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Supporting EU citizens in the UK after Brexit

rhys-davies
Rhys DaviesGeneral counsel at the Independent Monitoring Authority

Rhys Davies, general counsel at the Independent Monitoring Authority, introduces and explains the function of the Independent Monitoring Authority for the Citizens’ Rights Agreements post-Brexit.

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When it finally happened, Brexit came somewhat quietly under the shadow of coronavirus. But 1 January 2021 marked a notable change, particularly for the millions of EU citizens who have made their homes in the UK.

The Independent Monitoring Authority (IMA) launched at 11pm on 31 December with a staff of 45, based in Swansea.

Our job, as set out in the EU-UK Withdrawal Agreement and EEA EFTA Separation Agreement, is to both monitor and promote the effective application and implementation of citizens’ rights by public authorities. These rights relate to:

  • residency
  • work
  • recognition of professional qualifications
  • social security
  • the right to equal treatment and non-discrimination in relation to these matters

We do this through engaging directly with citizens – asking them to tell us about their experiences through a complaints portal on our website, or by post.

We are also consulting widely with organisations, including public authorities, to identify and understand the issues faced by EU and EEA EFTA (Iceland, Liechtenstein and Norway) citizens living in the UK and Gibraltar.

The information we receive helps inform how we use our powers to launch inquiries into public authorities where there’s an issue. Any of the different governments across the UK and Gibraltar may also request an inquiry.

Complications

In principle, maintaining the rights of EU citizens after Brexit should be somewhat straightforward – individuals’ rights remain broadly the same if they were resident in the UK and Gibraltar before 1 January 2021.

But reality can, of course, be quite different.

Public authorities are not immune to making mistakes. This is particularly true now, with the new relationship that the UK and Gibraltar have with the EU, and the resulting complex legal consequences.

COVID-19

Simultaneously, the world has been in the grip of coronavirus which, amongst its many effects, is impacting public administration.

Charities and advocacy groups are already saying that the pandemic has caused complications for citizens applying under the EU Settlement Scheme. Some of these complications include:

  • the difficulty of securing documentation during lockdown
  • unexpected lengths of time out of the UK

Both of these issues also affect the application criteria.

How we can help

The withdrawal agreement protects citizens’ rights so that those EU citizens who have made the UK their home can be assured that they can do all the things they were able to do before the UK left the EU.

This means key rights around residency, work, professional qualifications and social security are all safeguarded.

Any public authority that is denying these rights is in breach of the withdrawal agreement and is therefore accountable to the IMA.

However, it is essential to make clear that unless citizens apply for pre-settled or settled status under the EU Settlement Scheme by 30 June 2021, their rights will not be protected.

So, if citizens have not yet made their application, it is extremely important for them to do so.

We’re scrutinising the scheme carefully as we approach the deadline and will continue to do after it has passed.

It is imperative that the application process is smooth, transparent and simple, and that decisions being made by the Home Office as part of that process are all in accordance with the withdrawal agreement.

Settlement scheme applications: identifying patterns of incorrect decisions

We’d like to hear of any issues faced by citizens in making applications.

For example, a citizen may have temporarily found themselves outside the UK at the end of the transition period and their application was rejected, even though their absence from the UK was temporary, and for a period less than the permitted six months.

If we identify such patterns of incorrect decisions, we can raise these with the Home Office to ensure that errors are identified and addressed, or to carry out an inquiry where issues cannot be resolved immediately.

The ‘grace period’

To give another example, the period until the deadline for applications to the scheme is referred to as the ‘grace period’. During the ‘grace period’, EU citizens residing in the UK and Gibraltar do not need to demonstrate settled or pre-settled status to enjoy their rights under the withdrawal agreement.

Any requirement before 30 June 2021 for an EU citizen to demonstrate pre-settled or settled status in seeking to exercise their rights, for example to enter the UK or secure employment, is contrary to the terms of the withdrawal agreement.

Misinterpreting the eligibility of EU citizens to council housing

There are many other issues that EU citizens could face in seeking to exercise their rights afforded under the withdrawal agreement.

A local authority may have misinterpreted the eligibility of EU citizens to council housing and removed all EU citizens from its waiting list for social housing. This would be a breach of the withdrawal agreement.

If we were to receive information about such instances, we could take action to raise the matter with the local authority concerned, to understand the application of its policies.

If we cannot resolve the issue through dialogue, we can:

  • use our powers to carry out an inquiry and make recommendations to the local authority, or
  • use our litigation powers to judicially review its policy

Infringement of rights by private entities

Of course, it’s not only public bodies that may be at fault of discrimination, unintentional or otherwise.

While the IMA does not have powers in relation to private entities, we still want to hear about instances where EU citizens are seeing their rights infringed.

This will help us build a picture of the experience of EU citizens.

It will raise any issues where EU citizens are not able to fully exercise their rights with the relevant public authorities responsible for implementing the withdrawal agreement.

How lawyers can help

There will be many EU citizens who are members of the legal profession in the UK who will fall within scope of the protections of the withdrawal agreement. We’d like to hear from you if you think your rights are being infringed.

The legal profession is also likely to engage with individuals who consider their rights are being infringed. If so, please direct them to us via our complaints portal.

While we can’t resolve individual issues, this information could form part of wider intelligence, and the individual should follow the usual complaint routes to resolve the matter.

Information is key to the IMA. It enables us to spot patterns that could indicate systemic issues that must be addressed.

Put simply, the more evidence we have, the stronger our position is likely to be when seeking to effect change and uphold the rights of EU citizens after Brexit.

Find out more about the IMA

Contact the IMA

 

Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.