We can imagine what proper guarantees to EU citizens would look like—and it is not like this

The answer is not just legal protections themselves but a cultural change inside government

November 01, 2019
Photo: Yui Mok/PA Wire/PA Images
Photo: Yui Mok/PA Wire/PA Images

The final hurdles Boris Johnson’s government had to overcome to clear the path to a pre-Christmas election were opposition amendments seeking to give EU citizens with “settled status” (as well as 16 and 17-year-olds) the right to vote. The symbolism will not have been lost on the more than three million EU citizens living in the UK who were not only disenfranchised in the EU referendum, but were also—quite disgracefully—treated as “bargaining chips” in the ensuing negotiations.

EU citizens will have listened intently as Jeremy Corbyn made the argument that “[w]e do recognise [EU citizens’] contribution to our society […] they have made their future in this country in our society, they should have a right to vote on their future as well.”

There was not a chance in the world the amendments would pass, of course. Nor should EU citizens have any illusions that their continued Brexit-generated predicament is going to be an election decider.

This does not detract from the fact that the rights of EU citizens remain one of the paramount issues that the new Withdrawal Agreement seeks to resolve and, simultaneously, a primary area of vulnerability in a no-deal Brexit scenario.

The next government should therefore prioritise the protection of these fundamental rights. The proposed creation of an Independent Monitoring Authority (IMA), which was one of the innovations of the Withdrawal Agreement Bill (WAB), can serve as a useful vehicle for achieving that.

Let us rewind a little here. Put yourself in the shoes of EU citizens in the UK (and UK citizens in the EU), experiencing the chaotic political rollercoaster since the referendum and living through the gut-wrenching “do or die, come what may,” rhetoric of the last few weeks. The government was determined to “get Brexit done,” regardless of cost. Citizens’ rights seemed an afterthought.

Despite some assurances that rights would be protected in a no-deal scenario, these were not worth very much: for example, there would be a shorter deadline for applications, and the introduction of a cut-off point for family members to join EU citizens with settled status. Most importantly, there would be a loss of external oversight, due first to the loss of the Independent Authority, which will have powers equivalent to those of the European Commission to monitor implementation of the citizens’ rights provisions in the Withdrawal Agreement, and second to UK courts no longer being able to make requests to the Court of Justice of the European Union for preliminary rulings, a power that the Withdrawal Agreement will keep in place for eight years after the end of the transition period.

As to UK citizens in the EU, the government’s no-deal “strategy” had simply been reduced to a declaration of understanding of the uncertainty this dispersed population would face, which came with the admission that “the UK [could not] act unilaterally to protect the rights of UK nationals in the EU.”

Then the UK suddenly agreed a new Brexit deal (the Withdrawal Agreement), and a Withdrawal Agreement Bill (WAB) would implement it in UK law. Citizens had nothing to fear, the government reassured us: the new deal, a “fantastic deal for all of the UK”—to quote a triumphant Johnson increasingly borrowing from Donald Trump’s (little) vocabulary of hyperbolic adjectives—would protect “the rights of more than three million EU citizens living in the UK and around one million UK nationals living in the EU […] ensur[ing] that they can continue contributing to their communities and living their lives broadly as they do now.”

Suppose we can ignore the implicit warning in the above, that EU citizens in the UK and UK citizens in the EU can, at best, expect to continue to live their lives “broadly” as they do now, or that we can bypass the question over untested and potentially fraught future scenarios, and let us simply ask: can these citizens have faith in the legal protections they have been offered?

Those with a formalist conception of law, who take law to exist in a socio-political and moral vacuum, might quickly answer the question in the affirmative, highlighting the (fictitious) linear character of the settled status process: a smooth, quite effortless transition, from EU citizens having the right to reside in the UK through EU law pre-exit day to having secured rights under the New Withdrawal Agreement and being able to continue their lives as they do now, in a post-grace period (as imagined in the government’s citizens’ rights WAB fact sheet).

