Polish Londoner

These are the thoughts and moods of a born Londoner who is proud of his Polish roots.

Wednesday, 7 February 2018

Letter from the3million to Local Government Association


For the Attention of
Mr Mark Lloyd,
Chief Executive,
Local Government Association,
18 Smith Square,
London SW1P 3HZ

Dear Mr Mark Lloyd,

The3million is a grassroots organisation acting as the voice of more than three million EU27 citizens and their families in the UK, who are currently held in limbo as they await a final agreement between the EU and UK negotiators on their status after 29 March 2019.

We are writing to you as we think that local government may well be required to play a vital role in the registration process that would allow EU27 citizens and their families to continue to live, work and study in this country. We are aware that differences still remain over whether the registration process is to be merely declaratory, as demanded by the European Parliament, or obligatory, as an application for "settled status" (rather than mere registration), as currently proposed by the UK government. Either way, some form of registration is going to take place, with details resolved during the second phase of negotiations this Spring.

It seems difficult to imagine that with the best will in the world the Home Office will be able to successfully register more than three million citizens under the proposed online application proposals within a limited space of time. There will be a separate status for those here for more than 5 years and for those with less than 5 years of residence, including those likely to arrive during the proposed transition period between March 2019 and March 2021. We estimate that more than 3000 citizens would have to be processed each working day for the registration scheme to work. The Home Office has proposed to start the application scheme for "settled status" by the middle of this year on a voluntary basis, even though the final details of the scheme have not been defined or agreed as part of the Withdrawal Agreement and there would be no rights of appeal attached to this pre-Withdrawal Agreement ‘voluntary status’.

There have been consultations with many "user groups", including the3million, but they have largely been limited to the mechanics of how an online application system under the "settled status" proposal would work. Assurances have been given that an application for "settled status" will be based on checking identity, email number, residence (through HMRC and DWP records) and criminal records as well as security checks, and in the case of those residents here legally for more than 5 years, that there will be no questions about income. However there would be checks of recent long absences which would necessitate building up to 5 years again.

Home Office officials have told us they want to keep the application process firmly in their own hands via an online system, and to minimize non-online applications, for instance in case of "hard to reach" groups, even though it is clear that at least 5-10% of the 3 million or so EU nationals will not be IT literate. Cooperating with local councils has been considered by the Home Office, but they have stated their preference to recruit and train their own Home Office staff for this online application task. They are recruiting several hundreds more staff just for the online application period. However, the "hostile environment" created to counter illegal immigration has also impacted on "legal" migrants and has seen many EU27 citizens threatened with deportation. In meetings, different citizens groups’ representatives were assured that Home Office officials will undergo "a culture change", to dispel prejudice in their staff and allow for corrections and re-submission when required information has been omitted. Despite these promises we remain sceptical about the fairness, the efficiency and the supposed new groundswell of good will at the lower levels of the Home Office in this operation, and this scepticism is borne out with many examples of denial of access to justice, an understaffed and under-resourced Home Office and, on occasion, even non-compliance with court orders by the Home Office.

We have argued repeatedly that, to make it possible to register more than three million citizens in the space of two or so years, local government will need to be involved and indeed, to play a vital and leading role. We are convinced that registration of some 3 million citizens can only work if there is a light touch, local registration system purely based on residence and ID. Local government maintains electoral records, details of council taxpayers, register of births, deaths and marriages, social services records and school rolls and so is ideally placed to assist with information, where necessary regarding length of residency, relevant for the application and registration process. They also have registration processes in place and, with increased resources and capacity, could assist the Home Office with the process. This is also the view of many MPs and members of the House of Lords, as well as some Council leaders we have consulted.

With many EU27 citizens now regrettably wary of the Home Office, it is also not unlikely that many may resist going through an online application process where the pressing of a wrong button can cause you to be exposed to the "hostile environment". Others would not be informed properly about the process and the dire consequences if they fail to register within the required period. We are also worried about how difficult it could be to reach groups who may not be able to access an almost exclusively online system. On the other hand local government would be ideally placed to contact people they have on record and let them know about the need to register and can offer a local registration service rather than the proposed online application for "settled status" process.

We are convinced that, at the very least, the Home Office could engage local authorities in informing their own local EU27 residents of the need to apply for or register the proposed post-Brexit status. A useful opportunity would be as part of the electoral literature sent out by councils before the May local elections.The Home Office has been urged to explain clearly the current proposal for "settled status" and how this would differ from the current declaratory status, and the potentially serious consequences of non-application for "settled status" compared to the lesser consequences of simply registering an existing right.

Before we press this further with the U.K. government we would like to consult your organisation in order to obtain your view on these issues and to better understand how local authorities in England are preparing for the departure of the UK from the EU. The3million, as representatives of the EU27 citizens in the UK, would be happy to be considered as a consultative body and provide information where this may be helpful to you and the councils you represent. We would also urge you to consult the the3million publications and "Hostile Environment" pages for insight into our registration proposal (The Alternative Proposal) as can be found on the following link from our website: https://www.the3million.org.uk/publications.

