EU-UK committee hears several thousands still to secure post-Brexit residence rights

Carol and Lahsen Karmoud have been living together in Brittany since 2019 and have been married since 2020, but Lahsen has not been able to obtain a residence permit in France, nor the permission to enter the UK.

The couple expected that, as a family member of a Briton living in France before 31 December 2020, Lahsen’s residence would be guaranteed by the Brexit agreement. Instead, their story has become an example of the lack of information and the bureaucracy surrounding the implementation of the deal.

Two years after Brexit, thousands of people across the European Union and in the UK still have to secure their legal position in the country where they live. On Monday, the specialised committee on citizens’ rights set up under the withdrawal agreement took stock of the situation.

“Trapped in France”

Carol is from England and has been living in France for 19 years. Lahsen is from Morocco. They met as pen pals in 2016 and in 2019 he moved to France to start a life with her. Lahsen first arrived on a short-stay visa and then applied for residency, a request that was rejected because they were not married yet, they explain. They appealed the decision and managed to marry in June 2020, later than planned due to the coronavirus lockdown.

At that point he was still fighting for the right to stay and she still had to apply for her new residence permit because the post-Brexit system was not open yet. Only in December 2020 she started the procedure and much later, in July 2021, she received the confirmation from the local prefecture that her residency application had been accepted.

In the meantime, with her mum ill and an impending deadline set by the UK, they decided to move to England.

Britons living in the EU have until 29 March 2022 to return to the UK with non-British family members under EU free movement rules. After that date, they have to comply with the UK immigration regime, which requires the ‘sponsor’ to have a certain income and the family member to pay for visa and healthcare fees.

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Lahsen’s application for an EU family permit in the UK, however, was rejected too because Carol had not provided “adequate evidence” of permanent residence in France. The Home Office also said she had to give further proof of having worked in France and of a “genuine” family life together.

With both France and the UK denying him residence rights, Lahsen’s passport expired and Moroccan authorities also refused to issue a new one in the absence of a local permit. Moving to Morocco was not an option either for the couple, not least because their civil marriage would not be recognised.

“If Lahsen had been issued his residence card, he could have entered the UK on that and we could have applied for pre-settled status while still in the safety of the UK,” Carol said. Now, she added, “we are literally trapped in France because of the Home Office’s unfair decision. We were so sure of getting this permit that we have transferred all but our personal belongings to the UK.”

In December 2021 they made a new application to the UK and they are now waiting for the decision.

“We accept that we made some errors in how we did things, but that was only because we did not know what the outcome of Brexit was going to be, for example what my rights would be, but we at no time made any attempt to break any laws,” Carol explained.

The couple said they tried to handle the process on their own, with limited legal help as they could not afford a lawyer. But other people are struggling to secure their post-Brexit rights too.

Formal complaint about France

In December, the EU Rights Clinic, a support service run by European Citizen Action Service (ECAS) and the University of Kent in Brussels, and Remain in France Together (RIFT), a group representing Britons in France, sent the European Commission a complaint detailing problems about the post-Brexit residence permits.

The complaint was based on a RIFT survey in which Britons reported “excessive delays” in processing applications and “unreasonable requests for additional information”, such as language skills, education level and family outside France, usually asked to non-EU nationals but not in line with the withdrawal agreement.

Other issues were related to family reunifications and to the policy of not issuing residence documents to children, although border officers sometimes demand them.

Parents can apply for a special document allowing minors to travel abroad (“document de circulation pour étranger mineur”, DCEM), but this costs 50€ while the residence permit under the withdrawal agreement is free.

The EU Rights Clinic and RIFT called on the European Commission to request French authorities to resolve the problems.

Under the withdrawal agreement, the European Commission is responsible to oversee the rights of British citizens living in the EU and an Independent Monitoring Authority has been set up to oversee the rights of EU citizens in the UK. They report to the specialised committee, which is made of representatives from the UK and the EU.

“Degradation of EU free movement”

The committee on Monday looked at the situation across Europe. In the countries that required British residents protected under the withdrawal agreement to re-apply for resident status, the deadline closed on 31 December 2021.

