The Government's negotiating objectives: the rights of UK and EU citizens Contents

4Identifying and registering qualifying EU nationals

52.We have been told that there is no record of how many EU nationals are currently living in the UK.81 The UK does not have a population register or a comprehensive database of who is here and who is not at any one time.82 So the first task is for the Government to work out how to identify the estimated three million who rely upon free movement as a basis for their right to remain.

Permanent residency

53.The nearest thing that the UK has to identifying which EU nationals have moved to the UK and lived here for a period of time is the permanent residence card. Anyone who continuously exercises their rights under EU law as a worker, self-employed person, self-sufficient person or student for five years is entitled to permanent residence. It is possible for an individual to apply for a permanent residence card to demonstrate that they have lived in the UK for five years. It is not mandatory but it is a necessary step in the application process for naturalisation to become a British citizen for those who wish to do so.83

The permanent residence application process

54.The permanent residence card application system has received considerable criticism. Anne-Laure Donskoy, Co-Chair of the 3million, said that her organisation was receiving a lot of inquiries around the process. She said:

There is a sense of urgency and that we are having to justify a right to stay already at the moment. That in itself is causing a lot of anxiety because the process is a bureaucratic nightmare of Kafkaesque proportions. We all know about the form. There is an unreasonable burden of evidence put on the applicant.84

55.The information required is onerous. The Home Office asks for documentation preceding the five year period for which the applicant is demonstrating residence and asks to know whether an applicant has ever received any welfare benefits and how much have been received, “from day dot, not just those five years.”85 Ms Donskoy demonstrated to us that she had accumulated three to four kilograms of paperwork for an application that represented “just over half of what it will be like at the end of the day.” Ms Donskoy said she was being asked for paperwork covering every time she had left the country over the past 30 years.86 Sunder Katwala, British Future, confirmed that applicants had to show evidence of each time they had left the country so they could demonstrate they had not been outside the country for 450 days across the five years, or for 90 days in a year.87

56.Barbara Drozdowicz was concerned that applications had been turned down on the basis of incomplete evidence. She argued that this represented an unjustifiable hurdle:

So, my life in Britain might be evidenced beyond reason over the last five years, but 17 years ago I might not have kept something. This is questionable practice and that is appealable practice, because, as far as guidance goes, permanent residence relates to the last five years. Therefore, whatever happened earlier should not be part of it.88

57.After their evidence session, the 3million carried out research into what other EU countries require of applicants to qualify for a permanent residence card. The UK form is 85 pages long and has to be completed in hard copy.89 The next longest is the Danish form at 12 pages. The average of 25 European countries is four pages. The French have a form that can be completed online. Anne-Laure Donskoy noted that “France is the grandfather of bureaucracy. Knowing that the UK has overdone it compared to France is remarkable.”90 The process in the UK costs £65 while the average across Europe is £28.26.91

58.There are also practical questions around the application process and the accessibility of information. The Home Office has published official guidance, which Anne-Laure Donskoy described as “not very clear or complete” adding “a lot of people do not have straightforward cases because life is not straightforward. They will most probably need the assistance of an immigration lawyer. There is no legal aid for this, except in extremely exceptional circumstances. That is an extremely expensive business. A lot of people are waiting to see what is going to happen before they even start. That is also my case: I am having to wait to see because I cannot afford an immigration lawyer”.92 EU nationals have never needed immigration advice and the advice services are not tailored to assist them.93

59.We asked our witnesses how the system could be improved. Barbara Drozdowicz, said the absolute minimum was that the system for evidencing stay had to be simplified.94 Anne-Laure Donskoy said that the Home Office needed to stop asking applicants to explain all their absences abroad, stop asking for documentation beyond certification of employment, and stop asking self-employed people for every piece of paperwork over five years.95

60.Sunder Katwala suggested asking those who have been here five years or more to go through a light-touch process, made available locally, and using the current network of local Nationality checking services provided by local authorities to check UK applications for British citizenship and British passports.96 Applicants could attend in person, have their documents checked, clarify discrepancies and arrange to return with any additional documents required. This would avoid the applicant giving up their passport and would preserve their freedom to travel. Complicated cases could be escalated to the Home Office.97

