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Brexit rights backlog and bat-back

THE BACKLOG of Settled Status applications by EU nationals living in UK remains alarming, as does the increasing proportion of those applications that are rejected. Meanwhile, an opinion issued by the EU's Advocate General means hopes for UK nationals living in the EU of enjoying equal status to EU nationals are diminishing.

EU flags at a pro-Europe rally; Photo: Matt Salusbury

EU flags at a pro-Europe rally in London in 2019

Settled Status woes

As of January 2022, there was still a backlog of just over 315,000 EU Settled Status applications by EU nationals living in the UK, including many of our members - still waiting to be processed. This will take an estimated two years to clear, given the current inadequate level of Home Office resources. The backlog was, to be fair, down from a peak of around 600,000 on 30 June last year - which was the deadline (in most cases) for Settled Status applications.

Those still waiting for their Settled Status applications to be processed are finding it difficult or impossible to start jobs, rent accommodation, open bank accounts or get bank loans. Landlords, bank managers and employers are confused about what they can allow EU nationals awaiting a Settled Status outcome, and fear prosecution if they get it wrong.

Some of those EU nationals in the UK waiting for their electronic paperwork to be processed are trying to upgrade from the less-stable "Pre-Settled Status", which is available to those who've been in the UK for less than five years. Full Settled Status would give them more rights in the UK. As of January 2022, some 41 per cent of applications granted were for Pre-Settled Status. Some 289,000 "concluded" Settled Status applications as of 31 December 2021 were for those who already had Pre-Settled Status and who went on to get full Settled Status.

Due to a design fault in the system, which should have been entirely predictable, electronic records showing applicants' Pre-Settled Status disappear from the system while they are applying for full Settled Status. This leading to those problems with landlords and so on.Despite numerous requests from Members of Parliament, there are still no physical cards or passport stamps to prove you have Settled Status - only a digital "share code".

While the backlog of Settled Status applicants is indeed being slowly cleared, the reported total of EU Settled Status applications that have been "processed" is for applications "concluded". This includes applications that were rejected or ruled to be invalid by the Home Office, or "were withdrawn or void". In many cases destitute applicants "withdrew" because they'd presumably had enough of trying to somehow support themselves during the long wait and given up.

The 3 Million, an advocacy group for EU nationals in the UK, reports in the figures for January 2022 they saw the highest ever proportion of Settled Status applications listed by the Home Office recorded as "refused", "withdrawn or void" or "invalid".

A total of 218,800 applications were "refused"; 115,700 were "withdrawn or void"; and another 112,000 were "invalid". The group's analysis showed that, of the 69,000 applications processed in December 2021 and January 2022, 23,400 were refused. That's just over a third – the biggest proportion yet. The proportion of Settled Status applications refused, rejected, withdrawn or void has been climbing sharply since August last year.

Kuba Jablonowski, a research fellow at the University of Exeter, analysed the quarterly figures for Settled Status applications released on 31 December. These showed that 90,860 applicants by that date had their applications turned down, applied again and were accepted the second time around. That's over 20 per cent of the total who were initially rejected, which seems like a very high proportion.

The 3 Million asks anybody having problems with Settled Status applications (including upgrades to Settled Status) to report to the group.

Delays in issuing Family Passes to allow EU national partners to join UK nationals returning to the UK remain even worse.

As the Freelance has noted before, the vast majority of NUJ members who are EU nationals have already obtained EU Settled Status. Settled Status is, though, not all that "settled" – it's not the same as a guarantee of the right to permanent residence. It is subject to periodic review and to tests such as continued residence in the UK and being "economically active".

Prolonged absences from the UK

As every freelance knows our income always fluctuates, while unexpected events like the still-current covid pandemic, Icelandic volcanic ash clouds or a family crisis may leave our colleagues stranded in their country of origin and unable to live in the UK for a while.

Following lobbying, the Home Office has retrospectively introduced some flexibility into the rules around how long-term absences from the UK due to coronavirus affect Settled Status. See the latest (November 2021) guidelines here.

The Freelance has also recently heard of several LFB members who have become British citizens since the 2016 EU referendum and obtained UK nationality, while retaining their EU Member State citizenship. We congratulate these colleagues for their persistence and calm in the face of Home Office incompetence, bureaucracy and outrageously high fees for naturalisation.

No EU citizens’ rights post-Brexit, probably

A recent development in the EU is not good news for our UK national colleagues in EU Member States. "EP", a British national living in France, took a case to the Court of Justice of the European Union (CJEU) objecting to her loss of electoral rights, which derive from EU citizenship. An Opinion handed down by the Court's Advocate-General Michael Collins in late February recommends that she does lose voting rights.

This expert legal opinion states that UK nationals have not obtained any enduring benefits of EU citizenship or citizens' rights while still living in the EU, just by virtue of once having been EU citizens. It holds that in EU law these UK nationals cannot therefore continue to maintain or to claim these benefits of former EU citizenship. So they have not been unlawfully deprived by the EU or any of its Member States of any benefits (rights) following Brexit, the result of what the Advocate General described as a "the sovereign decision of the UK to withdraw from the European Union."

The Advocate General ruled that EU citizens enjoy the benefits of EU citizenship within the EU only because they are citizens of a current EU Member State. In the event that their Member State leaves the EU (an eventuality no one anticipated when the constitution of the EU was being developed), they legally lose these benefits as well. Basically, to enjoy the benefits of EU citizenship, someone still has to be a national of an EU Member State, whatever EU citizenship they may have enjoyed in the past.

The opinion was issued in response to a case at the European Court brought by a British woman who was struck off the electoral register of the settlement of Thoux, in the departement of Gers in western France, for the 2020 elections held during the transition period following Brexit. The woman was also barred from standing in the local council election. She appealed the decision, but the Mayor of Thoux (population 213 at the last census) refused to restore her to the register, hence the case.

The Court usually - but not always - follows the Opinions of its Advocates-General in its decisions.

This is the latest in a series of legal actions brought on behalf of UK nationals in various EU Member States who lost their right to vote or stand for election. Some had lost their seats on local councils. See here for a case brought in the Netherlands by the late Guy Thornton, formerly of NUJ Netherlands Branch, and others. All these actions have so far failed.

The latest case in France was exceptional in that the plaintiff, although she'd lived in France since 1984, had reportedly not sought to obtain the French citizenship for which she is eligible, as she said she still felt bound by the oath she had taken to serve Her Majesty Queen Elizabeth I (and presumably her heirs and successors) on becoming a UK civil servant. Most UK nationals facing the loss of the right to vote or stand in elections would be eligible for naturalisation or at least permanent residence, with at least some voting rights, by now.

Again, the Advocate General's rôle is to provide independent legal advice before a judgment. The Court is expected to make a final judgment in June in the still ongoing case in case of the UK national struck off the electoral roll in Thoux.

The result could have negative consequences for our UK national freelances who are based in an EU Member State. Some have already been told they can't invoice for "cross-border" work. That is, they may not have the right to do work that is billable in a different EU Member State to the one in which they have permanent residency - depending on the Brexit packages agreed by the individual EU countries.

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See also advice for NUJ members based in the EU on how they can pay monthly contributions (subscriptions or "subs") to the NUJ's euro bank account.