Polish Londoner

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



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.

Wednesday, 13 September 2017

EU citizens in UK like cancer patients

Dzien dobry, London.
Today I’m addressing you on behalf of more than 1 million Polish citizens left stranded here by the disastrous Brexit referendum and its equally shocking aftermath.
The Polish presence here and that of other EU citizens was both a symbol of the UK’s economic success story and an important contributor to that success. EU citizens contribute on balance £12.1bln annually to the exchequer. The Polish diaspora in the UK has contributed also to the economic prosperity and the social and cultural fabric of their local community, with their commercial enterprises, their food shops, their “pączki” (doughnuts), places of worship and their motivated workers, who were also consumers, concert goers, sports fans, students and school children.
In turn, Polish citizens too saw the UK as their new home. They have settled with their families. On average 22,000 children of Polish mothers are born here every year and there are currently 187,000 Polish children in this country below the age of 14, the overwhelming majority of whom saw their future in this country. Well you can imagine the devastating effect of the referendum on those children, when they came into school that Friday morning, traumatized by their shell-shocked parents, only to be asked by their schoolmates, “So when are you going back to Poland”.
Leave campaigners had assured EU citizens that they will not have to leave and their acquired rights in this country will be affirmed. Yet the government has failed to give a formal guarantee of their stay, and when the EU negotiators put forward concrete proposals as to how permanent residence status could be extended after Brexit, the UK government counter-proposed with something called “settled Status”.
I can think of nothing more unsettling than settled status. Superficially it promises the right to stay permanently, but It actually begins with abolishing permanent residence status completely on the cut-off date so that everyone of the 3.2 million EU citizens must reapply again in the space of 2 or 3 years to obtain their new status. Immigration rules will not grant the new status out of hand, but will have so many provisos, about time of stay, past history, maternity rights, levels of income, uniting families. Also, any appeals will not have the protection from EU legislation. We have seen the early impact with Poles and other residents already receiving illegal notices of deportations while Polish children born here who had already obtained British passports are having them taken away.
Currently Polish and other EU citizens, including their children, sit in an alternative world, like cancer patients, who outwardly appear to live the same life as those around them but are faced with growing and stressful uncertainty about their own future and their families’ future in this country. Should they still register their children for school, should they buy a house, should they wind up their business, should they invest back in their original homeland? They are stuck in the country they once loved and admired, between the prejudices and taunts in the street or in the pages of the “Daily Mail” on the one side and the bureaucratic negativity of the Home Office on the other.
This nightmare existence of EU citizens must end now and the UK government must agree a new deal with the EU in the October round of negotiations which will end the stress and the uncertainty.

Wiktor Moszczynski Author of “Hello I’m Your Polish Neighbour”
Speech at the3million rally 13th September 2017 - Trafalgar Square, London