We look forward to hearing from you or to discuss these matters further at a meeting,

Yours sincerely,

Wiktor Moszczynski
(former Borough Councillor)
Senior Adviser

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Thursday, 14 December 2017

EU citizens’ rights – two realities

As UK citizens slowly absorbed the overnight shock of the referendum result on June 23rd, 2016 and contemplated the extraordinary potential consequences, including an independent Scotland, uncertainty over the Irish border, the future of the economy, the fall of the pound, the triumph of nationalism, the one factor that seemed to remain stable was the fate of the EU citizens in the UK. After all, most of the Leave campaigners Farage, Gove, Johnson had all stressed that the EU citizens who were already here would not have to depart. It was like a constant repetitive mantra: “all EU citizens are safe”. And overwhelmingly many EU citizens, whether from Western, Southern or Eastern Europe firmly believed that. “We can stay; they need us; nobody will throw us out”. Even the sudden explosion of hate crimes against Poles and others in the 3-month aftermath after Brexit did not shake that feeling. Within 2 weeks of the referendum, on July 6th Andy Burnham, Labour MP introduced a motion in Parliament confirming that the rights of EU citizens would be retained in full. The vote at 245 to 2 was almost unanimous in favour and Boris Johnson also spoke eloquently in its favour. However, the vote was not binding on the government and the then Home Secretary Theresa May made clear that EU citizens’ rights can only be guaranteed when the EU was ready to respect the existing rights of UK citizens abroad. Weeks later she was Prime Minister, Boris Johnson became Foreign Secretary and the EU citizens became a hostage in the diplomatic poker game between the UK government and the EU. Although some EU governments made clear that UK citizens’ rights in their countries would be respected the EU Commission and the Council of Ministers refused to be drawn saying all issues can only be discussed once the Prime Minister invoked Article 50. The tabloids laid the blame for not ensuring EU citizens’ rights firmly on the EU although the principle that they be allowed to stay remained unchallenged.
In view of that it seemed like an opportunity for the Government to draw up a detailed plan on how EU citizens’ rights could be preserved on the assumption that the EU would eventually reciprocate it for UK citizens in the UK. Opposition parties and new pressure groups like the3million, New Europeans urged this on the government. In December 40 prominent UK citizens of Polish extraction published a letter urging this in the parliamentary house magazine. Even if some of the details of such a proposal could have been challenged or improved in the negotiations, at least the UK government could have set the agenda on this issue and could show it was not treating EU citizens as hostages or bargaining chips. After all, Brexit was a UK initiative and it was therefore the UK government’s responsibility, and not that of the EU, to initiate positive reassurance to EU citizens, to British businesses, to EU governments (and not least to UK citizens abroad who were expecting whatever the UK proposed for EU citizens to be reciprocated by the EU countries) and reduce the inflammatory atmosphere that had caused UK-EU relations to deteriorate so badly at this time. Furthermore, the issue of retaining existing EU citizens’ rights was generally acceptable to the electorate in numerous opinion polls, even with those wanting to introduce more immigration control after Brexit.
Yet Theresa May, whether as Home Secretary or later as PM, did not choose that option, continued to talk about the need first for the EU to show reciprocity and stoked up public opinion towards the policy of a hard Brexit. As a Remainer she needed to reassure her Brexit-dominated Party and her Cabinet colleagues that she was a keen new convert to the idea of a hard Brexit and sought to unite her party around that posed stance. This was the period before the general election when she reiterated various phrases such as “Brexit is Brexit”, “red, white and blue” Brexit and “strong and stable government” as a camouflage for a lack of clear detailed policy on Brexit while she sought to ram through any negotiations without even consulting Parliament. She had also allowed Home Office officials to broaden the “hostile environment” which she had publicly announced in 2010 as the regime that would be applied to illegal immigrants, so that it would also cover more vulnerable EU citizens, particularly in relation to failed applicants for permanent residence. This was the period when EU citizens, from Western or Eastern Europe, found that their application for PR status required details of every foreign trip over the whole period of their stay (in some cases for 30 or more years), instead of just the required 5-year period required by the EU. The UK authorities needed full details on employment and income and confirmation, where necessary, of having comprehensive sickness insurance (CSI), which should have been superfluous where all had access to a free NHS. If, for whatever trite reason, the application was refused, then hundreds of EU citizens would receive notices of deportation (often later withdrawn), although they had British families here and may have lived and worked here for decades. Yet all this time she assured Polish community leaders and EU governments that she wanted to safeguard the rights of Poles and other EU citizens in this country.
Following a challenge in the Supreme Court in December the Government had to acknowledge eventually that they would need to consult Parliament before starting the process of leaving the EU and that the referendum mandate on its own was not enough. In March 29th of this year, having got her vote through Parliament, she finally invoked Article 50 of the Lisbon Treaty and then called a general election, in order to strengthen her majority. Ironically, she lost many seats and now had to lead a coalition government with the support of the Democratic Unionists. This made her position more precarious and therefore caused her to be more stubborn, to promise various red lines, simply to keep her coalition together.
Consequently, when the EU negotiators had made clear that EU citizens’ rights was one of the three issues which needed to be resolved before negotiations could move on to issues such as trade and a possible transition period, they then published their negotiating position which included the requirement that in future all EU citizens at present in the UK should be assured of retaining the same rights, including pensions and access to the NHS, as before for their lifetime and that of their children, including the right not to have their families separated and the right to retain their status even if they had left the UK for a period of time. The right to stay for those with PR or who have eligibility for PR would be automatically registered and any appeal process would be supervised by the European Court of Justice. The EU offer was not perfect as it failed to ensure the rights of UK citizens to travel and work in more than one EU country and could not guarantee voting rights for UK citizens in EU countries, but it was able to offer most of these rights on a reciprocal basis for EU and UK citizens alike.
Instead of responding to this proposition the UK government was anxious to display that it was now a sovereign state and eventually in June it came out with its own alternative proposal using the term settled status, which until now was the equivalent of indefinite leave to remain. It offered EU citizens who had lived and worked here for more than 5 years the right to stay and work in this country with their families, with entitlement to NHS treatment, most benefits and UK pension rights, while those who would have arrived here more recently before an unidentified, as yet, cut-off date would be able to apply for settled status after the requisite 5 years had been served. Also, the much criticized CSI condition was now to be abolished. Mrs May described this as a generous offer and she wrote to the3million that “our intention is to make sure that no one who has made their home in this country will have to leave, that families will be able to stay together, and that people can go on living their lives as before”. Pressure groups like the3million and New Europeans, as well as EU governments disagreed. For instance, it was now necessary for all those who had previously laboriously achieved PR status to reapply for the new settled status, families could not be guaranteed to stay together if still abroad after the unnamed cut-off date or if the family member was a non-EU citizen and the provision of the status as well as its interpretation would be subject to Immigration Rules. Nor was it clear how up to 3 million EU citizens were to be registered over a period of 2 years (i.e. some 4000 a day) with all subjected to criminal records, when the PR registration service had already completely collapsed.

