Zero chance EU citizens in UK will keep rights post-Brexit

[secret.simon]

Zero chance EU citizens in UK will keep same rights post-Brexit, says expert.

Legal entitlements such as the right to work, reside, retire, vote in local elections and have access to welfare and health systems come automatically from Britain’s membership of the EU.

Only a limited number of rights, namely the right to own property and contractual rights, would be protected by international law, the peers were told.
...
The chair of the committee, Helena Kennedy, said the complexity of the so-called acquired rights was a concern to millions who wanted to plan their futures. Could any reassurances be given?

“Absolutely no,” Lowe replied. “I think there is zero chance [that the] … existing legal system affecting European nationals in this country will not change.”
...
Both Douglas-Scott and Lowe stressed that EU rights would fall away unless specifically protected under new British law.

Mind you that these are only the opinion of experts and as Michael Gove memorably put it, we have had enough of experts.

[Petaltop]

Zero chance EU citizens in UK will keep same rights post-Brexit, says expert.

Legal entitlements such as the right to work, reside, retire, vote in local elections and have access to welfare and health systems come automatically from Britain’s membership of the EU.

Only a limited number of rights, namely the right to own property and contractual rights, would be protected by international law, the peers were told.
...
The chair of the committee, Helena Kennedy, said the complexity of the so-called acquired rights was a concern to millions who wanted to plan their futures. Could any reassurances be given?

“Absolutely no,” Lowe replied. “I think there is zero chance [that the] … existing legal system affecting European nationals in this country will not change.”
...
Both Douglas-Scott and Lowe stressed that EU rights would fall away unless specifically protected under new British law.

Mind you that these are only the opinion of experts and as Michael Gove memorably put it, we have had enough of experts.

Pre the 23 June, the UK did say they were going to stop EU citizens from having UK benefits for 4 years as they want them to contribute to the UK first. It only seemed to be Poland's ex PM Tusk who didn't want that to happen.

Those on UK visas have to contribute for 5 years before they can access UK's welfare system and there will be no need for the UK to give EEA citizens any special treatment following Brexit, unless it is part of the negotiations.

[Richard W]

The cited article starts with:

The chances of EU citizens settled in Britain retaining all their rights to live, work and retire in the UK after Brexit have been rated as zero by legal experts.

This paragraph is pure scaremongering. Now, if they had said 'not yet settled' instead of 'settled', they'd have been talking sense.

Those on UK visas have to contribute for 5 years before they can access UK's welfare system ...

When did that come in? I thought ILR generally gave access to the welfare system on the same basis as British citizens. There is no requirement for those on a dependant's visa to contribute.

[secret.simon]

I can see where the barrister is coming from. And strictly legally speaking, he is likely correct.

When you speak of the EEA citizens settled in the UK, I presume that you mean that they have acquired PR. PR is a status granted by EU law (specifically a transposition of Directive 2004/38/EC). If EU law ceases to apply to the UK, PR as a status will evaporate overnight.

It is not improbable that, given the volume of EU legislation in force in the UK currently, the UK Parliament will pass a stand-still law, keeping EU legislation as of a specific date in force unless repealed. That will keep the EEA Regulations in force unless repealed or modified and hence that would preserve the PR status of people who have acquired it (though amendments could be made to require them to hold very expensive paperwork proving their rights).

Alternatively, the UK government could, by statutory instrument, convert PR status into ILR under the UK Immigration Rules. That will have its own headaches, including the requirement to hold documentary proof.

In the unlikely event that the two bodies do not enact any specific provisions, in a last resort, the UK courts could enforce retention of PR status on the basis of the doctrine of legitimate expectations, in a similar way to the HSMP judgment.

Of course, these days, expect the unexpected.

But the point the barrister was making was, retention of PR will not be automatic. No EU law, no status granted by such law. Permanent Residence was predicated on EU law applying in perpetuity. That is no longer the case. It will be a case of "Here today, gone tomorrow".

It will require a positive action of commission (by primary or secondary legislation or judicial decision) by UK authorities to retain PR status for those EU citizens who have attained it.

[Richard W]

Alternatively, the UK government could, by statutory instrument, convert PR status into ILR under the UK Immigration Rules. That will have its own headaches, including the requirement to hold documentary proof.