Saturday, 9 September 2017

EU citizens have all moved ….. to Limboland

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Dzien dobry, London.
Today I’m addressing you on behalf of more than 1 million Polish citizens left stranded here by the disastrous Brexit referendum and its equally shocking aftermath.
Of course, we are only part, admittedly the largest part of the many cohorts of EU citizens left stranded here by that man-made catastrophe, which has undermined Britain’s currency and thrown the UK’s political, economic and cultural future into chaos.
The Polish presence here and that of other EU citizens was both a symbol of the UK’s economic success story and an important contributor to that success. Treasury statistics show that in the tax year 2013/2014 European Economic Area citizens have paid in £12.1bln more into the exchequer than they have drawn out. All these European communities, spread ethnically as well as geographically around the country, contributed also to the economic prosperity and the social and cultural fabric of the community, with their commercial enterprises, their food shops, their places of worship and their motivated workers, who were also concert goers, sports fans, students and school children.
In turn, they too saw the UK as their new home, even though most of them came here not expecting to stay, but more with a sense of adventures. Now they have settled with their families. On average 22,000 children of Polish mothers are born here every year, a sure sign of their optimism about their future in Britain, as well as a welcome counterbalance to the UK’s ageing population The ONS estimate for 2015 was 187,000 Polish children in this country below the age of 14, the overwhelming majority of whom saw themselves as citizens of this country. Well you can imagine the devastating effect of the referendum on those children, when they came into school that Friday morning, traumatized by their shell-shocked parents, only to be asked by their schoolmates, “So when are you going back to Poland”.
Well the Leave campaigners had assured EU citizens that they will not have to leave and their acquired rights in this country will be affirmed. Initially they trusted them, but the government while promising everything, has refused to give a formal guarantee of their stay, and when the EU negotiators put forward concrete proposals as to how permanent residence status could be extended after Brexit, they counter-proposed with something called “settled Status”.
I can think of nothing more unsettling than settled status. Superficially it promises the right to stay permanently, but It begins with the very negative decision about abolishing permanent residence status completely on the cut-off date so that everyone of the 3.2 million EU citizens must reapply again in the space of 2 or 3 years to obtain their new status. Even now with permanent residence applications there are so many provisos, about time of stay, past history, maternity rights, levels of income, uniting families. If this were to be applied to a settled status then as a promise it would be almost worthless, especially as these provisos are to be governed by that well known caring magnanimous institution called the Home Office. This is the institution that has 15 miles of shelved paperwork waiting to be investigated and where current PR applications would take more than 10 years to resolve. Also, any appeals will be governed by new UK immigration laws without any protection from EU legislation. We have seen the impact with Poles and other residents already receiving illegal notices of deportations while Polish children born here who had already obtained British passports are having them taken away.
If you are British citizens, you may not have noticed this yet but Polish citizens have already moved. They no longer live in the United Kingdom. They now live in Limboland, unsure of their future, or the future of their families and their jobs. They did not cross any borders, the borders crossed them and they sit alongside you on the London tube or at work but with anxieties and priorities of which you are not even aware, alienated from the security of being a citizen of this country. They are stuck between the prejudices and taunts of xenophobic bullies in the street or in the pages of the “Daily Mail” on the one side and the bureaucratic negativity of the Home Office on the other. And this was a country they had loved previously for its seeming freedom, resilience, tolerance, entrepreneurial possibilities and sense of security. Not surprising then that one EU citizen recently wrote “A bit of me is dying here….”
This nightmare existence of EU citizens must end, which is why the3million and other organizations are holding a mass lobby here on Wednesday of Parliament and holding a further rally on behalf of EU citizens at Trafalgar Square at 6pm. Either the UK government negotiates a proper safe settlement of EU citizens’ rights, or better still it calls a halt to the whole Brexit process and calls for a new referendum based on the sheer revealed impracticality and injustice of leaving the EU.
Thank you for coming and for listening.


Wiktor Moszczynski Author of “Hello I’m Your Polish Neighbour”
Speech at People March against Brexit 9th September 2017 - Parliament Square, London


Sunday, 3 September 2017

Against a Settled Status

This is a translation of my current column in Polish on "Settled Status"


