What are we to make of Theresa May’s “generous offer” to the 3m EU citizens who live in the UK, myself among them?
For the majority of us, but not everybody, the offer is insufficient, but good enough for now. It is full of holes. There will be no full legal certainty until an exit agreement is reached, ratified and implemented. But it is still useful because it calms the nerves of the majority of EU citizens in Britain.
What we know is that those who arrived before March 29 2017, when the Article 50 divorce procedure was triggered, will be able to remain. This includes the large group of people who are classified as self-sufficient — which means neither employed, nor self-employed. This was a big issue last year because this group was told it needed private health insurance to gain residency status. This is absurd because the UK has a taxpayer-funded healthcare system. The requirement has now been lifted.
The single most important issue for most EU residents is the actual application procedure for permanent residence. Previously, EU residents had to fill out an 85-page application form with lots of traps and unreasonable demands for supporting documentation. The UK will now introduce a category: “settled status”. The documentation required in support of the new application will be simpler. I would hope that the authorities give applicants the benefit of the doubt rather than search for gaps in their supporting documents. At the moment, applicants have to surrender their passport for up to six months until the application is processed. This is plainly ludicrous. The current process is designed to discourage people from making an application. The future process has to do the exact opposite.
Just do the maths. If it takes one civil servant to process eight applications in a day, it would take around 1,500 civil servants to get through 3m applications in one working year — and many more to handle difficult cases and appeals procedures. Simplicity is in the UK’s self-interest.
Many of those who will be granted settled status will probably want to apply for British citizenship because this would give them an ironclad guarantee against future discrimination. They can do so after six years of residence — either immediately or shortly after they qualify for settled status. For those who become citizens, the story ends here.
The others require protection of their rights. The UK’s official position is that the rights should be subject only to UK law. This position is unreasonable. If the current parliament decides to grant the rights, a future parliament can take them away. The EU wants the European Court of Justice to oversee these rights. This is also unreasonable since the whole point of Brexit is to regain judicial sovereignty. There can only be one solution, which is for an independent court or tribunal to act as a binding arbiter.
Immigration law is hugely complex. The UK government’s offer bypasses complex issues, which is why it is insufficient. It is directed at fairly average applicants, like those in steady full employment for five years or longer, and their families. But what is the status of non-EU spouses of EU citizens? What happens if an EU citizen faces a prison sentence? What happens if an EU citizen arrived in the UK five years ago, but temporarily left the country for a short period of time? Will the clock for settled status reset? There are many individual cases that do not fit the prescribed categories, and the negotiators will need to find answers for all of those.
What matters for EU residents most of all is whether the UK and the bloc reach a deal in the Article 50 exit talks. Contrary to popular perception, these have nothing to do with the softness or harshness of Brexit. The terms of the future relationship between the UK and the EU will be settled later. EU residents have an interest in a transitional period, preferably lasting several years. The longer the transition, the easier it will be for everybody to gain settled status.
EU citizens should, however, be careful not to allow themselves to be caught in the continuing tug of war in the UK over Brexit. There is a lot of wishful thinking around. There are still politicians and newspaper columnists who claim that the EU would in a blink give in on freedom of movement if only the UK decided to reverse Brexit. This is not going to happen. Many of those in Britain who portray themselves as pro-European are deeply ignorant of the EU and its procedures.
Chaos may suit some of the Remainers. But if you are an EU citizen, it is the last thing you need. Your interest lies in an orderly process. Be careful what you wish for.