Humber immigration expert believes PM's EU proposals may be "unsound"

By Scunthorpe Telegraph | Posted: 27 Jun 2017

THE single remaining certainty in relation to the rights of the estimated 34,000 Europeans living in the Humber has been dealt a hammer blow, according to one of the region’s leading immigration law expert.

Frances Ledbury, who leads the immigration department at Pan-Humber law firm Pepperells, said Prime Minister Theresa May’s proposal document for safeguarding EU nationals’ rights undermines existing Permanent Residency, but that it is legally “unsound”. 

She said: “It is certainly a hammer blow; what we thought was the only certainty has now been made shrouded in uncertainty. But while it may be seen as a blow it will not be fatal as the proposals appear to be legally unsound.”

The Prime Minister published the Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU yesterday (Monday, June 26). The implications will affect the 34,000 people across the Humber, 22,000 of which are working.

Ms Ledbury said: “Within the document there are some positives to be taken, such as Irish citizens’ rights being protected under the Common Travel Area arrangements and the removal of the need for economically inactive citizens to have held comprehensive sickness insurance. But, while vast swathes of the document propose little change, there is a worrying contradiction."

One section states that 'EU citizens resident here will continue to enjoy the rights they have under the EU Treaties' until the UK leaves the EU. This is confirmed again later in the document with the assertion that until the UK withdraws from the EU, “EU law will continue to apply” and that “the rights EU citizens and their family members to live and work in the UK remains unchanged”.

The document then sets out what will happen post-Brexit: “…after we leave the EU, we will create new rights in law for qualifying EU citizens resident here before our exit.”

Ms Ledbury said: “This is not unexpected – basically, existing EU law will apply until we enact our own laws to replace it. A new application process will be a 'separate legal scheme, under UK law' but one which all-but mirrors the existing agreement – five years’ living and working and you’re secure. The new legal scheme will grant people 'settled status' rather than Permanent Residency (PR).

“Initially, these proposals appear to change little other than impose a similar yet separate bureaucracy. However, a contradiction appears. The document states that there is “no need” for EU citizens to apply now for EU documentation under the free movement rules to prove they are exercising Treaty rights or have current rights of permanent residence in order to secure their status post-exit.

“For those who have already obtained a certificate of their permanent residence, the Government says they will seek to make sure that the application process is as “streamlined as possible”.”

“This suggests PR won’t carry the guarantee it once did and those with PR will have to apply for “settled status”. This will concern a lot of people who already have PR, or are in the process of applying for it. But it shouldn’t.

“The proposals do away with any certainty and predictability, fundamental qualities of any legal system and guiding requirements for the rule of law; people need to know the rules so they can plan their lives accordingly. Retrospective changes do not sit alongside the principle of certainty in law and if there are any legal challenges to be had it will be here.

“For individuals and for those businesses who employ large numbers of EEA nationals things just got a bit more complicated, potentially. What is clear that nothing will be agreed until everything is agreed in relation to the UK’s eventual exit from the EU. This is just the start of a long negotiation."

In response to the outline, Josh Hardie, CBI deputy Director-General, said: “Business will welcome these proposals as an important first step. Protecting the rights of EU citizens here and UK citizens abroad is the right priority at the outset of the negotiations, and firms will look forward to an early resolution of this issue.

“Both sides need to provide reassurance for millions of employees, giving certainty for businesses and starting to build real momentum to the negotiations.

“Companies will also expect a low-cost, speedy and simple solution to be put in place for EU citizens to establish their right to settlement in the UK.”

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