Furthermore, away from the reality of optimistic declarations by ministers and officials, there was still a second reality where more than 5000 EU citizens had already been deported against their will, where Polish and other vulnerable EU citizens, mostly East Europeans, were being detained for indeterminate periods, sometimes more than a year, in detention centres, following decisions by Home Office officials, where equally vulnerable EU citizens were initially being denied free NHS treatment and chased by court bailiffs for unpaid NHS bills, employers and landlords were starting to discriminate against EU citizens and home loans were being denied to EU citizens. Consequently, EU commissioners made clear over the six rounds of negotiation that the UK offer was nowhere near good enough.
And slowly over those 6 rounds of negotiations between June and November the process of extracting more reasonable concessions was like pulling teeth from a divided and disorientated UK cabinet. Thus low and intermittent income for self-employed would no longer become a criterion for refusal, cost of renewing settled status for those already registered for PR would be free of charge and require only evidence of residence or lack of criminal record, UK judges could hear appeals based on EU law, Immigration Rules would no longer apply and special status criteria would be based directly on the terms of the final Withdrawal Agreement, future family members, including future children, would now be covered by settled status, past criminality where sentence was completed would no longer be a bar to settled status. However up to and until December many issues remained unresolved as the cabinet battled internally over supposed red lines such as European Court jurisdiction, child benefit paid to children still abroad, and the right for all EU families to unite after the Brexit deadline, even though British citizens had no such rights. The cut-off date was now fixed on the same day as Brexit, i.e. at 29th March 2019. Every concession followed intense lobbying by pressure groups and renewed meetings on improved systems. Also, the Home Office has been consulting local communities, and specifically the Polish community at conferences in London, Birmingham and Edinburgh, where it was made clear that the previous Home Office culture of creating a “hostile environment” would be changed, that settled status would be merely swapped for PR status and that local organizations could assist in testing pilot schemes for a new simplified online system for registration.
Of course, the rollercoaster negotiations in the first week of December, finalizing the issues of the financial settlement and the Irish border may have left the European citizens issue on the side-lines but some key final agreements were made here too which were published in a Joint Statement by the EU and UK negotiators.
Following that publication, the current position on EU rights was presented by the Home Office as follows:
EU citizens who arrive here by March 29th, 2019 and have been continuously and lawfully living here for 5 years will be able to stay indefinitely by getting settled status, so they will be free to live here, work or study, have access to public funds and services, including healthcare and pensions, and go on to apply for UK citizenship. If they have not been here for 5 years they can apply for a temporary residence permit to work off that period until they reach the 5-year threshold and then apply for settled status. Close family members and dependents already here can also apply for settled status, while those who arrive later, while still in that relationship, would also be allowed to stay. This includes spouses, registered partners, parents, grandparents, children, grandchildren and persons in a durable relationship. Grounds for refusal would only be those quoted in the mutually agreed Withdrawal Agreement, i.e. a residency and criminality check. CSI will no longer be a criterion for refusing settled status but could still be invokes in relation to students or self-sufficient EU citizens seeking access to a free health service.
The Home Office promise that they will apply a more user-friendly application system for settled status, where some of the information will already have been obtained from HMRC or the DWP, missing documents or mistaken responses could still be rectified without rejection. Applicants will be required to provide an identity document with a recent photo and to declare any criminal convictions. For existing PR holders, the application will be free of charge, for others it will be the equivalent to the cost of applying for a passport. Applications could start in 2018 before Brexit and need to be completed within 2 years. Successful applicants will receive a new settled status document. All applicants can stay in the UK until their status is approved or rejected. If EU citizens had already obtained indefinite leave to remain earlier they need not make any further applications, but could also apply for a biometric residence permit if they wish or swap their status for the slightly superior settled status free of charge.
If an EU citizen arrives here after 29th March 2019 but during the 2-year transition period that person will still initially be allowed to live, work and study here but many of the rules are still subject o negotiation in phase 2 of the negotiations in 2018. For all those arriving after the end of the transition period their status will be subject to immigration rules to be decided by parliament after the publication of the Independent Migration Advisory Committee report in July 2018.