61.Anne Laure Donskoy wanted the application to be made free to encourage more people to apply, and the application process should be fully online including the facility to scan and upload documents.98 Sunder Katwala said the cost should be capped—the current fee for permanent residence is £65, much lower than the £1,800 for a non-EU person to apply for indefinite leave to remain.99

62.Sunder Katwala also raised the possibility of using HMRC data for applicants who have clearly been working in paid employment with an employer for over the five years.100 Similarly, Nicholas Hatton proposed that the Home Office could cross-check applications with the national insurance records held by HMRC and the DWP.101 We asked HMRC whether this was possible. Jon Thompson, Chief Executive, HMRC, told us:

HMRC cannot provide confirmation of an applicant’s nationality because this information is not collected for tax purposes. However, in the context of the legal framework and current practice outlined above, HMRC does have the legal vires to provide support to the Home Office to verify the employment history of EU nationals. This could be done by the provision of employment income information for a period of up to 5 years. The Home Office has been clear that it needs to continue to simplify and automate its application processes for EU nationals and we are working closely with them on how HMRC can support this.102

63.The current process by which EU nationals can apply for permanent residence using an 85 page form and requiring copious supporting evidence is too complex and onerous for clarifying the status of up to three million people. The Committee observes that the application process is disproportionately burdensome, and questions why it involves collection of information which goes far beyond what is required to prove residence over a 5-year period.

64.We call on the Government, as a matter of urgency, to look to streamline the system. While there will always be complex cases that require detailed consideration, it should be possible to clarify the status of the vast majority of individuals simply using a localised and streamlined system as proposed by British Future.

65.One simple way to streamline the process would be for the Government to use data it already holds on applicants rather than ask each individual applicant to go back over their personal records over many years to duplicate that information. We call on the Home Office and HMRC to set out what they are doing to share data to improve the process for EU nationals establishing their eligibility to remain in the UK once the UK leaves the EU, and how that will reduce the administrative burden for the applicant.

66.It will be important to get this process of documentation completed speedily, as after the UK leaves the EU, employers will need to see proof of an individual EU citizen’s right to work in the UK. This would be needed to avoid what happens to some non-EU citizens applying for further leave in the UK whose employers dismiss them because they cannot show a currently valid visa, even though they have a legal right to carry on working while their application is being considered.

Refusals and invalid applications

67.The most recent figures show a rejection rate of nearly 30 per cent for all applications for permanent residence. This compares to a rejection rate for applications for indefinite leave to remain of 5 per cent.103 The two main reasons for rejections are failure to meet the requirement for Comprehensive Sickness Insurance (CSI) and provision of incomplete evidence (either gaps in the documents within the five years or going back further into the past).104

68.The permanent residence application requires an applicant who has been self-sufficient or a student to give details of comprehensive sickness insurance. The guidance notes explain that this requires either something from a private medical insurance provider detailing the level of cover (including for the individual concerned and their family members), a Valid European Health Insurance Card (EHIC) issued by an EEA Member State other than the UK; or an S1, S2 or S3 Form.105

69.Anne Laure Donskoy told us that in 2012 the European Commission recommended that access to the NHS should be considered as fulfilling the requirements of comprehensive sickness insurance. In 2014 the Court of Appeal ruled, in the case of Ahmad, that access to the NHS did not fulfil the requirement of having Comprehensive Sickness Insurance.106 However, Anne-Laure Donskoy said

If I go and see my GP or if I have to go into hospital, nobody asks me about it. People like me, who have been here forever as it were—I never knew about it. Other people don’t know, so they get caught out and get rejected on that point. CSI, as it is known, doesn’t actually exist in the insurance world.107

70.Monique Hawkins, a Dutch national living in the UK, said there were examples of applicants not being told about CSI even when they asked what conditions they needed to fulfil, including when asking about enrolling at Universities, at job centres when made redundant, and at doctors’ surgeries. She said that individuals were explicitly told that they did not need private insurance as they could use the NHS.108

