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.
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