While beauty may be in the eye of the beholder, generosity is in the eye of the recipient. A year after the Brexit referendum, the prime minister, Theresa May, published her long-awaited paper on the rights of EU citizens yesterday. Originally billed by the Conservatives as “generous”, it soon became “fair and serious”.
But let’s start with the good news – at least from the perspective of migrant EU citizens. Those with five years’ continuous residence prior to an unspecified “specified” date will be given “settled status” (ie, the right to remain indefinitely), and equal treatment with respect to access to benefits and public services. For those EU nationals who are, say, stay-at-home mums, they will no longer have to satisfy the requirement of having comprehensive sickness insurance (CSI) during the intervening five years.
So far, so good. But the devil is in the detail. How continuous is continuous? What about those who have returned to their home country for a year or so, for instance, after having studied in the UK and then come back to the UK for work? And how is the five-year period to be proved? EU nationals who have been working in the NHS or in the universities will have the paperwork (contracts of employment and the like) to show the length of their employment and in what capacity. But what about people who have been self-employed or who have worked a large number of short contracts for farmers in East Anglia, where paperwork may be less complete? Will the Home Office connect up with the tax and national insurance records in the HMRC computer?
Further, will the burden rest with EU nationals to prove their entitlement to remain (probably), or with the Home Office to show they should not? At least they will be spared the current 85-page form to complete. There will be a more streamlined process. Too bad for those who have already gone through the process: they will have to reapply.
UK nationals living in other member states will continue to enjoy UK index-linked pensions. The European health insurance card (EHIC), which pays for emergency healthcare in another member state, will also be continued, on a reciprocal basis or paid for by the UK government. And EU workers working in the UK before Brexit Day will continue to be able to export child benefit (one of the few successes notched up by David Cameron in the Brussels negotiations of February 2016 was that child benefit would not have been fully exported).
There are things in the UK’s document that really are not good for those still wishing to see free movement
But things are less good for those who have not done five years’ residence by Brexit Day. For those who arrive in the UK before the unspecified specified date (which may be 29 March 2017, the date of the triggering of article 50, or 29 March 2019, Brexit Day, or somewhere in between), there will be a pathway to acquire settled status. But for those arriving after the specified date, they can remain temporarily but have no expectation of guaranteed settled status. They may be subject to UK immigration law – with visas and NHS costs included. This may prove unacceptable to the EU, especially if the cut-off date is before Brexit Day; the UK may concede this point.
The UK still balks at the EU’s continued insistence that the EU’s court of justice should keep its jurisdiction over EU citizens exercising what are in essence EU rights for the duration of their life – so possibly many decades. This lack of trust is understandable, given the UK’s long history of attempting to restrict the rights of non-nationals. But this is one of the UK’s red lines: the UK argues that EU nationals will remain in the UK under UK law over which the UK courts must have the final say. So far, there is little to suggest either side wishes to compromise, although the UK government’s paper leaves open a vague and an unspecified “international law” solution.
Substantively, the restrictions on EU citizens’ family reunion rights post-Brexit is perhaps the area in which the pre-referendum promise that “nothing will change for EU citizens here now” is most comprehensively broken. Nobody with the knowledge of how the immigration system works for UK citizens and non-EU citizens is likely to believe Theresa May’s claim in parliament yesterday that “no families will be split up”.
And then there are some things in the UK’s document that really are not good for those still wishing to see free movement: a hint that EU students may be exposed to the full force of overseas fees post Brexit (and visas), and nothing about Erasmus.
The language of generosity sits uncomfortably with the substance of the UK offer, which resonates with the firm stamp of the Home Office and immigration control – it certainly does not go as far either as the EU proposals, first tabled two months ago, or the pre-referendum promises. The fact it has taken over a year for the offer to make it to the table suggests it was dragged out, rather than voluntarily offered up. The EU, especially the European parliament, may decide not to welcome this offer with open arms.