71.Sunder Katwala said the single thing that would make most difference would be getting rid of the CSI requirement. He said the rules on CSI changed in 2004, so more recent arrivals from the A8 (the EU states that joined in 2004) or the A2 (Romania and Bulgaria who joined in 2007 with transition controls until 2014) might be familiar with it but applicants from the old EU 15, and who might have been here for many years, were unlikely to be aware of it. Mr Katwala proposed either waiving the CSI requirement or stating that eligibility to the NHS fulfilled this requirement.109

72.On the number of rejections, Nicholas Hatton said EU nationals are being told to evidence their residence in the UK and secure their rights by going through the process, but the process was not designed to register 3 million people, so “we are seeing a very large number of people being refused.”110 We were told that some rejections are accompanied by so-called “Prepare to leave the UK” letters. Concerns were expressed to us regarding the threat of deportation. Statistics on decisions on applications for Documents Certifying Permanent Residence issued to EEA nationals, and the numbers refused and invalid are given below.111

Grant and refusal of residence documentation to EEA nationals and family members

Documents certifying permanent residence and permanent residence cards

Granted

Refused

Invalid

2013

22,479

13,204

2,393

2014

19,749

6,935

3,022

2015

18,064

5,984

3,223

2016

65,195

19,370

7,740

73.The Government should state that access to the NHS is considered sufficient to fulfil the requirements for CSI, and that it will introduce legislation to that effect if necessary.

74.The Government must not create or retain a system with unrealistic administrative and technical hurdles, so that a substantial proportion of applications are declared invalid or refused. To do so runs the risk of either directing a large number of individuals into an appeal mechanism, prolonging their anxiety and further draining Home Office resources, or leaving a number of individuals who fail in their application and decide to stay living and working illegally in the UK.

75.Letters which reject applications for permanent residence should not be accompanied by the words “Prepare to leave the UK” unless there are grounds for removal because the applicant does not have a right to remain.

Home Office capacity

76.The number of applications for permanent residency has doubled over the past year and is expected to carry on increasing.112 There were 4,000 grants of permanent residence in the third quarter of 2015, compared to grants of 14,500 in the third quarter of 2016. Despite the increase, the number of overall grants of permanent residence represents a small share of the estimated 3.2 million EEA nationals living in the UK at the beginning of 2016.113

77.The Migration Observatory said this highlighted the logistical challenge facing government and that, at pre-referendum rates of processing, giving residence documents to all potentially eligible applicants would take the equivalent of 140 years.114 The Home Office has also seen its full time equivalent staff reduced by 10 per cent since 2010.115

78.Jonathan Portes, Professor of Economics and Public Policy at King’s College London, said the task involved arranging a legal process, providing guidance, administrative procedures, computer systems and recruiting or allocating staff to process applications. To manage something involving this number of people was a big task, and “the sooner the Government start putting in place the systems and processes needed to deal with this, the better for all of us.”116 The Home Office currently has a six-month deadline to process permanent residence applications, and the applicant has to submit original documents, including their passport. Barbara Drozdowicz said that, understandably, some of her organisation’s clients found that giving up a passport for potentially six months was extremely inconvenient. If the system became overwhelmed by applications, there would be an impact upon the day-to-day activity of the Home Office and a large number of passports would potentially be stuck in a Home Office backlog.117

79.Managing the permanent residency application process represents a considerable challenge for the Home Office, one that may affect its day to day work. It needs to be transparent about the necessary financial and human resources required and what it is doing to put them in place. The Government needs to be preparing now.

80.The current process for consideration of permanent residency applications is not fit for purpose and, in the absence of any concrete resolution to relieve the anxiety felt by the estimated three million EU citizens resident in the UK, it is untenable to continue with the system as it stands. We recommend that the Government set out whether it intends the permanent residence system to be the basis for EU nationals to demonstrate their eligibility to reside in the UK once the UK leaves the EU. If so then it needs to set out as a matter of urgency, how it will reform the permanent residence application system. If not, then it needs to set out what an alternative system will involve and what will be expected of EU nationals to demonstrate their eligibility to reside in the UK once the UK leaves the EU.