Viewed through a socio-legal lens, however, taking into account the lived experiences of citizens affected, the law in action immediately appears to be miles apart from this idealistic view of life after Brexit. The settled status scheme was presented as an “oasis of calm and security” for EU citizens in the UK, but “there remain a number of serious and potentially intractable issues,” notes Roger Casale, founder of the citizens’ rights group New Europeans. Similarly, Amelia Gentleman’s recent analysis for Prospect, concluding that “[w]e will need to watch like hawks” to ensure that the Go Home Office and its “department of Windrush” do not grind down EU citizens, speaks volumes about the urgent need to put in place concrete mechanisms that will guarantee citizens’ rights in practice.

“There is [still the problem of] the vulnerable citizens­—200,000 of them who are in need of assistance,” explained Guy Verhofstadt in the European Parliament; “[t]here [are also] those who will miss the deadline, and there one of the members of the UK government has said, ‘oh, we’re going to do deportation.’”

There is also no clear physical way for EU citizens to prove their status. They can only confirm online through the Home Office online checking service. To access the service, you need the details of the identity document you used when you applied, your date of birth, access to the mobile number or email address you used when you applied and, finally, the code you were sent for logging in. Not quite user friendly, even for technology-savvy citizens.

The government must also give urgent consideration to reports relating to the erroneous awarding of “pre-settled status” (where the applicant should have been offered settled status), the inaccessibility—for certain groups of citizens—of the online application system, the ambiguity in the WAB relating to appeals against citizens’ rights decisions. I could go on.

Legal instruments can achieve little in practice without the political will to drive forward change. In the case of citizens’ rights, we need cultural change to undo the grievous harm inflicted so far and to prevent more damage in the future.

The setting up of an Independent Monitoring Authority (IMA), provided for in the WAB, might be an important step in this direction (provided it is indeed independent; commentators in the UK and the EU have already expressed concern). The IMA’s key functions will include monitoring and promoting the implementation of the citizens’ rights part of the Withdrawal Agreement, carrying out inquiries, investigating individual complaints and applying for judicial review. This is a good start, but there is still substantial scope to define the Authority’s general duty­—and shape its future ethos—with more ambition.

To take just one example, the provisions of the Equality Act 2006, on the general duty of the Equality and Human Rights Commission, provide a useful illustration of aiming for institutional change, not piecemeal reform and “business as usual.” The Commission was set up with the ambition (described in section 3 of the Act) to encourage and support societal change, allowing people to achieve their potential not limited by prejudice or discrimination, and ensuring respect for each individual’s human rights, offering them an equal opportunity to participate in society. These are foundational values that resonate with the need to safeguard EU citizens’ human rights, protect them from post-Brexit prejudice or discrimination, offer them an equal opportunity to participate in British society after withdrawal from the EU. We could almost copy and paste.

At a time when EU citizens in the UK are faced with the threat of deportation for simply failing to submit an application for settled status in a timely fashion, vague promises to protect their rights will ring hollow, even if they are written into legislation. Holistic change of institutional and cultural attitudes is required to, in Gentleman’s words, leave behind “the obstructive and unwelcoming bureaucratic culture” intrinsic to the “hostile environment.” The IMA has a big gap to fill, a long distance to cover. But do it right, and there might be hope.

The pioneering sociologist and cultural theorist Stuart Hall said of the (his) Windrush migrant generation, that they had all undertaken “a journey to an illusion” and experienced “a fraught transition.” He was writing years before the Windrush scandal had been unearthed, years before the shattering of the lives of those affected had been fully exposed. It is not difficult to think what he would have made of Windrush as we know it today. It is not difficult to apply his logic to EU citizens in the UK. The lesson of history must be learnt.

Dimitrios Giannoulopoulos, Inaugural Professor in Law, Goldsmiths University of London; founder and director of the Britain in Europe think tank