What the current Home Office guidelines did not make clear, just as Mrs May made no mention of it in her speech at the December 8th morning press conference in Brussels, was that “the competence of the Court of Justice of the European Union should be preserved with regard to the consistent interpretation and application of the citizens’ rights set out in the Withdrawal Agreement.” This means that over the next 8 years the UK tribunals should be able to ask the European Court for interpretation of rights which may still seem unclear. The decision to make such a referral lies within the competence of the UK court or tribunal.
There are further details in the Joint Agreement of the EU and UK negotiators which are not mentioned in the Home Office summary. This agreement also covers EU workers who live in one state and commute daily to another state. Any decision on granting settled status should always give the benefit of the doubt to the applicant, whereas currently it is always in the hands of the Home Office official. Also, persons who absented themselves from the UK after acquiring permanent residence do not lose their residency rights unless they fail to return in 5 years. The European Health Insurance card continues to function. There is to be no discrimination in jobs or health care provision for EU citizens. A Withdrawal Agreement and Implementation Bill will be introduced into the UK parliament to implement all that has been included in the Withdrawal Agreement, including all chapters on citizens’ rights. Significantly, the Joint Report refers only to “Special Status”, not “settled status” and a similar wording appears in EU Commission’s Report to the Council of Ministers.
Also, a number of issues are still to be resolved in the Second Phase of the negotiations. These include the rights of nearest relatives to join EU citizens in the UK who were not related at time of departure, voting rights in local elections, mutual recognition of academic and professional qualifications, and the method of monitoring the application and implementation citizens’ rights by an independent national authority which can receive appeals from EU citizens.
Just as the ultimate arbiter of the financial negotiations was the European Commission and for the Irish border agreement was the Irish government, the ultimate arbiter on citizens’ rights is the European Parliament. It is possible that on December 13th the European Parliament may exercise its displeasure on several issues with regard to the Joint Report which will be presented in the coming week to the Council of Ministers.
Firstly, the Parliament wanted the registration to cover confirmation of existing rights, rather than an application for these same rights. This is still not clear from the final document although the universal introduction of criminal checks suggests that these will indeed be fresh applications, even if only described as a “swap”. Also, they had urged that future family rights for those not yet in a relationship should be assured as well and that the ECJ should have a more active and a permanent jurisdiction rather than just on the current temporary passive basis. The3million was also pushing for these issues, along with a more permanent supervisory role for the European Court of Justice but these would be difficult to implement now. However, it would be advisable for the Home Office to change the name of settled status as it could be misleading for citizens, police and legal bodies alike to have a separate meaning for settled status for EU citizens and for non-EU citizens, and would undermine the bespoke nature of the offered status for EU citizens. It would still be preferable to refer to some kind of UK version of permanent residence which could more easily be reciprocated in the EU for UK citizens.
While many may feel satisfied with the current agreement it has to be remembered that the alternative reality is still in existence. While the Home Office is promising to change its culture in time for Brexit it is still not changing its current culture. Recent suicides and attempted suicides by EU citizens facing deportation either at home or in detention centres is high. Current procedures with regard to expulsions of EU citizens should be in accordance with EU Directive 2004/38/EC, which refers only to the deportation of those who are a serious current threat to society or to security. Yet Poles who have families here have been deported for minor crimes past and present such as drunkenness or cheating on a tachograph, regardless of whether they have family here with children. “The Guardian” has reported how Polish fathers have been arrested and deported for a past crime in Poland after they complained to the police about being harassed and intimidated by neighbours or employers. There is considerable hostility still to East Europeans in the job centres, local government offices, health trusts and police stations in provincial Britain where at any excuse Poles have been told to consider returning to their own country. If there is this much uncertainty and hostility now while the UK is still a member of the EU, how much worse can it get after Brexit? Without supervision by the European Court of Justice, what is to prevent a future hostile government to repeal the Withdrawal Agreement and Implementation Act?
For those reasons it is still wise to consider retaining active and permanent monitoring by a European body with clout like the European Parliament, so that whatever is agreed on paper may still not give sufficient guarantees to Polish and other citizens and their families about the future.
Wiktor Moszczynski London 12th December 2017

