need to face a “hostile environment” when
we opened a bank account, rented a flat, or went to school or work, at the
behest of a failed political advisor who had built a cult around an absurd net
migration target.

Why not? Because, when we first landed
at the airport in Canada, we had a meeting with immigration officials that
lasted about three days – at least, as 8-year-olds measure time. (In adult
time, it was probably a couple of hours). As a result of that meeting, when we
stepped out of the airport, my classic black British passport had stapled
inside it a precious pink form – granting me, along with my parents, permanent residence
status already.

Let’s map this on to what EU27
citizens who are in the UK already will face after Brexit. Those who are
already here will have to apply for “settled status” – even if they already
have permanent residence. In principle this status will be granted unless they
have a serious criminal conviction, but the Home Office is renowned for its high error rate.
Also, there are gaps in the agreement – for instance, for those returning to
the UK with a non-EU family, or for those who were staying at home full-time
for family reasons.  

Compared to my own situation, having
to meet the permanent residence criteria could have been a problem. My parents’
gaps in employment, and my father’s departure, would have counted against us
(my mother wasn’t a citizen of Canada or the UK, so by analogy wouldn’t have had
a free movement right in her own name). The Brexit withdrawal agreement continues
a special rule in EU free movement law which protects children of a former
worker who are in school, and their parent carer. That would have applied to me
and my mum; but the case law says that it’s not a route to permanent residence,
and the exact employment and benefits rights of the parent aren’t clear. Moreover,
the withdrawal agreement has limits on the recognition of qualifications; limits
like that when we moved had destroyed my mum’s teaching career.   

The withdrawal agreement stores up
problems for other families in future, too. The UK government fought
relentlessly to limit admission of family members of EU27 citizens after Brexit
Day, not caring that this would equally limit family reunion for UK citizens in
the EU27 too. In the text tabled yesterday,
it was clear that the UK government had “won”: future spouses and other close
relatives will be subject to more restrictive national law after the end of the
post-Brexit transition period. Note that this won’t just apply to non-EU family
members of EU27 citizens, but to EU27 citizens’ EU27 family members too; and the effect of Brexit will also be to
limit family reunion for UK citizens
who have an EU27 family member. (There’s an exception to these rules for children
of EU27 citizens, but only if they have custody of the children; so that
exception may not matter much if the spouse who has custody can’t be admitted).
A whole category
of vulnerable families – kids who are British citizens, with a non-EU parent
who might face expulsion – are simply left out of the withdrawal agreement
altogether.

So future families will have
fewer rights under the withdrawal agreement; everyone has to reapply for lesser
rights than they have now; and some people are left out of the agreement
entirely. While the UK government has promised to protect some of the latter
(returning UK citizens, and carers) unilaterally, can it be trusted?  And can the Home Office be trusted to make every
decision correctly, in light of its history of administrative problems?  

Let’s hope so; but I can see why some
EU27 citizens who came to this land with such hope now regard its government
with such fury. Recall that UK citizens living in the EU27 states were promised
(in a Daily Telegraph article
by Leave campaigners widely disseminated during the referendum) that
international law would automatically guarantee their full acquired rights,
including free movement within the EU27 states (which is not protected by the
draft withdrawal agreement). Similarly, the official Leave campaign likewise promised
to guarantee “no less favourable rights” for EU27 citizens in the UK, with “no
change” to their position; and they would be “automatically granted indefinite
leave to remain”.

I’ve even experienced this ethical
gap first hand, when I worked with a number of people to suggest a model for
giving EU27 citizens a unilateral
guarantee
of their rights in the UK. Two Leave-supporting MPs – Gisela Stuart
and Suella Fernandes (now a minister in the Brexit department) supported the
idea, but then voted
against
such guarantees in Parliament.  All this, before we even consider statements made
on buses or about Turkey.  As Brexiters’
unlikely hero might have said: never in the course of British political history
have so many been lied to so much by so few.  

Photo: author’s passport, age 8

Barnard & Peers: chapter 27



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