More Rights

The government issued today a ‘Technical Note’ on the administrative procedures underpinning the UK’s proposals for a streamlined application system for EU citizens obtaining settled status. For those interested in security and stability for people living in the UK it’s largely good news.

In particular, those who have gone through the existing difficult and annoying process of getting a Permanent Residence Certificate can swap it relatively simply for a settled status document at a cut-price rate.

For people who don’t already have a certificate, at the moment the entire burden of proving you have been exercising your Treaty rights e.g. by working in the UK is on the applicant. This means in many cases having to construct a tiresome paper trail of evidence going back years to establish something that most of the time government will know already. It must be very welcome that the UK is now proposing to use the information it already has on you, in particular HMRC’s data about your record of employment, together will a clear statement of intent that the documentary burden will be minimised.

But I think most newsworthy of all is this, which rather oddly conflates a number of different things.

In order to streamline the application process, the UK intends to adopt a pragmatic approach to the application of the agreed conditions, for example, by not checking that comprehensive sickness insurance has been held by those who are not economically active or are studying, or applying a genuine and effective work test. We will also not seek to account for undocumented periods where we are satisfied that, overall, the residence requirements have been met, meaning people will not have to account for every trip that they have taken in and out of the UK.on paper

In deciding whether rights have been exercised ‘continuously’ for the required five years it is indeed pragmatic not to require evidence of every single trip that might have been taken abroad or evidence of where someone was for any undocumented period. A jobsworth approach to the latter, for example, would treat with suspicion a break between addresses when someone might have actually been sofa-surfing in friends’ houses and demand they prove that they weren’t in fact abroad. The question will simply be whether it appears, on balance, that they were exercising their legal rights to be in the UK over a sufficient period of time.

However, the questions of whether inactive people have held comprehensive sickness insurance (CSI) and whether ‘workers’ have been engaged in genuine and effective work are a completely different kettle of fish. These are fundamental conditions for exercising Treaty rights to be in the UK. So essentially it seems to be proposed that if you’ve been living in the UK without causing anyone any trouble then you will be treated as if you have been exercising treaty rights and residing lawfully in the UK even if as a matter of fact and law you haven’t.

Now I’m not knocking it, as regular readers will know from a previous blog I think it incongruous that a Slovenian coupling up with someone like me (who has paid plenty of tax over many years) must have CSI but if she couples up with a Polish guy who has only just started working in the UK (and might not even earn enough to pay any income tax) she doesn’t have to. And in the context of the negotiations, the practical effect is to grant new rights of residence in the UK to a fair few EU nationals who don’t at present have such rights, which one would hope might be seen as a gesture of goodwill. And there can’t be much for hardcore Brexiteers to grumble about it as it is primarily to the benefit of UK citizens who happen to have European partners. As I concluded in my previous blog

It’s not that the Slovenian lady in my example is seen as self-sufficient if her partner is the Polish guy, but not seen as self-sufficient if her partner is me. Her rights to be in the UK derive from being his family member, in which case she does not have to be self-sufficient at all. To give parity would mean introducing legislation to give EU nationals who are family members of UK citizens the same rights to reside as EU nationals who are family members of EU nationals in the UK — retrospectively if necessary.

Overlooking the lack of CSI in considering applications for residence will give parity on a case by case basis as settled status is granted to individuals (which will give them enforceable rights of residence) although prior to that status being granted there might be some doubt as to whether they will have an enforceable right to have it so granted. Although the Note makes soothing noises thus …

We will establish an administrative review mechanism to quickly resolve any caseworking errors. Beyond this, applicants will have recourse to an independent judicial authority, as now. This will mean that EU citizens and their direct family members will have recourse to a statutory right of appeal, allowing the UK courts to examine the legality of the UK authorities’ decision to refuse or revoke status, as well as the facts or circumstances on which the decision is based.

… it isn’t entirely clear to me at the moment on what basis the administrative overlooking of an EU legal requirement will be a matter of UK legality. Also I disapprove of the split infinitive in the first sentence! The note does say that the citizens’ rights chapter of the Withdrawal Agreement will be incorporated in UK law, so I suppose we shall have to wait and see whether and how the Withdrawal Agreement includes and codifies these administrative procedures.

Turning to those who might be affected by ‘genuine and effective work’ test there is a good explanation of what this is and what the case law says on Colin Yeo’s site here. Bearing in mind that you don’t have to do much to pass the test, and that it is unlikely that many people will be (or have been) scraping along for five years at the margin. While the hardcore might object to this in principle as new rights could well be given to some people they see as wastrel spongers, in practice the numbers are likely to be tiny, making this hardly worth getting worked up about…..

/ends