EU citizens: steps UK Government should take if it really “wants them to stay”
16 December 2019
Now that the Conservative Party under Prime Minister Johnson secured a majority in the recent general election, the fate of EU citizens in the UK will be in the Tories’ hands. Despite their clear promise to “get Brexit done”, they have always simultaneously assured EU citizens that they “want them to stay”. We have scrutinised the measures that the Government has already taken to substantiate this promise and identified the steps the Government needs to take during this new legislature to live up to this pledge.
Whilst on paper most issues have been taken care of, several loopholes still exist, due to which EU citizens could still lose their rights at a later point.
For instance, at the moment, the Home Office website clearly states that EU citizens who have obtained pre-settled status can remain outside the UK for up to two years without losing their status, with the caveat that they will have to maintain their continuous residence if they later want to qualify for settled status. To maintain their continuous residence, EU citizens must be present for at least 6 months in any 12-month period, subject to exceptions.
However, at a closer look, the rules allow for the Home Office to curtail pre-settled status from the moment that continuous residence has been broken, which can be earlier than the 2 years detailed on the Home Office website. Whilst most of the provisions in Part 9 to curtail leave don’t apply to EU citizens, a few still do, including rule 323 (ii), which states that “a person’s leave to enter or remain may be curtailed if he ceases to meet the requirements of the Rules under which his leave to enter or remain was granted”.
For example, if an EU citizen with pre-settled status moves away for a year and a half, they risk curtailment of their leave even though they intend on residing in the UK for the rest of their 5-year leave.
Not only can the Home Office later restrict EU citizens’ rights by interpreting the Immigration Rules narrowly, it also has the power to openly change them and take away vital protections. All the legal provisions concerning the EU Settlement Scheme are currently contained in the Immigration Rules, which are written by the Home Office and can be changed overnight. If the Government is serious about guaranteeing EU citizens’ rights, they ought to propose legislation in Parliament to protect them, which is much more difficult to repeal.
Furthermore, even those who secured their settled status after applying to the EUSS can be denied their rights because they have no way to prove them. The Home Office refuses to issue physical documents, such as residency cards, to prove a person’s status. As a result, people are dependent on an online register to demonstrate their residence rights. This can attract a host of problems including when the Home Office website has technical difficulties preventing access to the online records and when airline personnel demands a physical document to prove a non-EU family member’s right to reside in the UK before allowing them to board a flight and return to the UK.
The story of a Danish-Turkish couple with pre-settled status that was stuck in a Turkish airport for 24 hours illustrates that these are not just hypothetical scenarios. The Turkish spouse was prevented from boarding a British Airways flight, after the airline personnel refused to use the online verification system and did not seem to understand the concept of pre-settled status.
Given there is a political consensus that EU citizens who are currently residing in the UK should be allowed to stay, it is time for Parliament and the Government to step up their efforts to substantiate this pledge.
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