What the Government needs to consider in a reformed system

Certification

81.The Home Secretary has said that all those EU citizens resident in the UK will “need to have some sort of documentation” to demonstrate their right to remain after the UK has left the EU. While the Government would not set out what it would require, she said it would be done in a phased approach.118 The UK does not operate an ID card system. However, it does require non-EEA migrants staying for more than six months to have a biometric card.119

82.When asked what would be the simplest way to reassure her that she could remain in Belgium, Debbie Williams said UK nationals like her could have a simple stamp in their passport to say they will not lose any of the rights that they already have and they can continue their lives as they do.120 The UK could operate a provision along these lines meaning that a stamp in the passport of an EU national in the UK was sufficient evidence that they were entitled to live, work and access services in the UK.

83.The Government needs to explain what form the certification will take to enable an EU national, who has established the right to remain in the UK under free movement, to continue to enjoy the right to remain, work and to rent accommodation, once the UK has left the EU. The Government needs to devise a process that is simple, accessible and relatively inexpensive for the EU national to go through to meet those requirements.

Qualifying date

84.Applicants are currently required to demonstrate that they have been resident for five years. If the Government triggers Article 50 in March 2017 then the prescribed timetable would result in the UK leaving the EU within two years, i.e. in March 2019. Those who have less than three years residence on the date Article 50 is triggered will therefore not be able to apply for permanent residence before the UK is expected to leave because they will not have accrued five years residence in the UK.121 There will therefore be a cohort of people who moved to the UK before the referendum, exercising their lawful rights under free movement in good faith, who will not be able to demonstrate five years residence by the date the UK leaves the EU. Others will have arrived in the UK between the date of the referendum and the date of the triggering of Article 50. Others still will arrive after the triggering of Article 50. None of these groups will be eligible to apply for permanent residency before the UK leaves the EU so a decision needs to be taken about whether and how to regularise their status, and, if so, what the cut-off date for arrivals should be.

85.At some point, the Government will have to decide the criteria for who is allowed to stay once the UK leaves the EU. The minimum would be to limit the right to remain to those who have already satisfied the criteria for permanent residency. Alternatively, an offer of permanency could be made to all those resident in the UK by a specific cut-off date. If this approach is taken, then decisions will need to be made about not only what date is chosen but what is required to prove residency on that date.122 Whatever the criteria, Sunder Katwala said that it would be problematic to rely on the permanent residence process given that the system appeared to be struggling already. He suggested that the early applicants were both “a very organised group of people” (and therefore arguably the easier cases) and only 1 per cent of the 2 million people who have five years’ residence.123

86.The commonly suggested options for the cut-off date are:

87.EU nationals settled in the UK before the referendum can argue they came to the UK exercising their treaty rights with an expectation that they would be able to stay. Since that date, and the result of the referendum being known, it is less easy to argue an expectation of a right to stay and harder still for those who arrive after the triggering of Article 50. However, EU nationals can exercise their treaty rights as long as the UK is a member state, and that means up to the date the UK leaves the EU.125 There are concerns that a later qualifying date may lead to a surge in the number of migrants coming at the last available moment. This could be complicated further if the negotiations result in EU nationals in the UK continuing to enjoy the rights of free movement after the UK ceases to be a member state of the EU.126

88.There will be some people the Government knows it wishes to exclude, such as those who have served long prison sentences. There may be some EU nationals who have worked in the UK but whose employers have not made national insurance payments. At the same time, there are reasons why many EU nationals might not be able to prove five years history in the UK by virtue of HMRC or DWP data. They might have been working but avoiding tax, deliberately or because their employer failed to pay contributions.127 There will be some people the Government does not necessarily want to exclude, such as full time students or someone who has been raising children or caring for a relative, but who, nevertheless may not have a substantial work history in the UK. The system will need to be able to adjudicate fairly in such cases.128

89.EU citizens who have been living in the UK for five years at the point we leave the EU will already have a right to remain. The Government should make clear that these individuals will be entitled to permanent residence.

90.The Government should clarify what the position will be for EU citizens who will not have been living in the UK for five years prior to the date that the UK leaves the EU so that they can qualify for the right to remain, having regard to their current rights under EU law.

91.The Government will need to set a cut-off date for EU citizens arriving in the UK. Those who arrive before this date should retain the right to qualify for permanent residence after they have been here for five years. The Government should announce what this date will be as soon as possible.