Saturday, 11 November 2017

Mistreatment of EU citizens in East Anglia

On Sunday I visited Great Yarmouth at the invitation of the local immigration advice agency - Atena Porady (actually based in Lowestoft). She serves EU citizens, mostly Poles, but also Lithuanians, Portuguese, etc. She has close links with a solicitor's office and is able to access legal services to her clients at a reasonable rate. She is horrified by a number of Polish advice agencies which consistently give harmful advice.
She gave me ludicrous examples of how the Home Office has behaved in the last year with applicants for PR.
One example - a Polish lady married for several years to a Pakistani. When she applied for PR it was refused because the Home Office accused her of a sham marriage, which it is not.
A second example - a Polish lady employed for 11 years in an estate agent but before referendum never bothered to apply for PR as she thought it unnecessary. She lodged the usual documents along with her passport. Several weeks later the passport was returned as the Home Office took a copy of the document. A month later her application was rejected because there was no passport on the file.
Another Polish lady applied in the usual way and her application was rejected because there were no photographs, but the photographs in an envelope attached to the application form were returned with her other documents and the refusal form. She reapplied using the same questionnaire but the Home Office refused again because page 6 was apparently missing from the application. The agency adviser thinks the Home Office removed that page earlier so its absence when resent to the Home Office was not noticed.
Another of her clients was notified that her application was going to be refused because her birth certificate was missing. The Agency worker who supervised the completion of the questionnaire rang the Home Office official asking her to look again because the certificate was definitely sent, and a minute or so later the official confirmed she had "found" the certificate as it had fallen on the floor. When their application was returned it transpired that her son's name was misspelt. When the agency worker lodged a complaint she was told the correction could not be rectified but a new application could be made for him with the corrected spelling.
The agency worker told me it is now impossible to follow up complaints as there are either no responses, or worse the email addresses supplied are changed and other addresses claim they know nothing about the case and it then becomes out of date.
She described the treatment by the Home Office as a kind of mendacious negligence by Home Office staff. Refusals are prompt and since the referendum PR acceptances are very rare.
Even worse is the behaviour of local officials in East Anglia. Job Centre staff and police officers whom she has pursued in her casework have been under the impression that all Poles will be leaving after Brexit and are acting as if they were surprised that Polish families are still here after the referendum. When a Polish family, whom I met there, had complained about harassment by an aggressive neighbour haranguing their children with shouts of "go back to Poland", a policeman arrived, visited the neighbour and had a cup of tea with her and then came back to the Polish family and said there was no case of harassment to answer and "if you don't like it you can always go back home." When children from that same family were being told by fellow pupils that they should go back to Poland, the teacher refused to act saying the children were only repeating the views of their parents. She refused to remonstrate with the children repeating these taunts.
When the agency worker herself, who is Polish, applied for an advertised managerial position she was told that this post was only for British citizens and not for foreigners.
A Polish born student whom I met had been refused a student loan because of her nationality.
This is not London, It is an area that is economically depressed, voted overwhelmingly for Brexit and has no concept of discrimination or of EU laws, which they feel does not apply to them. This deterioration in attitudes to EU citizens followed the referendum results and as far as local residents are concerned the UK has already left the EU.
Incidentally the agency worker Dorota Darnell is a real firebrand, fighting for her clients like a lioness. She is a great admirer of the3million and would be happy to assist us in any way she can, especially on any public events.
It would be useful to raise these examples when we meet DExEU and Euro MPs.

