EU citizens’ rights are not a done deal: the “settled status” explained

Negotiations by the EU and UK are yet to provide proper reassurance for EU citizens in the UK. 

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The referendum was just the start: after being used as bargaining chips in the Brexit negotiations, EU citizens now see their right to remain in the UK depending on their “settled status”. But under the current set of proposed legislation, detailed by both the Home Office and the European Commission’s draft withdrawal agreement, many EU citizens may not meet the requirements.

Advocate group the3million and legal experts fear that “settled status” does not properly protect and replace the rights EU citizens in the UK will lose once the country leaves the EU. To the3million, the phase 1 Withdrawal Agreement text, agreed by the UK and the EU in December, “strips 3.6m EU citizens completely of their rights, making them undocumented, irregular migrants, until they successfully apply for settled status, with lesser rights and protection”.

According to the Home Office factsheet on EU citizens’ rights, “the Withdrawal Agreement will protect those EU citizens who have been exercising free movement rights in the UK at the time of the UK’s withdrawal from the EU on the 29 March 2019”. The government has promised a “streamlined, easy to use”, low-cost and digital application process. It is currently being tested and should be implemented starting this fall, with a two-year “grace period” after March 2019 for EU citizens to have time to apply.

The Home Office expect “the vast majority of cases” to be granted, with refusals “most likely to be because of serious criminality or if the person is not an EU citizen (or family member) or not resident in the UK”. But the3million estimate that about 10 per cent of EU citizens will “fall through the cracks” of the settled status – either because they will see their application rejected or because they will not apply at all.

The settled status is a major issue for the3million, which has been concerned about its legal wording, requirements and practical application since Theresa May first proposed the system back in June 2017.

“Five years of continuous residence”

The Home Office factsheet promises eligibility to apply for settled status to “those who have already had five years of continuous residence in the UK”. The others – who will be “able to remain in the UK to build-up five years’ continuous residence” – are believed to be required to apply to a temporary status for the years they need to build up. It does not specify what rights they will be granted in the meantime or if they will be able to leave the country. It also means they will have to pay the application fee twice – for temporary, then “real” settled status – and can get their application rejected each time.

“Lawfully resident”

EU citizens must be “lawfully residing in the host state on the date of the UK’s withdrawal” to be covered by the Withdrawal Agreement, according to the UK-EU phase 1 agreement. For the3million, this means trouble, as “lawful” in this context only covers those who meet the “exact same conditions” as required for settled status, the group said. “‘Lawfully’ does not cover the long-term unemployed, disabled, carers, stay at home parents, pensioners and many others unless they met the lawful conditions for a full five years before they became economically inactive.”

Comprehensive Sickness Insurance (CSI)

The reason why all the people listed above by the3million may not be considered a lawful resident lies with “comprehensive sickness insurance” (CSI), a Home Office requirement for UK permanent residence.

In the EU’s draft withdrawal agreement, “the ‘comprehensive sickness insurance’ requirement still applies”, the EU and human rights law expert Steve Peers tweeted. “The UK promised to waive it but that's not legally binding.” Peers called CSI a “big issue for many”. “The EU27 should insist that the UK is legally bound to disapply the comprehensive sickness insurance requirement”, the3million added. 

A letter to the President of the European Council Donald Tusk, signed by representatives of the3million, its UK citizens in the EU equivalent British in Europe, MEPs and legal experts, is calling for the CSI requirement to be dropped. The letter reminds Tusk of the “reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families” that were promised as negotiating guidelines by the European Council.

If this requirement remains, settled status will not be granted to anyone who cannot prove CSI for five years in the UK. It is certain to be a major issue for a large number of people, from stay-at-home parents, to freelance workers, to carers and disabled people.

Public services, healthcare and pensions

Access will all be granted for “those covered by the agreement”, according to the Home Office. It is unclear whether this will include people on temporary status, or waiting to be granted it. It certainly will not include anyone who isn’t granted settled status – including all the people listed above, who will not qualify for CSI and may therefore be rejected.

Cost

The Home Office promises that a settled status application will cost “no more than the fee paid by British people to get a passport”. That is £72.50 per person, per application, so people applying for temporary status will have to pay twice. (Before 24 June 2016, EU citizens did not have to pay for the right to live in the UK).

As the application process will be fully digital, there is also a risk that the elderly, people who do not have access to a computer, and less digitally-savvy EU nationals will struggle to apply.

Right to return

The Home Office factsheet stipulates that “once obtained, people will be able to be absent from the UK for up to five years without losing their settled status.” For the3million, as well as “locking in EU citizens in the UK with no lifelong right to return” (which they enjoyed before Brexit), this will leave “1.2m British in Europe land locked in the country they currently reside, and unable to carry their rights from one EU country to another.”

The EU Commission’s draft is not final: it has not been agreed by the EU member states, the UK, or the European Parliament. The European Parliament in particular is crucial: it will vote on the final deal, and its Brexit coordinator, Guy Verhofstadt, has warned that citizens’ rights remained an issue that the Parliament would closely monitor.

“It’s not acceptable for us that rules will continue without change for financial services, for goods, for whatever other business, and only for the citizens, their situation will change. That is penalising citizens”, he said when Theresa May declared that EU nationals coming to Britain during the transition would not enjoy the same rights as those who were here before March 2019 – something she had to backtrack on after it was rejected by the European Parliament.

Verhofstadt has said that the European Parliament would “scrutinize” the EU Commission’s draft withdrawal agreement and reiterated his “steadfast commitment” to citizens’ rights. “No withdrawal agreement means no transition”, he tweeted.

With the Irish border issue – another of the Brexit red lines that were assumed to be a “done deal” in December, but are not – back to haunt the cabinet, the detail of citizens’ rights negotiations risk being overlooked. Both remain critical, and the clock is ticking.

Pauline Bock is a New Statesman contributing writer based in Brussels. She writes about Brexit, the EU, France and the Macron presidency.