Glyn Williams is a senior guy at the Home Office who was called to give evidence to the Commons’ Home Affairs Committee at the end of January. After the 85-page application form for a Permanent Residence Certificate was literally waved at him by Stuart McDonald MP (or as the Chairman coyly said ‘held aloft’), Mr Williams said
“I think as we move towards Brexit the Home Office will want to review all its systems. Processing permanent residence — they are not applications, but requests for certification, because we do not grant permanent residence; we certify that someone has it under the directive — has been a relatively niche area of activity for the Home Office, if I can put it that way. As we move towards Brexit, when it is likely to become a much bigger area of activity, we will want fully digital systems, automated links with HMRC, employer databases and so on, so that we can do these things in a more streamlined way.”
That’s all very well, but it seems that plenty of people will have uncertainty right now about their position, especially if they are readers of the Guardian as it seems to have cornered the market in headlines screaming about threats of deportation made to inoffensive university lecturers or their partners. While I might disagree with him on almost everything else, in yesterday’s debate in the Lords I did think that Lord Lawson had a point when he said that a lot of the kerfuffle about guaranteeing rights was virtue-signalling that would do nothing but raise unnecessary alarm.
As Mr Williams said, the Home Office merely certifies rights that people already have under the EU law that continues to bind the UK. But the febrile debate is such that lots of people who would never have thought about it before might wonder “Hmm … what are my rights actually. Might I be….DEPORTED???”.
Unfortunately, that’s not as easy as it should be to find out. There does not appear to exist simple official guidance addressed to each of the typical cases that are likely to make up the vast majority of the uncertain i.e. “You have been working in the UK”, “You have been in the UK as a partner/dependent of an EU national worker”, “You are the partner of a UK national” . While from a Civil Service point of view I know all the arguments for ‘putting all the guidance in one place’, in the present circumstances it seems very much to be getting in the way of people’s understanding. This inevitably means that anyone wanting to put safety first (and who wouldn’t?) is going to have to struggle through guidance that doesn’t answer the simple questions they need answered and fill in the 85-page application form just to find out from the Home Office what is their actual position. That assumes they’ve got a spare £65 to do so and (as a Guardian reader) are prepared to take the risk of a letter telling them to pack their bags and leave now.
Alternatively they might go through the form and guidance and come to the conclusion correctly that they haven’t acquired rights. This seems to have happened to ‘Marek’ reported in today’s Financial Times, who amassed ‘kilos’ of documentary evidence before starting on the form but …
Only midway through did he realise an EU citizen could be disqualified if they failed to purchase “comprehensive sickness insurance” while studying or unemployed during their time in the UK. In 2014, he was out of work for about six months, although he insists he did not claim benefits.
Now as Marek had worked in the UK for more than a year, he retains the status of a worker if he loses his job (rather than just chooses to stop working) and registers as a jobseeker. You don’t need comprehensive sickness insurance if you are an involuntarily unemployed worker registered as a jobseeker. Now it might well be that Marek didn’t realise he needed to register as a jobseeker. Perhaps he had built up enough savings to get by on for a while, and neither needed nor wanted to get tangled up with JobCentre Plus. If so, one would think that a good thing, but as he is no longer seen as having worker status but instead as a ‘self-sufficient’ person, EU law requires him to have comprehensive sickness insurance. Thus the perverse effect of the rules is that the state will pay you (at a rate of £73.10 JSA a week) not to have to take out comprehensive sickness insurance by registering as a jobseeker.
It is an unfortunate side-effect of free movement that people assume that everything is the same everywhere. If Marek were in Poland he wouldn’t have to take out comprehensive sickness insurance if he was looking for work without claiming unemployment benefit, nor would a UK citizen in the UK. Why would Marek think he would be treated differently from a Pole in Poland or from a Brit in the UK? It’s hard to say whose fault it is if people don’t realise the implications, especially when the outcomes are perverse. Why on earth would anyone think that the state would pay you to save you money??
However, it is just this kind of wrinkle in the system that Directive 2014/54/EU on ‘overcoming barriers to free movement’ can help with. I wrote about it last December, noting that this requires member states to provide bodies at a national level to provide support to EU migrant workers with enforcement of their rights and with easily accessible information. However, I pointed out that the UK had failed to implement the Directive by its transposition deadline of 21 May last year, and had failed to provide any explanation for its failure.
My latest FOI request to the Home Office asked them (in November) …
The response I received was this …
Perhaps I need hardly say that I did not receive a full response by the promised date, but instead on 27 January …
I do have to say that I think this lamentable in the circumstances. One might think some people who find themselves in Marek’s position would have a case for judicial review or claims for maladministration if they are caught out by a failure to understand the systems in relation to which the state is obliged to provide easily accessible information on their rights and bodies to support them with enforcement of these rights and has failed to do so.
The easily accessible information that does exist is very thin and nowhere near as clear as it could be. While the information on gov.uk below does say that you have a right to reside if you’re registered as a jobseeker, the link takes you to straight to a page about claiming JSA. It is of course a very common situation in the UK for people to be unemployed and job-seeking (i.e. available for work and looking for work) but not actually claiming out-of-work benefits. Indeed the Claimant Count is barely half the number of the officially unemployed. So what does it mean for Marek as an EEA national to be ‘registered as a jobseeker’? The page he’s been taken to doesn’t seem to say anything about that, and it certainly doesn’t say that to retain worker status under the Treaties you have to claim JSA. The statement that you need comprehensive medical insurance if you’re not looking for work doesn’t address the situation where you might be looking for work but not claiming JSA. So at the very least we’ve got either a lacuna or a degree of ambiguity here.
Furthermore, the Directive requires the easily accessible information to be available in appropriate languages and while gov.uk has a number of key pages in the Welsh language, I don’t think there are any in Polish or any other EU language. Pages that are already ambiguous in English might be particularly hard for a non-native English speaker to understand.
Anyway, the real point is that if you don’t have an easy way of knowing what your rights are or checking your own position in a world of alarming and alarmist reporting, that is a recipe for disaster. It’s all very well government saying that no one’s rights have changed, and a guy from the Home Office telling a Parliamentary Committee that it will want to “review all its systems” as we “move towards Brexit”, but if the existing systems are going to be hit by a wave of precautionary applications that isn’t going to be good for anyone. One would have thought that at the very least government could publish a series of simple crib-sheets to provide reassurance for typical cases and forestall the time and expense for everyone involved in making applications for certificates (and for government in processing them) that do not, of themselves, grant anyone any rights. And the problems will be compounded by cases like Marek’s where lack of understanding caused by lack of information leads to inappropriate and arguably unfair results.
If the Home Office does finally get around to implementing the Directive and designating a body to help EU migrants with the enforcement of their rights then that body might find itself rather busy. Perhaps that is itself a reason for the otherwise inexplicable delay …