Friday, 3 November 2017

The only way to get a deal : guarantee EU citizens' rights

Tom Bradby described the limited options facing Leave and Remain politicians (The clock's ticking ES 30/10/2017) as a possible breakdown of negotiations with no deal looms ever closer. Yet one option does remain, a concession that even Brexiteers should buy, and one which could break the ice with the most intransigent body in the EU - the European Parliament - which has the final veto over any Withdrawal Agreement..
I suggest that, while the money issue will be subject to hard bargaining, on the issue of EU citizens' rights the UK government could go much further than their barren "settled status" project which leaves vulnerable EU citizens and their children subject to the UK's notorious Immigration rules as interpreted by whatever immigration officer takes up their case. In the last 2 years the Home Office has been softening up EU citizens with expulsions, instructions to the NHS to charge for services and threats to employers and landlords which makes them reluctant to offer jobs or homes to foreigners, whether EU or not. This has undermined Europe's faith in any unilateral UK promises on EU citizens.
The UK government should reverse that and make concrete what it has been promising all along, namely, a secure future for all 3.2 million EU citizens, with no attempt to divide their families,.and confirmation by registration of their current status either as life long permanent residents or, in the case of those employed less than 5 years, registration as temporary residents. Furthermore the UK government should guarantee this finite group protection under an international agreement recognized and maintained jointly by both the European Court of Justice and the UK Supreme Court. This same body would also protect the rights of UK citizens in Europe.
All along Leave campaigners have been repeating the mantra that all EU citizens currently here should be "safe" and allowed to stay. Two weeks ago Boris Johnson repeated this at a meeting with Polish community leaders. Only by such an international guarantee can this promise be kept. It would also have the added advantage of making the European Parliament keen to press for a special deal that would confirm this agreed new status for its citizens.
Yours faithfully,
Wiktor Moszczynski

Wednesday, 18 October 2017

New deal on EU citizens rights must be internationally guaranteed

With regard to Matthew d’Ancona’s article on latest Brexit negotiations (“Brussels will squeeze us till the pips squeak” ES 18th October 2017) there is still one initiative that can break the current impasse and the gloom that surrounds it. The Irish border is currently insoluble until issues of the UK’s main borders are resolved; the money game will rumble on to be played down eventually, EU style, to the wire when all the clocks are stopped to meet an agreed deadline suitable to the political needs of the EU Commission and the Council of Ministers.
Yet the most intransigent enemy of the current proposed UK offer is the European Parliament which could have the final veto on the text of any Withdrawal Agreement. But the EP’s main concern, expressed quite forcibly in the resolution passed 2 weeks ago, was the fate of EU citizens in this country. The current settled status option promoted so vigorously by the Home Office with community leaders and embassies is dead in the water unless it is guaranteed by international supervision recognized by the European Court of Justice and covers all EU citizens currently living here, along with their children and partners.
Even after Theresa May’s letter today scrapping Comprehensive Sickness Insurance and easing the passage of registration for those with permanent residence, the rights of large sections of the 3.2 million EU citizens will still not be guaranteed. Basically she is only removing barriers which she herself had put up. The hostile atmosphere built up quite deliberately by Home Office staff towards EU citizens in the last 2 years have convinced EU citizens here, UK citizens abroad and broadly public opinion in EU countries generally that there is no certain future for EU citizens after Brexit without an internationally approved guaranteed status for all of them. After all, this is a finite group of people who have legally chosen to live here, set up families and contribute massively to the British economy and to the country’s social and cultural fabric. The UK has obligations to them, moral and legal. There are UK precedents here. These families should be given the same “en bloc” comprehensive guarantee of permanent settlement here that was given earlier to groups to whom the UK had moral and legal obligations such as 250,000 Polish soldiers and their dependents in 1947 and 27,000 Ugandan Asians in 1972, but this should also now be guaranteed by a ring-fenced international agreement.
Not only will such an offer give assurance of permanence to those EU families living here for so many decades, it would also ensure a reciprocal positive response to the future of 1 million UK residents living in the EU and remove the embarrassment of watching so many vulnerable EU citizens being deported under haphazard Immigration Rules. In fact such an offer would be a signal to the EU that negotiations are being taken seriously by this government and that leave can be given now to start those future trade talks.
Theresa May has stressed that no EU citizens will be deported and that no EU families need to be separated by Brexit, but she is constantly being outflanked by her Foreign Secretary’s restated new red lines. Yet curiously Boris Johnson has always been keen to stress, during and after the EU referendum, that all EU citizens in this country should be safe, and he repeated that on Tuesday at the Polish-British Belvedere reception in the Foreign Office. Now he can give himself and his Prime Minister the free rein to announce an EU citizens’ rights resolution that would leap the current distrust and break the deadlock on the remaining negotiations. You can bargain over finances, over trade, over security, over agriculture, but not over peoples' lives.