Northern Ireland and the border

92.Particular concerns arise around individuals who have paid, or are paying, tax and so contributed to the welfare system on one side of the border but live or have retired on the other. The permanent residence entitlement process limits the number of days one can leave the country; this is clearly an unrealistic expectation for EU nationals who may live and work either side of the border in Ireland.129

93.The border of Northern Ireland and the Republic of Ireland will present particular challenges in the applications from EU nationals living and working in the Irish border region. These individuals’ rights would not be protected by the operation of the Common Travel Area, so the UK Government should seek to ensure that they are protected. There are a number of tax and benefit related issues that will require specific attention affecting UK, Irish and EU nationals.

Families

94.At the moment, if an EU national is working in another EU member state, then they are able to bring family dependants, who also have the right to reside and work in that country, regardless of their nationality. Their children have the right to be educated on the same terms as nationals of the host country.130 Some countries may require an individual from another member state to report their presence with the local authority.131

95.A family member from outside the EEA, who wishes to join a family member in the UK for more than six months, has to apply for a family of a settled person visa, which is subject to some eligibility criteria. The Home Office aim to make a decision within 12 weeks. The eligibility requirements for a non-EEA spouse who wants to join a UK partner in the UK has specific requirements, including a minimum income of £18,600 per year (which increases if bringing in children).132

96.Concerns have been raised around what rules would apply for family members in the future, including dependants who might not be self-sufficient such as elderly parents, and spouses.133

97.The Government needs to set out what rights will continue for those EU nationals living in the UK as a spouse or child of a UK national. The Government needs to set out what the rules will be for EU nationals currently resident in the UK and who wish to bring family members to live with them, after the UK leaves the EU.

What do we do with the people who do not qualify?

98.There is no suggestion in the UK or across Europe that large numbers of EU or UK nationals will be deported. However, it seems unlikely that the UK’s permanent residence process will be able to process all the applications in time and, on current form, it seems to be rejecting a large proportion of those applications. It is not clear what is going to happen to those who do not acquire permanent resident status. There is a risk that it will turn a body of people currently living and working legally into illegal migrants, vulnerable to exploitation.134

99.The Home Office is not processing applications for permanent residence fast enough and is currently rejecting, for whatever reason, one third of those applications it is processing. This could potentially amount to one million people. The Government needs to set out what it proposes to do with large numbers of people who have not established permanent residence once the UK leaves the EU. If the Government plans to replace the permanent residence process with another system, then it must do so as soon as possible. Whatever system is established, it must respect the fundamental rights of applicants in accordance with our domestic and international obligations.


81 Q14

82 Q762

84 Q606

85 Q619

86 Q606

87 Q763

88 Q607

89 Q628

90 Q632

91 The 3million (OBJ0148)

92 Q619

93 Q764

94 Q622

95 Q622

97 Q622

98 Q622

99 Q765

100 Q765

101 Q622. See also Joint Committee on Human Rights, Fifth Report of Session 2016–17, The human rights implications of Brexit, HL Paper 88 HC 695

102 Correspondence from Jon Thomson, Chief Executive, HMRC, to Hilary Benn MP, Chair of the Committee on Exiting the European Union, 8 February 2017

103 Q763

104 Q607

106 [2014] EWCA Civ 988

107 Q606

108 Monique Hawkins (OBJ0133)

109 Q763

110 Q606

113 The number of grants in the fourth quarter of 2016 was 32,481

115 Whitehall straining under added Brexit workload, Financial Times, 26 January 2017

116 Q762

117 Q627, Q762

118 HC Deb, 5 December 2016, col 4

120 Qq683–684

121 Q622

122 Q764

123 Q762

124 Q766, House of Lords EU Select Committee, 10th report of Session 2016–17, Brexit: acquired rights, HL Paper 82, Joint Committee on Human Rights, Fifth Report of Session 2016–17, The human rights implications of Brexit, HL Paper 88 HC 695, Home Affairs Committee Sixth Report 2016–17, The work of the Immigration Directorates (Q1 2016) HC 151

125 Joint Committee on Human Rights, Fifth Report of Session 2016–17, The human rights implications of Brexit, HL Paper 88 HC 695

127 Q773

128 Q622

129 Q626

133 Brits in Europe (OBJ0089); Q603, Q626, Q639, Q657

134 Q773




3 March 2017