In France, the deadline was in October and from 1 January 2022 it is compulsory for British residents to have a residence card.

According to the report published by the specialised committee, the processing of the applications has caught up in the past few months: from the estimated 148,300 Britons living in France, 105,600 people were granted permanent residence and 46,700 non-permanent residence (having lived in France for less than 5 years).

In the Netherlands, 45,200 applications were concluded positively out of 45,000 eligible British residents. In Sweden, 12,700 Britons out of 13,000 secured their rights.

But in other countries there is still a gap: 9,500 out 11,500 British residents got status in Austria, 9,900 out of 18,600 in Belgium, 10,700 out of 13,600 in Malta, and 2,400 out of 5,500 in Hungary.

Applications remain possible after the deadline where there are valid reasons for the delay. But in a statement after the committee meeting, the British government “expressed concern at the lack of detail around late residency application policies”.

In addition, the British in Europe coalition warns that the “biggest concern” is now the “very large number” of citizens who have not requested new residence documents in the countries where they simply had to re-register.

“There are now an estimated 804,000 UK citizens in ‘declaratory’ countries, and this is higher than previous estimates by more than 50,000, but to date, only 275,100 applications received.  Member states need to do much more to inform and reach people who are often highly integrated, or vulnerable,” said British in Europe co-chair Jane Golding.

There is a “serious problem” in Portugal, she added, as “no biometric cards have been issued and yet residence documents are needed on a daily basis for most institutions.”

In Spain, where 187,200 out of 430,000 Britons re-registered as residents, there are “delays with the exchange of pre-2021 EU documents, which impact access to employment, healthcare, social security and other services,” Golding continued.

“There are also issues related to appeal processes for residency applications,” she said, as “some people who have received refusals have been given 15-day notices to leave.”

In Italy, 11,600 out of 33,800 British residents requested a new document, in Cyprus 2,400 out of 38,500, and there are no available data for Germany.

The UK government raised concerns that British nationals “continue to experience difficulties when seeking to access benefits and services,” and requested clearer guidance in these countries. 

Other issues have reported with regard to frontier workers and cross-border workers, who live in a country and work in another and for whom guidance is also lacking, Jane Golding said.

Dr Anthony Valcke, founder of the EU Rights Clinic, told Europe Street that “part of the problem appears to be due to insufficient understanding of the rules contained in the withdrawal agreement”.

However, he added, this is “only one aspect of a wider problem linked to a general degradation of EU free movement rights which we have witnessed in the past five years.”

In several EU countries, he said, “the immigration authorities have shown an inclination to interpret key concepts of the free movement rules in a restrictive manner, as a way to exclude EU citizens from the benefit of free movement rules when they are deemed not to deserve this” and “the Commission has been reticent to take enforcement action to date.”  

Similar difficulties have been reported by EU citizens in the UK, where more than 6 million applications have been submitted to the EU Settlement Scheme but more than 328,000 were still pending on 13 January 2022.

Campaigners from the3million, a group defending the rights of EU citizens in the country, estimate that at the current processing rate it will take 16 months to clear the backlog.

In the past year, the Independent Monitoring Authority (IMA) has intervened several times to resolve cases in which EU citizens were denied access to public services.

The IMA has recently launched a legal action against the Home Office because it is asking EU citizens with ‘pre-settled’ status (those who have lived in the UK for less than 5 years) to re-apply for ‘settled’ status (upon reaching 5 years of residence), losing status completely if they do not do so in time.

The European Commission, also worried about this policy, is considering “appropriate next steps” hinting at a possible legal action too.

The EU is also concerned about the “lack of legal clarity” for EU citizens with the new UK residence status, as it is not clear “whether their rights are guaranteed by the withdrawal agreement or by the UK immigration law”.

For now, most of the people who moved between the UK and the EU before Brexit have managed to secure the right to stay where they live. But for several thousands life in the adoptive country has become more precarious and moving across borders, like Carol and Lahsen want to do, much more complicated.

Claudia Delpero © all rights reserved

Image via Pixabay

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