Tuesday, 10 October 2017

Theresa May plays the wrong card on EU citizens’ rights

The latest outburst from Theresa May with regard to the EU is completely counterproductive. She is throwing away what she had gained from the limited but still genuine expressions of approval from EU leaders following her Florence speech. Furthermore, she has reinforced her negative image in Brussels following the earlier criticism of Theresa May’s government by the European Parliament on September 26th when it recommended that trade talks should not be initiated because “sufficient progress has not yet been made on citizens’ rights, Ireland and the Northern Ireland (sic), and the settlement of the United Kingdom’s financial obligations”. The UK Government realizes that it still has a long way to go on all three issues, and that with the current negotiating period now nearing the half time break, its present stubborn stance on all those issues could eventually lead to no agreement being reached at all. Most of the government knows full well that such an outcome would be a disaster. That is why her latest outburst about the possibility of no deal and its impact on EU and British citizens' rights is the voice of despair.
The European Parliament may not be directly involved in the negotiations, but it has the final veto on anything that is negotiated. The most emotional issue for Euro MPs is the question of citizens’ rights and the one on which they are least likely to compromise. Finance is a hard-headed issue which will eventually end up with some last minute stop-the-clock kind of bargaining down to the wire with which EU institutions are familiar every time a budget is discussed. The Irish border question is, frankly, a regional issue, albeit a crucial one, as it will reflect what happens on the UK’s main borders as well. Yet the question of EU citizens’ rights in the UK and UK citizens’ rights abroad appears to be the most intransigent, even though both sides pretend that they want the same thing – the preservation of EU citizens’ rights. Even if the EU negotiators may feel they could come to a compromise on this with the British government, they know that the European Parliament will not let them.
Both sides now agree that EU citizens and their families in this country should be allowed to stay with full working rights, access to the same pensions, benefits and health services as UK citizens, while those who have not yet worked off their full 5 years to achieve the right to stay should be given time to complete those years. What is more, public sentiment in the UK is not divided on this matter. Opinion polls show a distinct majority in favour of EU citizens retaining their rights as before. The right to vote in local elections and the European Health Insurance card are also likely to be retained provided talks are not broken off and both sides are working towards agreeing continuing mutual recognition of academic and professional qualifications. In her letter to “the3million group”, who have been putting the case for the 3.z million EU citizens in this country, Theresa May still maintains that she wants to “make sure that no one who has made their home in this country will have to leave, that families will be able to stay together, and that people can go on living their lives as before.”
Yet practice has belied the Prime Minister’s words, not only for the period after Brexit, but even now, while the UK is still supposedly in the EU and subject to its directives. The Home Office is already treating EU citizens as if they were subject only to UK Immigration rules, deporting vulnerable EU citizens, depriving EU children of British passports previously granted to them and authorizing health authorities to charge EU citizens for their services. Furthermore, as a show of UK sovereignty the Home Office has already announced that the current EU based permanent residence scheme is to be abolished and is advising community groups that all 3.2 million EU citizens should apply to register for a new form of “settled status”. EU citizens will now have to apply afresh in the space of 2 years for rights they currently already have, rather than having them merely confirmed, while existing rights to unite families and to return to the UK after a 2 year stay abroad will be abolished after Brexit. The British government is drawing a red line over leaving EU citizens under the protection of the European Court of Justice.
Yet the European Parliament has also drawn a red line over accepting a UK administered settled status which would leave EU citizens at the tender mercies of a regrettably compromised Home Office officialdom, bent on attaining the Government’s impossible target of a ceiling of 100,000 immigrants a year. We have an impasse.
Despite this, it is on EU citizens’ rights that the UK government could show a bold and truly generous initiative which would cut the administrative logjam, restore confidence of EU citizens in this country and UK citizens abroad about their future, and convince the EU negotiators and the EU parliament that it would be possible to bring forward the future trade talks which the UK desires. The government could recognize that the 3.2 million EU citizens is a large but a finite group in numbers whose contribution to the UK economy and to its social fabric is overwhelmingly positive and that they should all be allowed to retain their acquired rights including the equivalence of permanent residence or the continuation of the existing pathway to obtaining that status. A certified record of this new status should be offered to all of them proactively through the channels of local authorities who already have records on them as taxpayers, voters, entrepreneurs, pensioners, students or schoolchildren. It should be a lifetime status for all current residents and their children as individuals and they would also be eligible after a further year to apply for UK citizenship. As long as this status is similar to permanent residence it can be reciprocated easily by the EU with a similar status for UK citizens abroad. A separate early agreement on this status could be guaranteed by a mutually agreed international body to which all citizens could appeal. Nothing new there as a similar form of supervision is already being envisaged by the UK for future commercial disputes with EU countries. Nor is it a concession that would have negative political repercussions as most Leave campaigners have always argued that EU citizens currently here should be allowed to stay. No need therefore for a divided Cabinet to panic over a new “concession”.
There is also a precedent for such a blanket entry system granted to a finite group to whom the UK government has had obligations. The Labour government did this in 1947 with the Polish Resettlement Act when all 215,000 Polish soldiers and their civilian dependents in Western Europe were allowed to settle in the UK, regardless of their political or social status and regardless of whether some of them had previously been conscripted into the Wehrmacht. This was followed by a further similar decision over 86,000 displaced Europeans living in camps in Germany and Austria. The beneficiaries of these decisions were given full access to education, payment of war pensions, assistance with finding employment and the right eventually to apply to be British subjects. This decision was a clear-cut and honourable conclusion to those left stranded by Poland’s tragic fate after Yalta, and saved the UK government from responding to heart-breaking stories of Polish soldiers being forcibly repatriated to a Communist country. Admittedly the numbers were somewhat smaller but the principle was the same.
Similarly, such a blanket decision on 3.2 million EU citizens would also be the clear-cut and honourable conclusion to a vexed issue. It would also break down the logjam with the EU negotiations and open up the chance for the EU negotiations to cover the more promising issues of trade, financial services and the environment. Can Theresa May screw up the courage to do this in time for the sixth round of negotiations?