Any restrictive approach threatens a logistical problem. There is no requirement for ILR holders to have documentary evidence, beyond the practical need when changing job, privately rented accommodation, or re-entering the UK. ILR holders can't be stamped back in as though they were visitors - that cancels ILR. (The legal boundary between indefinite and limited leave to remain is amazingly fragile.)

In the unlikely event that the two bodies do not enact any specific provisions, in a last resort, the UK courts could enforce retention of PR status on the basis of the doctrine of legitimate expectations, in a similar way to the HSMP judgment.

Then there is not zero probability of their rights being retained!

But the point the barrister was making was, retention of PR will not be automatic. No EU law, no status granted by such law. Permanent Residence was predicated on EU law applying in perpetuity. That is no longer the case. It will be a case of "Here today, gone tomorrow".

But the EEA Regulations are not EU regulations; they are transpositions of EU directives into British law. They are therefore British law. Indeed, there are one or two obscure points where the EEA Regulations grant rights not granted by EU law.

The critical point is that the EEA Regulations talk of someone acquiring a right of permanent residence rather than having it. The regulations do not actually define the permanent right of residence, though they do state that it normally confers a right of readmission. If the EEA Regulations simply cease to apply, then someone with the right of permanent residence will be in a similar position to someone with merely a qualifying CTA entitlement, except that they will generally be 'in breach of the immigration laws', as happened in 2002 to a few Irish citizens who had entered the UK direct from Ireland. A holder of PR will have the right to remain in the UK and the right to work, but not necessarily any right to re-enter. It's not obvious to me how the courts would rule on such a right.

[rooibos]

I pointed this out back in May;

http://www.immigrationboards.com/eu-ref ... l#p1351393

[Richard W]

The view from the Home Office is that permanent residents cannot be stripped of their rights retrospectively. This was given to the Home Affairs select committee by the permanent secretary, Mark Sedwill, and was reported on the BBC website on 20 July 2016: Brexit: EU nationals with permanent residence 'can stay in UK'. Video footage is at http://www.parliament.uk/business/commi ... -evidence/ starting at 15:12:30, but Brexit only starts at 15:32:36 and the key topic starts at 15:37, with permanent residence at 15:52.

[secret.simon]

If you think of it, Citizens of the United Kingdom and Colonies were stripped of their rights retrospectively. In 1983, the right of people who were already CUKCs but who had no direct connection with the UK to live in the UK was effectively stripped by converting their CUKC into a British Overseas citizenship.

So, I am not entirely convinced by the Home Office's stance.

[Petaltop]

If you think of it, Citizens of the United Kingdom and Colonies were stripped of their rights retrospectively. In 1983, the right of people who were already CUKCs but who had no direct connection with the UK to live in the UK was effectively stripped by converting their CUKC into a British Overseas citizenship.

So, I am not entirely convinced by the Home Office's stance.

I recall the poster JAJ saying that the rights of Australians in the UK changed too in the past, as a reason for saying why the Irish in the UK should get British citizenship asap.

And these "rights" they changed for EEA citizens who were already in the UK, when they brought in a 6 month limit on jobseekers.
Benefits to be withdrawn from EEA jobseekers previously unaffected by the January 2014 changes
https://www.freemovement.org.uk/benefit ... 4-changes/

Existing EEA migrants at risk of destitution following the removal of Housing Benefit
https://www.freemovement.org.uk/existin ... g-benefit/

The "rights" EEA citizens may think they will keep after Brexit, may not be the the same rights the UK will still give them as forced to do under EU laws.

Cameron did say that immigtrtion and benefits were two side of the same coin and then he started to record the country of birth of the welfare claimants as that had never been recorded before. Before all the claimants country of birth were recorded, MAC was already reporting the billions of pounds each year cost to the welfare state for "foreign borns" just on the welfare payment Tax Credits alone. Then in the 2015, budget, the UK announced that the UK will be reducing it's benefits for children (Tax Credits) to below that of France, Germany and Sweden, in addition to the other welfare cuts they will make over the next 2 years.

Before the UK joined the EU, some social help was only given to British citizens who were born in the UK. What's to stop the UK reverting to that when EU laws are gone? Remember how the UK wants to prevent EEA migrants getting UK benefits for 4 years? And how against that change the Polish government were?