Collateral Damage

Collateral Damage


by Eleanor Spaventa, Full Professor, Department of Legal Studies

In recent weeks the effects of Brexit on immigration patterns have come to the attention of the media: young Italian women being detained in immigration centers for believing they could still work as aux pairs; EU citizens wrongly denied entry when attending job interviews or returning from their home countries. The disruption caused in the UK from severe labor shortages especially in the hospitality and transport industries. UK artists being unable to perform in the EU because of the time and cost of complying with visa requirements. Those are just but a few examples of the new Brexit reality. Yet, as harsh as they are, those consequences are the natural (and predictable) outcome of the UK becoming a separate country. Perhaps more worrying however is the spillover effect of Brexit on those EU and UK citizens who had moved, often before the referendum, and built their lives in the UK/EU. Have their rights been sufficiently protected?

After all, one of the priorities restated by both the EU and the UK in the Brexit negotiation was the need to safeguard UK/EU citizens that, having already moved, were most at risk of being caught in the Brexit storm. The agreed aim was that of ensuring that those citizens would not become collateral damage of a complex political process and that they would continue living as before. Accordingly, the Withdrawal Agreement (also known as the separation agreement) seeks to reproduce the rights available under EU law. EU/UK citizens are allowed to continue residing in the UK/EU Member State of residence if two conditions are satisfied: they moved before the 31 December 2020; and they are economically active (employed / self-employed); economically independent (having sufficient resources and comprehensive health insurance); students with comprehensive health insurance; pensioners; or job seekers.

Once Brexit citizens satisfy these conditions, they are entitled to a range of rights, including the right to reside, the right not to be discriminated against on grounds of nationality, the right to work and so on. Moreover, their families are also protected, including third country national family members and future children.
All’s well that ends well, then? Unfortunately not, as there are many situations where the Brexit citizen might well end up with diminished rights. For instance, due to the Commission’s rigidity, UK citizens in the EU can no longer move to Member States other than that where they resided before the end of December 2020, regardless of the fact that when they moved they could not reasonably have expected that they would be locked-in a single country. This was a deliberate political choice, and a cruel one at that: the Commission considered that since the UK had excluded granting free movement rights to EU citizens, UK citizens already in the EU should be confined to their Member State of residence.

Moreover, affected citizens have been caught in a double spiral: that of having to prove their right to reside and that of having to do so in a very short time span (the final deadline being only 6 months after the end of the transition period). This double spiral then became a vortex when the pandemic hit, given the Covid-related reduction in domestic administrative capacity which provoked severe delays in bureaucratic processes. Furthermore, while Italy decided that British citizens can apply for their new status also after the deadline of 30 June 2020, other countries, like France and the UK, have taken a different approach. There, failure to apply within the deadline might deprive individuals of their right to reside and all other related rights for ever. In this way, EU/UK citizens go from being privileged immigrants to being unlawful third country migrants overnight. In the UK the situation has been further exacerbated by additional problems: from the sheer number of applications to be processed (more than 5 million) to the rigidity imposed by semi-automated systems.

Adding to that, many potential beneficiaries both on the continent and in the UK might struggle to produce the correct documentation – we know for instance that Italian citizens, who moved to the UK before it was even a member of the EU and are now retired, are having difficulties in producing the correct paperwork and that children in care risk losing residence rights because they rely for their applications on overstretched social services. And, even when processes work correctly, there are big losers – for instance those who quit work to look after children and/or elderly, who are not economically active and are unlikely to have health insurance; those working in the gig economy or in atypical on call contracts, who might struggle to persuade the administrative authorities that they are economically active; those who have lost their jobs because of the pandemic through no fault of their own; or those who moved to their Member State of origin during the pandemic, for instance to care for relatives, and were unable to return to the UK/EU before the end of 2020. In this respect, the regime adopted in the Withdrawal Agreement is far from satisfactory – even if just a small percentage of citizens are affected, the disruption to those who had built their lives in the EU/UK is both unfair and unwarranted. That the EU and UK could not even bring themselves to provide a transitory and exceptional regime to take into account the impact of the Covid pandemic calls into question the rhetoric about safeguarding the rights of those caught in the middle of one of the biggest political storms to have hit the EU and the UK in the post war era.

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