Background                                                                               

 

Lord Oates’ proposed EEA Nationals[1] (Indefinite Leave to Remain) Bill would amend the 1971 Immigration Act to grant indefinite leave to remain to all EU nationals, family members and extended family members resident in the UK on the date of exiting the European Union.

JCWI strongly welcomes this Bill, which would ensure the UK Government keeps its promise to protect the rights of all EEA citizens resident in the UK before Brexit. Currently the government intends to criminalise EEA nationals who the EU Settlement Scheme fails to reach, or whose applications are refused. This Bill would prevent such widespread criminalisation, in the case of both a deal or no-deal Brexit, by providing a legal safety net for such EEA nationals and their family members.

Vulnerable EEA Nationals

At present, tens of thousands of the most vulnerable EEA nationals resident in the UK are at risk of becoming undocumented overnight and therefore liable to prosecution for overstaying or other immigration-related offences, following the EU Settlement Scheme cut-off point (June 31st 2021 or December 31st 2020 dependent on whether the UK leaves the EU with or without a deal). EU nationals who will not realise that they need to apply, will be unable to apply, or may be frightened of applying. There is no way to know for certain exactly who and how many people fall into this category. These people will simply lose their legal status on one of the arbitrary cliff-edge deadlines and be considered to be in the UK illegally, in many cases without being aware of it.[2]

JCWI and the Migration Observatory have produced reports identifying which EEA nationals are most at risk of failing to have their rights secured post-Brexit.[3] These include: children (particularly those in care), elderly people, disabled people, unpaid carers, informal workers, homeless people, those without passports or national ID cards, victims of domestic abuse and victims of trafficking.[4] Without documentation, EU nationals will become vulnerable to  ‘hostile environment' policies, denied access to public services and be placed at risk of deportation.  

This Bill would sit alongside the EU Settlement Scheme and would act as a protective legal backstop for vulnerable EEA nationals in the event that they have not made an application for pre-settled or settled status or have not been granted it. We have concerns about EEA nationals, especially the most vulnerable, being wrongly granted pre-settled status as opposed to settled status, and are further concerned that this is statistical information the Home Office is currently refusing to share.[5] It is inevitable that vulnerable EEA nationals will face the same barriers in switching from pre-settled to settled status once they have been resident for 5 years.[6]

JCWI supports the provisions within this Bill which extend further than the EU Settlement Scheme, by offering indefinite leave to remain to all EEA nationals regardless of the time they have been resident in the UK. The Bill is designed ‘to grant indefinite leave to remain in the United Kingdom to all EEA nationals, their family members and extended family members who are resident in the United Kingdom on the date of exit from the European Union’.[7] JCWI has previously called for the Government to introduce similar provisions in our briefing on the EU Settlement Scheme.[8]

Residency in the United Kingdom

Section 2 of the Bill, Residency in the United Kingdom, outlines how EEA nationals can demonstrate their residency in the UK.
[9] We are concerned that a significant number of EEA nationals will struggle to prove their residency through the methods listed in subsections (a) to (e), including informal workers, homeless EEA nationals and victims of domestic violence. Those who are already at greatest risk of falling through the cracks.[10] Whilst subsection (f) is indeed an improvement and a more flexible means towards demonstrating residency, we are concerned that this places responsibility on the Government to establish EEA nationals’ residency.

Recommendations:

1. JCWI recommends that the word ‘may’ is replaced with ‘must’ in subsection 2(1)(f): ‘compliant with such other criteria to demonstrate residency in the United Kingdom as may be established by the Secretary of State by regulations made by statutory instrument’.[11] This amendment would mandate that the Government establish comprehensive statutory regulations detailing alternative evidence and methods EEA nationals could use to demonstrate residency.

2. The Bill should be amended further with respect to Section 2 subsection (f)  It should mandate that the Government must have regard to the particular needs of groups with protected characteristics under the 2010 Equality Act, and to all other vulnerable or hard to reach groups in making regulations under this subsection.  It should further mandate that the Government consult with EEA nationals, NGOs and other expert groups in making such regulations, and must keep the regulations under periodic review in case new concerns arise, and amend them accordingly. This would ensure that the most vulnerable EEA nationals are not left undocumented, criminalised and vulnerable to the ‘hostile environment’ in post-Brexit Britain.

Indefinite Leave to Remain vs Settled Status


The draft Withdrawal Agreement sets out rights for EU nationals and their family members (and in consequence of other international agreements EEA nationals and their family members) which go further than those enshrined in indefinite leave to remain.

Recommendation: If the Withdrawal Agreement is signed, it will be necessary to amend the 1971 Immigration Act or other legislation to give EEA nationals those additional rights. Until then, this Bill is a good safeguard against no deal.

Derivative Rights of Residence

As this Bill’s definitions are largely drawn from The Immigration (European Economic Area) Regulations 2016, subsections (a) to (f) do not include EEA nationals with derivative rights of residence, such as Zambrano carers.

Recommendation: We ask that the Bill be expanded to ensure that the rights of these children and primary carers are protected.


[1] By EEA nationals we are referring to EEA nationals, their family members, extended family members, those with derived rights of residence and anyone else whose right to live in the UK is due to membership in the EU.

[2] JCWI, Guaranteeing Settled Status for EEA Nationals, February 2019, https://www.jcwi.org.uk/Handlers/Download.ashx?IDMF=a27b749a-2329-4b0d-82b4-934b6b0ce2b3, p.13

[3] JCWI, Guaranteeing Settled Status for EEA Nationals, February 2019, https://www.jcwi.org.uk/Handlers/Download.ashx?IDMF=a27b749a-2329-4b0d-82b4-934b6b0ce2b3

[4] The Migration Observatory, Unsettled Status? Which EU Citizens are at Risk of Failing to Secure their Rights after Brexit? https://migrationobservatory.ox.ac.uk/wp-content/uploads/2018/04/Report-Unsettled_Status_3.pdf, pp.2-3

[5] JCWI, Guaranteeing Settled Status, p.6

[6] The Guardian, Flawed Home Office App Stops EU Citizen Getting Settled Status, https://www.theguardian.com/politics/2019/jul/15/flawed-home-office-app-stops-eu-citizen-getting-settled-status

[7] EEA Nationals (Indefinite Leave to Remain) Bill,

[8] JCWI, Guaranteeing Settled Status, p.2.

[9] EEA Nationals (Indefinite Leave to Remain) Bill, section 2, https://publications.parliament.uk/pa/bills/lbill/2017-2019/0038/lbill_2017-20190038_en_2.htm#l1g2

[10] The Migration Observatory, Unsettled Status? pp.2-3

[11] EEA Nationals (Indefinite Leave to Remain) Bill, 2(1)(f)