Nothing is agreed until everything is lost? European citizens in Brexit negotiations

Formal negotiations on Britain’s withdrawal from the European Union are yet to begin. However, from the perspective of EU citizens living in the country, Brexit has already started. Recently published data shows that last year’s net immigration fell sharply since, right after the vote to leave, EU citizens started leaving Britain.

The outflow of EU citizens comes on the heels of a sustained effort to curtail their rights through administrative measures; since 2011 the Home Office has made it increasingly difficult to obtain permanent residence cards and at the same time accelerated enforced removals of those who are deemed to abuse free movement. And yet, although the undercurrent of isolationism had gently eroded the rights of EU citizens before the talks started, the European Council’s negotiations guidelines thwart any hopes for an early and binding agreement. Instead, the Council insists on the principle that nothing is agreed until everything is agreed. This carries a risk of letting down EU citizens again, after they were abandoned by the British government.

The process of eroding EU citizenship rights has been in the making since 2011, when the Home Office rewrote its immigration regulations relating to permanent residence cards. Though not obligatory for EU citizens, the card is a document that certifies a right to reside under the citizens’ rights directive. Changes introduced in 2011 require students and self-sufficient persons applying for the card to present evidence of holding comprehensive sickness insurance during the qualifying period of five years of residence in Britain. However, unlike other member states, Britain has no system of health insurance at all and its National Health Service is funded mainly from general taxation, which students and self-sufficient persons are also subject to. The European Commission deemed this change unlawful and launched an infringement procedure, but no enforcement followed. The dubious requirement remains in place and confines thousands of EU citizens to an administrative nightmare of being unable to prove their lawful residence in Britain.

The process of eroding EU citizenship rights has been in the making since 2011, when the Home Office rewrote its immigration regulations relating to permanent residence cards.

It is unclear how many applications for permanent residence cards are rejected on the basis of not having the sickness insurance. This is due to the fact that no detailed breakdown is publicly available and the Home Office continually fosters new ways of refusing claims to permanent residence under the citizens’ directive. For example, receiving jobseeker’s allowance is now deemed insufficient as evidence of actively seeking work for purposes of permanent residence, even though it is impossible to get this benefit without seeking work. The irony is not lost on EU citizens who lawfully claim social security payments from one government department only to be told that they are not lawfully resident by another.

Whatever the reasons, the national statistics show that the rejection rate for permanent residence cards rose drastically after Theresa May became Home Secretary in 2010. That year there were around 25,000 applications and around 17 percent were rejected. By 2012 the ratio of refused or invalid applications more than doubled to 45 percent, and it stood at around 30 percent in 2016. Following the EU referendum the number of applications rose more than fivefold and in year ending March 2017 the Home Office issued 108,590  documents certifying permanent residence. While the rejection rate has reduced somewhat, it still means tens of thousands of applications are refused and many EU citizens fear applying at all.

In the same period, there has been a significant increase in deportations of EU nationals. In year ending March 2017 there were 5,230 enforced returns in total, compared to 4,113 in 2016 and 3,242 in 2015. Overall, in the last year, deportations of EU citizens accounted for 41 percent of the total enforced returns from Britain, compared to 23 percent in 2015. To cap it all, the Independent reported that between the end of 2009 and 2015 the number of EU citizens locked up in immigration removal centres soared from 768 to 3,699, sometimes over offences as trivial as losing a national ID card or staging a party in a park. There is no way of knowing whether this steep rise is the result of a deliberate crackdown on EU citizens, but the trend is troubling.

It still means tens of thousands of applications are refused and many EU citizens fear applying at all.

The upshot is that, be it due to the rise in hate crime after the referendum, or the administrative measures deployed by the country’s government, Britain is quickly becoming an unwelcoming place for EU citizens. It is therefore no surprise that the newest Migration Statistics Quarterly Report released in May confirms that EU citizens have been leaving Britain since June last year. The net migration from EU member states has fallen by 51,000 since the end of 2015, and the majority of this drop was accounted by emigration in the aftermath of the referendum. It was mainly driven by an outflow of citizens returning to the eight countries that joined the EU in 2004 but the downward trend in net arrivals, while not statistically significant, also held for other member states.

All this points to the urgency of reaching an early agreement on the rights of EU citizens. British in Europe and the 3 million, two groups campaigning for the rights of citizens living in the EU and Britain respectively, have jointly called “for an early, legally binding separate agreement, preserving all citizens’ indivisible rights.” This is a sensible ask given the British government’s record to date, and its insistence that crashing out of the EU with no withdrawal agreement is better than getting a “bad deal.” Such an agreement would provide reassurance to all EU citizens who exercise their right to free movement. However, it is already too late for those who chose to leave Britain, rather than live with uncertainly.