Wiktor Moszczynski 10/10/2017

Saturday, 23 September 2017

Comment on Theresa May speech in Florence

I see it as a step forward that Theresa May is recognizing the need for “new dispute resolution mechanisms” (presumably international and approved also by the ECJ) to resolve commercial disputes with the EU in post-Brexit Britain. It shows that “sovereignty” is not after all an absolute concept.

This mechanism should be extended also to the issue of EU citizens currently in this country and their British counterparts living in EU countries.

It was a welcome if somewhat cautious step forward in the right direction for her to say that UK courts resolving issues of EU citizens’ status in the UK would be “able to take into account the judgements of the European Court of Justice with a view to ensuring consistent interpretation” but surely it would be better to reassure the EU negotiators that its citizens could have the same international protection that she proposes for EU companies. In saying this I am not imputing the impartiality of British judges but I am aware that in the present purely British legal format of “settled status” most decisions on EU citizens would be made and enforced not by British judges but by Home Office officials, applying Immigration Rules, which are wholly inappropriate for EU citizens who have been residing here legally for many decades. Because of recent Home Office howlers on sending EU citizens deportation notices and using obsolete interpretations on comprehensive sickness insurance to refuse permanent residence, confidence in Home Office measures by EU countries is practically nil.

EU citizens here are seen by the EU as hostages being held by the British government in the current dispute and Theresa May should know that EU negotiators will remain intransigent on other issues, such as future trade talks, until those hostages are released by the removal of “settled status” and a simpler proactive speeded up registration system be introduced for the current permanent residence status. This way the rights of EU citizens here and UK citizens in Europe need not “diverge” as she feared. Also the mass hemorrhage of EU citizens uncertain of their future is already hurting British industry, agriculture and the NHS and it is in Britain's interest to encourage them to stay by resolving the uncertainties. An open-ended resolution to allow all of them to stay with the exception of those who are recognized by a British judge as an immediate threat to security in this country is the best solution. It was done before very successfully with the Polish Resettlement Act of 1947 which allowed 300,000 Polish soldiers and civilians, mostly without documents, to settle here at the end of the Second World War.

Incidentally, in her speech Mrs May referred only to the registration of EU citizens arriving after March 2019. Is she no longer pursuing the new registration for settled status of those already here?

Monday, 18 September 2017

Dislodge the Diplomatic Fatberg

I very much welcome the comments, printed in The Times, from the Immigration Minister Brandon Lewis in response to the EU citizens lobby organized on September 13th. He is obviously well intentioned in wanting EU citizens legally here to be able to stay and confirming the need for reciprocal treatment of UK citizens in the EU. He was recognizing the value of the lobby organized for MPs and Lords by the3million (representing the voice of EU citizens in this country), British in Europe (representing the voice of Bits on the continent) and the trade union Unison. More than 600 participated in the lobby which was met by more than 60 MPs including Sir Keir Starmer, Labour spokesman on Brexit and Lib-Dem leader Sir Vince Cable.
What Mr Lewis still needs to understand is that while the British offer of settled status may look good on paper it is based on Immigration Rules which are riddled with exceptions and provisos that his own officials in the Home Office will be using to limit the number of EU nationals currently in this country. After the Brexit cut off date EU citizens will have no recourse to any international body to defend their rights. In fact it means that all 3.2 million EU citizens will first be deprived of their current status of eligibility for permanent residence and will then have to reapply in the space of just 2 to 3 years for a new status, the so-called "settled status", which will be selective and not available to all of them.
Nobody believes the Home Office staff can do this fairly, or on time. The current uncertainty over their status is causing acute agony to EU citizens, especially for parents of young British-born children, some of whom have actually had their British passports taken away.
The UK government owes EU citizens, who came here legally and have contributed so much to the UK economy and to the social and cultural fabric of this country, a better deal than settled status, namely one which confirms their acquired rights, rather than dispenses them anew. It is better to simply recognize the right to stay of all 3.2 million citizens currently here, unless they are personally an immediate threat to the security of society.
There is a precedent for this. In 1947 all Polish soldiers and attendant civilians, whether in the UK or in Western European camps, were granted the right to stay in this country under the Polish Resettlement Act, with no questions asked. It protected them from deportation to a Communist Poland. It was a special moment which had arisen out of a sense of obligation to some 300,000 Poles uprooted by the UK breaking its alliance treaty obligations to defend Poland's independence.
Now again we have a special moment with the UK having an obligation to uprooted EU citizens, because of their sovereign decision to break their treaty of accession to the European Union. It means that with a simple administrative process in 2019 all these citizens' rights to stay in this country will be confirmed, as happened in 1947. Such a statement by the Prime Minister in Italy this week would also break the ice on the diplomatic fatberg currently blocking the negotiations and allow the EU negotiators to give a green light for discussing future trade relations, so desperately desired by the UK government negotiators.