The recent statement by the Federation of Poles in Gt Britain and the Polish Social and Cultural Association (POSK) on the rights of EU citizens (including Poles) in the United Kingdom is already a testament to the looming decisive battle over these rights. On the one hand, we have a disciplined EU delegation, headed by former French Foreign Minister, Michel Barnier, representing 27 EU states, but effectively executing the decisions of the well-coordinated central authority of the European Union - the Council of Ministers, the Commission and the European Parliament. And on the other hand, we have a wavering British delegation, headed by DExEU minister David Davis, representing a government which changes its mind every week on its stance on leaving the EU.
Both sides have set a goal until the end of October this year to find a common agreement on the rights of EU and UK citizens, a financial settlement and the future nature of the Irish border. The aim of the EU is to settle these matters first, before tackling issues more precious to the UK side such as future trade relations, the future of the single market, or co-operation in the field of science, and the British side has reluctantly had to accept this. The framework of these remaining issues would have to be negotiated in the remaining 20 months in order to finally negotiate and legally agree on a final Withdrawal Agreement by March 2019. So, If they cannot keep up with the timetable for this first phase of negotiations by October this year, there may not be the time and even the willpower to negotiate a final deal by 2019.
It was at this crucial moment in the eve of battle that the Presidents of the Federation and POSK issued their press release. In their joint statement, the Polish community leaders pointed to the need for a speedy deal to safeguard the confidence of EU citizens about their future in the country. They also recalled that the British had a precedent for making a generous gesture when in 1947 they decided to allow Polish refugees a permanent stay in the UK under the Polish Resettlement Act. But our chairmen opted to maintain neutrality with both sides of the negotiations, counting on their good will.
Unfortunately, this good will has not yet materialized, although there is already agreement on a few issues related to citizens, such as the future of the European Health Insurance Card. But the main breakthrough on citizenship is not yet visible. Polish wishes about retaining full acquired rights may eventually be fulfilled, either through a good compromise, which has not yet been revealed, or by the surrender of one of the sides. But which one?
Let us examine what their main differences are. The European side believes that, despite the Brexit referendum decision, the full rights of EU citizens should be preserved in full and guaranteed by the European Court of Justice. Consequently, the status of permanent residence would be maintained which gives EU citizens similar rights to UK citizens, including the right of residence, employment without discrimination, access to health care and social security benefits. This right is to be granted to all those who have come here or are yet to come, including their immediate family, before the final date of leaving the EU, including those who have not yet completed their statutory five-year residency requirements as they will be granted the chance to complete those five years while continuing to work in this country. This is undoubtedly the best offer for us Poles. But it could be improved further by ensuring these rights to EU citizens and their children are for life, that EU citizens can be united with their families even after the Brexit cut off date and that the final agreement on the rights of EU and UK citizens can be sealed by an international treaty between Britain and the EU countries before the final talks on other aspects of exit are concluded. The last requirement may seem eccentric but it is this ring-fencing of an early agreement which guarantees its survival should the remaining talks eventually fail to keep to their deadline and there is no final Withdrawal Agreement.
But the British side has a completely different offer. It proclaims that its proposal matches the same guarantees as those made by the EU, but at its base it lacks conviction. It wants to liquidate the legal status of the EU based permanent residence, and replace it with something called "settled status", which can only by guaranteed by UK law and answerable to a British judiciary, outside the jurisdiction of the European Court. At present, this proposal is unacceptable for EU negotiators on the basis that it is not a sufficient guarantee for the rights of EU citizens present here. It is also unacceptable for organizations like "the3million" representing the voice of almost three and half a million EU citizens or "British in Europe", representing at least 1 million British citizens in Spain, France and other EU countries. It should also be unacceptable to Poles in the UK.
Why is the "settled status" proposal so damaging?
First of all, because it takes away the current legal status of Polish and other EU citizens from the A8 countries here since 2004, as well as for citizens from Western and Southern Europe, who have spent 30 odd years here or more. All their material, spiritual and cultural achievements and their legally acquired rights during many years of hard struggle to build a new home here in Britain would be set at nought. The new Polish mini-homeland in the UK set up by Polish businesses and Polish families would be dismantled and those who have obtained the hard-won permanent residency status, as well as the subsequent possibility of UK citizenship, would have to begin all over again, except that this will no longer be a confirmation of an existing status, but an application for a new status. The old permanent residency should have been automatic under EU law. Despite that for many Poles it was finally reachable only after a hefty fee and after completing an 82-page questionnaire and a half-year wait. For others, legally resident and legally employed here, obtaining residency had become an insurmountable barrier and now a cause for particular stress in the present stage of uncertainty. Suddenly, for hundreds of thousands of Polish families, even this hard-won status of permanent residence is now being questioned. Poles are feeling the ground collapsing under their feet.
Secondly, the new status is based on UK legislation and, in particular, on immigration law. Every Polish or English lawyer will confirm that there is no more Byzantine labyrinth of administrative regulations and legal quirks than the Home Office manual based on a specific interpretation of UK legislation. No such official decision by the Border Agency employee needs to be justified to the victim of a decision or to a third party. Suffice it to say that the clerk, submerged by a sea of applications and needing to demonstrate appropriate professional zeal, will find some shortcomings in the documentation or even harbour just a suspicion that not all in an application is correct, and so is still able to refuse an application. Even if his or her decision explicitly breaks official regulations, it is difficult to prove it. An official does not have to explain anything, even when the media intervenes, or the MP, or even a minister. Sometimes, as we have seen with the case of more than one hundred illegal letters sent to EU citizens demanding an immediate departure, even they themselves have admitted to mistakes albeit under pressure from the press. But despite the protests and interventions of consuls and advice centres, a number of people have actually been expelled from the UK despite the right of residence, because they were sick, or temporarily homeless or had a former conviction. Sure, many Poles might shrug their shoulders at this, but these expulsions were a contravention of EU Directive 2004/38 / EC, art. 27, which explains under which conditions one EU country may expel a citizen of another country, only if the suspect is individually a clear and present danger to society. At least until March 2019, EU law still applies here. The Home Office breaks this law knowingly so that ministers can have some kind of immigrant meat to feed to rabid "Daily Mail" readers. There is a British proverb - "the thin end of the wedge". If officials are doing this now when they are still bound by EU conventions then how will they behave in post-Brexit Britain without these restrictions?
Thirdly, if the British were finally to achieve a recognition for "settled status" in the negotiations, and would have acquired the 3 years transitional period which they are requesting in order to complete the transformation of the country into a new post-Brexit order, they would have to register and issue ID cards or similar certificates to more than 3 million EU citizens over the 3 or 4 years period. Even with the help of local governments and their records, which I have urged on Home Office officials, I still think that they would not be able to carry out this task, or to complete it fairly. Currently they are already bogged down by the number of applications from several thousands of residents just seeking to complete permanent residence applications. If they are left in charge of handling applications for a new status then I fear the list of expelled Poles and other EU citizens, along with their UK born children, would be even longer, despite the PM's assertion that "no one is to be expelled".
The sole justification for “settled status” lies in the fact that it appears to confirm the new sovereignty of the United Kingdom after Brexit and the exclusion of the powers of the European Court of Justice in this country. There is a high administrative price to pay, however, to satisfy such a gesture.
The only hope lies in obtaining an agreement on the introduction of another court of appeal recognized by the British Supreme Court and the European Court, which would allow for the further survival of the permanent residence status, but with an accelerated approval procedure.

