This blog is a part of a series of expert blogs commenting on how Brexit may affect human rights in a variety of sectors. This contribution is from Maike Bohn, Cofounder of the3million and organisation of EU citizens in the UK, which campaign for all to retain their existing rights after Brexit.

Please note, this is a guest blog and views expressed in this blog do not necessarily reflect the views of BIHR.

Brexit is a huge threat to the fundamental rights of five million EU citizens – the 1.2 million British citizens living in the EU and the 3,6 million EU citizens in the UK and their non-EU family members. They moved to other EU countries and built their lives on the expectation that EU citizenship would protect them.  They were never asked to obtain visas, were never told their stay would be temporary, and (with the exception of national voting rights) were treated in pretty much the same way as citizens of their host countries. These five million people have been able to build their lives thanks to EU rules which guarantee, for instance, that their educational and professional qualifications are recognised; that they can build up pension entitlements while moving country; and rely on health care provision when travelling.

Millions of people who crossed the Channel have built a life and social network in their new home, but most of them have also kept family and social ties in their country of origin. Now that the UK is leaving the EU, the only solution to guarantee the rights of these people is via a comprehensive international agreement between the UK and the EU as part of the Brexit negotiations.

Such an agreement is particularly important for the British in the EU.  In the absence of an EU-wide solution, these British citizens in the EU would depend on the whim of each individual country in the EU and the UK would have to try to negotiate with each of them separately.

For EU citizens in the UK, the protection of an international agreement is essential to ensure that rights are not eroded over time by this or future governments.


Turning legally resident citizens into unlawful immigrants

The 3,6 million EU citizens living in the UK and their immediate family are facing a different threat, less immediate but no less catastrophic: instead of having their existing rights granted in law and merely having to register to get proof of that status, EU citizens are being asked to apply for a new, digital-only, status.  This means their existing legal status is removed and a new status is only granted through a conditional application. If they fail to get this status by the deadline – December 2020 if there is a Withdrawal Agreement, June 2021 if the UK exits the EU without a deal – they will be punished with the threat of removal from their home.

People who have been in the UK for decades are being put on a separate, central register. Along the way, they sign away their most personal data – which the Home Office can share with undisclosed third parties –with no option to refuse. EU citizens need to submit additional evidence if their digital records aren’t seamless, undergo a systematic criminality check and hope they won’t fall into the Home Office’s 10% error rate. There is not much assistance for the estimated 30% people who will struggle with the system.

There are also those who think they already have a permanent immigration status as they hold “Permanent Residence” and don’t realise they still need to swap this for the new status. There are those non-EU family members who have already gone through an often painful process with the Home Office in the past, and think the scheme does not apply to them as they already have their “papers”. There are those who might not be aware at all of this brand-new system – for example children in care, the elderly, disabled EU citizens, students and those simply unable to cope with a digital-only application. Think tanks estimate that around 600,000 EU citizens could miss out on getting the new status, through no fault of their own. And without it they will not be able to live, rent, work or access healthcare.

The EU settlement scheme as it stands is a ticking time bomb. Innocent people will become victims of a new system not properly communicated to them. They will lose their jobs, their homes, their healthcare. They have been facing great emotional upheaval already and it is the UK government’s duty of care to maximize their protection. The UK has promised to maximise the protection of rights impacted by Brexit. Instead, they are minimising them. 


Erosion of rights over time

The legislation underpinning the new immigration status for EU citizens will largely be implemented through secondary legislation, which can be changed easily and without involving parliament. We also know little about how rights beyond residence rights will be substantially protected in the UK beyond setting them out in various pieces of secondary legislation.

One example of how existing rights could be gradually eroded over time are new regulations that allow future governments to remove EU citizens’ rights to be self-employed, own and manage companies or provide services in the UK on the same basis as UK nationals. It will also remove their right to bring nationality discrimination claims in relation to these rights.

Under the terms negotiated in the Withdrawal Agreement the UK government has committed to protecting these rights. However, in a no-deal scenario it is clear that they are being taken away from EU citizens. Even though there will not be an impact right now, there is no guarantee that barriers won't be put in our way in the future. The debate in the Lords resulted in an amendment of a 'motion of regret' being passed, which makes clear that the Lords believe the Regulations definitely remove rights from citizens, including EU citizens already in the UK.  The Lords also state their concern that this may result in a loss of rights for British citizens in the EU.


The way forward

the3million are calling for the EU settlement scheme to be changed from a constitutive to a declaratory system. Under a declaratory system, anyone who satisfies the criteria for settled status has settled status, regardless of whether they had applied for it. Those who fail to apply by the deadline will still struggle to access services – but they can be signposted to the EU settlement scheme and they can sort it out.  Just like a British citizen without a passport would not be able to travel abroad, but can be shown where to apply for a passport.

In contrast, the UK Government will currently treat that same person as not having a legal status, would throw the full force of the hostile environment at them, and may subject them to removal from the UK.

This is the human consequence of Brexit for EU citizens

To protect them the3million have drafted an amendment to the Withdrawal Agreement Bill (Amend 16) and are lobbying MPs in the coming days to get them to back the amendment which “provides for all EU citizens who are resident in the UK before exit day to have the right of permanent residence, whether or not they have been exercising treaty rights, and makes sure that every person who is entitled to settled status has the same rights.”

 Organisations like the3million who give a voice to their concerns will be needed for years to come.