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Earlier this month, a leaked document from the U.K. Home Office revealed the Conservative Government’s post-Brexit immigration policy. One key takeaway is that this policy will weaken reunion rights for E.U. nationals in Britain.
The leaked draft states that withdrawing from the Court of Justice of the European Union (CJEU) will mean that, for those who come to Britain after Brexit, European case law will no longer be binding. Specific cases are cited, which it claims have given “EU nationals rights to enter and remain in the UK which they would not otherwise have.” However, the cases cited (Zambrano, Metock, and Surinder Singh) carry slightly deeper meaning than that.
In Zambrano, the CJEU ruled that a Member State could not preclude entry to a non-E.U. national whose children are E.U. citizens and dependent on them. The important point was that to find otherwise would have been to “deny those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”
In Metock, the Citizens’ Rights Directive, which defines the right of free movement for E.U. citizens, was interpreted as follows: non-E.U. nationals could successfully apply for residence in a Member State where they had entered into a relationship with E.U. citizens (for example, marriage), without having previously lawfully resided within the E.U.. Similarly to Zambrano, the Court said that “if Union citizens were not allowed to lead a normal family life in the host Member State, the exercise of the freedoms they are guaranteed by [E.U. law] would be seriously obstructed.” Crucially, the Court also found that the Member States could still control migration by using express derogations (public policy, public security, and public health) laid down by the Citizens’ Rights Directive. Member States are also able to terminate or withdraw any right conferred by that directive in cases of abuse of rights or fraud.
Clearly, the purpose of these findings was not to open floodgates, but to make existing law meaningful. E.U. membership is relatively meaningless to a dependent child whose parents or carers cannot live in the E.U. themselves.
Finally, there’s the Surinder Singh loophole. This allows, for example, a British citizen who moves temporarily to another Member State and enters a relationship with a non-E.U. national to re-enter the country with them under E.U. freedom of movement laws. However, even before Brexit, a draft deal from the European Commission seemed aimed at closing this loophole. It agreed “to exclude, from the scope of free movement rights, third-country nationals who had no prior lawful residence in a member state before marrying a union citizen.” This shows that there have been plans made by the state to make life harder for E.U. national families for a while.
The Home Office also wants to narrow the definition of a family member. Officials allege that the E.U. definition of extended families have “virtually no limit on the distance of the relationship between the EU citizen and the extended family member.” The draft document wants to define family members as “direct family members,” which will include only partners, children under 18, and adult-dependent relatives. Such a rule is reminiscent of Trump’s Muslim ban across the pond, where the U.S. state also sought to impose strict definitions of who does and does not count as family. Steve Peers, professor of E.U. Law at Essex University, has said that the Home Office’s statement was “highly misleading and inflammatory.”
Inevitably, this leak has promoted strong political party reactions, but it comes as a further blow to E.U. nationals whose status in this country has been unclear since 23 June 2016. It is also a disturbing development in the context of increasing discrimination against E.U. nationals looking for work or buying goods and services. Equalities minister, Nick Gibbs, has told MPs that the office “is aware of, and is looking into” these reports.
‘The3Million’, a forum set up for E.U. nationals living in the U.K., has created a space for E.U. nationals to lobby for themselves, but the U.K. Government needs to do more to make E.U. nationals who have contributed to British society feel less ostracized.