September 13 is the next opportunity for mass lobbying by EU citizens and their friends to convince newly elected MPs to require their own government to propose a more fair and efficient system for registering EU citizens after Brexit. Poles should also be there demanding an immediate end to the uncertainty and a prompt agreement of the framework for a new status confirming the existing rights of EU citizens legally residing here, while the proposal for a "settled status" should be ditched.
Wiktor Moszczyński 2 September 2017
I attach a link for people wanting to register their participation in the parliamentary mass lobby on 13 September: https://www.eventbrite.co.uk/e/mass-lobby-for-rights-of-eu-citizens-in -the-uk-british-citizens-in-the-eu-tickets-35863169706.

Tuesday, 29 August 2017

Deportation of EU citizens

Question for Ms Nicola Smith at the Home Office


Dear Nicola,
Thank you for offering so readily to respond to my concerns regarding the deportation of vulnerable EU citizens over the last 2 years when I raised the matter at the joint meeting of Home Office and DExEU officials with representatives of the3milion and British in Europe on August 22nd.

At present, advice centres dealing with Polish and other EU citizens from the A8 group, including several consulates, are recording with growing dismay an increasing number of actual deportations and threats of deportations in the last 2 years among their citizens and clients. These incidents are also being viewed with considerable alarm by citizens from those same countries wondering if these deportations may be the thin end of the wedge for wider deportations that may follow after March 2019. Most concerned are those who have failed to obtain permanent residence for whatever reason or who are dismayed by current UK proposals to make permanent residence obsolete and replace it with settled status.

Examples of deportations include two categories of EU citizens
1/ those with no fixed abode or who are sleeping rough, and
2/ those with past criminal records or who face prosecution for new offences.

The first category is being pursued under the 1824 Vagrancy Act or face charges from Public Spaces Protection orders. These deportations are being carried out contrary to the rights outlined in EU Directive 2004/38/EC, even though the UK remains subject to EU directives and legislation at least until March 2019. Under this Directive new EU arrivals should seek to either support themselves or find work after the the first 3 months and could face deportation if after those 3 months they have failed to look for work or become a burden on the state by drawing solely on the resources of social services. However, the majority of those deported or facing deportation now are not new arrivals at all but long-term residents. They have included rough sleepers who are working but on low wages, self-employed looking for work, divorced partners, people who worked but have lost jobs due to alcohol abuse, etc. Some have drawn no benefits from the state at all. One example was a person found simply standing next to a sleeping bag. These expulsions have increased recently as the Home Office has acquired registers of the homeless and maps of areas they frequent from homeless charities and from local authorities. These EU citizens have the right to stay, either for the reasons cited above or because the UK has tolerated their presence over many years and they have de facto acquired rights unchallenged until recently by any legal institution in the UK. Some homeless people may of course welcome an opportunity to return to their own country but all the cases in question were involuntary deportations.

