Guest post by Agnieszka Martynowicz and Agnieszka Radziwinowiczówna. Agnieszka M. is a Senior Lecturer in Criminology at Edge Hill University. Her research interests include migration(s), criminal justice and human rights, in particular in the context of imprisonment and immigration detention. Her current research focuses on deportations of Polish citizens after their contact with the criminal justice system. Agnieszka R. is a Marie Curie Research Fellow at the University of Wolverhampton, where she is undertaking a two-year research project ‘Brexit and Deportations: Towards a Comprehensive and Transnational Understanding of a New System Targeting EU Citizens’ (BRAD).
The Brexit Referendum of 23rd June 2016 became one of the most defining moments in British politics and social life in at least a generation. Achieving an overall majority of 51.9%, the supporters of the UK leaving the European Union (EU) secured a narrow victory. The UK Government started the exit process at the end of March 2017, developing a host of new policies and legislation to enable the ‘disentangling’ of UK’s current ties with the EU. This includes pursuing a goal of ending the freedom of movement (FOM) for EU citizens into the UK on (or soon after) the exit date.
The policy of ending the FOM was, perhaps, not a surprise given that much of the ‘Leave’ campaign was built on promises to limit EU immigration. The idea of ‘taking back control of the borders’, one of the campaign’s core demands, aligned with the Government’s policy of hostile environment initiated in 2012. On the other hand, the scope of the rights of EU citizens in the UK post-Brexit was subject to negotiations with the European Commission, resulting in the inclusion of (reciprocal) rights of residence in the EU Withdrawal Agreement (WA) in November 2018.
On the back of the WA negotiations, the UK Home Office has set up what is referred to as the ‘EU Settlement Scheme’. The Scheme requires EU citizens to apply for a confirmation of their residence that comes in the form of a Settled Status (provided after 5 years of continuous residence) or a Pre-settled Status (provided to those who are currently resident but do not meet the 5-year residence condition). Those EU citizens with Pre-settled Status will be required to remain in the UK until the 5-year residence requirement is met, should they wish to apply for Settled Status in the future. The EU citizens who obtain Settled Status now will eventually be limited with respect of periods of absence from the UK and allowed no longer than 2 years without losing permission to reside.
It has been widely reported in the media, in research, and in Parliament that the Scheme in its current form is highly problematic. While the Home Office recently ‘softened’ some of the Scheme’s requirements, significant concerns remain as to both eligibility and practicalities of access, not least due to the fact that the application process is largely technology-based (through Android phone/tablet application and on-line access). Additional challenges present to those who may be unable to meet the documentation requirements for the application (such as the requirement for National Insurance Number), are vulnerable for reasons of health or age. The concerns are such that recently, a report by the cross-party Committee for Public Accounts warned that EU citizens may be at risk of failures evident in the Home Office’s treatment of the Windrush Generation, including from being caught out by not having sufficient documentation to prove resident status. While there are several ways in which non-provision of status can be challenged, those challenges can take months or years to be resolved. Finally, concerns have been raised with respect of the documents proving that a person obtained Settled or Pre-settled Status given that the only confirmation of such status is held in a Home Office electronic database and, unlike other residence documentation, has no physical form.
EU citizens residing in the UK (estimated at 3.5m individuals) were not given a vote in the Referendum despite the fact that its result has profound consequences for their lives. Amongst other issues, the (non)obtaining of the Settled or Pre-settled Status may affect their mobility strategies. This will potentially concern a number of scenarios:
Firstly, the Settled Status will impact on mobility of EU citizens currently living in the UK by limiting their ‘permission to leave’ to 2 years. This is a considerable restriction given that under FOM, EU citizens can leave the UK for an unrestricted time while (in principle) retaining the right to return and settle again should they so wish. Nearly overnight, therefore, they will be deprived of the freedom of making decisions about their transnational activities as these will have to be weighed against the risk of losing the right to reside and work, regardless of the length of prior residence in the UK, ties to the UK, family history and so on.
Secondly, the Pre-settled Status holders may need to opt for immobility to meet the 5-year continuous residence criteria for Settled Status. This may require suspension of their transnational practices (for example, frequent visits to the countries of origin) and have the potential to affect the lives of those whose family members do not live in the UK (for example frail and elderly parents back in the countries of origin). It is important to state here that currently there is no system to move applicants from Pre- to Settled Status, leaving open the possibility of yet another system being created in few years’ time to enable them to do so. This significantly increases the uncertainty over any future rights of residence and makes the holders of Pre- Settled Status vulnerable to changes made at the whim of future governments, political climate and economic situation.
Thirdly, the application and documentary requirements may lead to individuals being refused the Settled or Pre-settled Status, with potential consequences up to and including being forced into an undocumented status and facing potential for removal. This is a real risk and is most likely to affect the most vulnerable – the elderly (or the very young); the frail; non-working family members, and so on. Refusals are also likely to follow criminal records checks, as all adult applicants in the Scheme are required to provide information about past criminal convictions from the UK and abroad. This is an important change, as now convictions abroad are not a basis for restriction of mobility unless a European Arrest Warrant has been issued. Obligatory security checks will, therefore, make those individuals instantly, and more easily, deportable.
Finally, decisions as to whether to apply to the Scheme at all may shape migratory behaviours of EU citizens. In the year to June 2018, an estimated 74,000 EU citizens arrived in the UK, while 145,000 of EU migrants left the UK (either returning to their country of origin or emigrating elsewhere). While the overall EU population in the UK has, in fact, increased since 2016, the rate of immigration has slowed significantly since the Referendum. There is no way at the moment to establish how many individuals leave or refrain from coming to the UK due to changes in the FOM. It is likely, however, that status uncertainties and continued wrangling over the terms of Brexit has already had some impact on mobility decisions.
All the above scenarios ultimately create a situation of forced mobility and/or immobility. On the one hand, the UK’s new immigration regime may force EU citizens to leave – either on their own accord or through state-led decisions (such as deportation or administrative removal). EU citizens will soon no longer be able to call upon protections guaranteed under the 2004 EU Citizens Directive that sets higher thresholds for deportation than for non-EU citizens. Changes in the legal status also open the doors to illegalization of EU citizens, affecting their mobility strategies, for example, opting to stay in the UK, risking (or being forced to) undocumented lives. Should current residents leave the UK and wish to return for work and/or family reasons, they will have to participate in the points-based immigration system, that will begin in 2021 according to the Home Office. This will mean there will be people in EU countries that will abandon migration to the UK. As such, the forced immobility is likely to extend well beyond UK’s immediate borders. Finally, discontent with the new UK immigration regime and the fear of becoming unauthorized migrant can lead to involuntary mobility of EU citizens and their family members that runs the risk of disrupting many, often very settled and lengthy prior residence and lives.
How to cite this blog post (Harvard style)
Martynowicz, Α. and Radziwinowiczówna, A. (2019) Brexit, EU Settlement Scheme and the Forced (Im)Mobility of EU Citizens in the UK. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2019/04/brexit-eu (Accessed [date])