The second category are those who have had criminal records in the past, whether in the UK or in the country of origin, and following their conviction or court appearance are sent notice of a requirement to leave the country. This too is a transgression of EU Directive 2004/38/EC, Article 27, which maintains that restrictions on freedom of movement should be “proportional” to the actual threat to public security and the individual concerned represents “a genuine present and sufficiently serious threat” to the country. It is also a transgression of UK Border Agency Policy Notice EOPN01/2013 which interprets the above EU Directive to mean that both “minor offences” and “economic reasons” could not be considered justification for deportation. The same Border Agency Policy Notice also states that past criminal convictions in themselves do not justify expulsions.

As worrying as the issue of deportations is the policy of some hospital trusts and other NHS bodies which issue invoices to EU citizens for their services and thus selectively flout the Home Office current guideline which state that all EU citizens living in the UK or needing emergency treatment for their services are entitled to free access to the NHS. After correspondence and outside agency interventions, these NHS charges are often withdrawn, but it causes enormous distress to individuals, often with a poor knowledge of English, who receive invoices for several thousand pounds after a difficult operation or after childbirth.

These actions by Home Office and NHS officials are a concern because they transform EU citizens in the UK who are homeless or with criminal records or who otherwise feel vulnerable and intimidated, into potential outlaws seeking to avoid all contact with the authorities and aid agencies., Yet these actions contradict the EU’s guidelines, and also the UK’s own guidelines, while the UK is still a member of the EU, We are not sure if these transgressions are by design or just due to "overzealous" enforcement, but either way they undermine trust in the UK's own legislation. The recent revelation about some 100 deportation letters sent out erroneously to EU citizens reinforces that concern. Furthermore, current Home Office expulsions have ominous implications for the future. Many EU citizens have resided in the UK legally unchallenged for decades, have set up families, bought property, paid taxes, received benefits, served on juries,travelled in and out of the UK at various intervals and have had no reason to apply for permanent residence. In the case of citizens of the A8 countries many have worked here legally although they never registered for the Worker Registrations Scheme between 2004 and 2011, as it was a legal requirement for being eligible for benefits, but not for their employment or residence rights.

In our view, unregistered but legally resident EU citizens and their families, including those who are currently homeless or have a criminal record, or those who have fallen ill and claimed benefits, have acquired “de facto” residence rights over the years and decades. Yet following recent administrative decisions, such as being rejected for permanent residence, or their UK-born children being denied the right to renew their UK passports, there is increased concern that their right of residence, and that of their families, could be made null and void after March 2019, especially if their acquired rights to live in the UK are no longer respected and protected now. The Prime Minister’s promise to the3million group that ”no one who has made their home in this country will have to leave, their families will be able to stay together, and that people can go on living their lives as before.” should be fully honoured in the forthcoming negotiations, as set out in our "Joint Response to the Second Round". It should be made clear that those words should apply to any long-term EU resident in this country, whether a successful entrepreneur, a diligent NHS worker, a school pupil or a victim of homelessness, long term illness or other adverse circumstances..

A further reassuring statement by the Home Secretary that the current deportations have ceased and that all EU citizens residing would be eligible for life-long protection of their status, mutually agreed by both sides in the negotiations this year, would not just avoid the administrative and legal burden of creating a new scheme with reduced rights for more than 3 million EU citizens with their families in time for Brexit day, but would also be an encouraging incentive for fearful EU citizens not to avoid or resist obtaining their declaratory certificate of continuing entitlement. It would also be seen as a genuine humane measure which would reaffirm the UK’s reputation for fairness. I should add that there is no danger that this measure would set a legal precedent for the future. This is a unique situation in the UK’s history when the popular referendum result of June 23rd, 2016 obliged the country to break with long established rules of residence for EU citizens after Brexit, but not for those who had come here in good faith before Brexit to live and to contribute to the economic, social and cultural wealth of the United Kingdom and who therefore needed to have their existing legal status and acquired or "de facto" rights protected for their lifetime and that of their children.

Wiktor Moszczynski 27/08/2017