Immigration lawyer Mikhil Karnik explains how the UK Government’s approach to the rights of EU citizens and their non-EU family members would entail a significant increase in the coercive power of the British state.
As Brexit approaches, the impact on EU citizens, their non-EU family members and dependants, is becoming increasingly clear:
I am taught a lesson every single day that I am not welcome here in so many different ways…Sometimes we have to find so much courage, and we are abandoned and isolated ……. I felt disappointed at first but now I am angry and bitter…….. I’m anxious. I’m afraid. I’m disgusted. I’m disappointed.
The Government says it will offer ‘settled status’ to EU citizens and their non-EU family members. According to Amber Rudd, this will be ‘as easy as setting up an online account at LK Bennett’, where apparently you can pick up a bargain leopard print jumpsuit for a mere £350. As it turns out, easy could not be further from the truth. And now it has become tolerably clear that the Government’s ‘settled status’ approach amounts to an huge expansion of state power, and an equally colossal bureaucratic interference in the lives of millions of people who live, work and are rooted in the UK, in many cases born in the UK and living here for decades.
Rights and powers
The right to move and reside freely for EU citizens and their non-EU family members meant in practice that for those exercising their rights, save for the occasional production of passport or national ID, daily life was free from the substantial interference that the state imposes on other foreign nationals. Provided you fall within the agreed criteria of what it means to be exercising those rights, broadly, with the noteworthy absence of the right to vote, your entitlements are much the same as a British citizen.
Legal rights belong to the individual; a person can choose to exercise them, or not; and when challenged by the state, once a right is asserted the burden falls to the state to justify that interference is warranted.
By contrast, powers are entitlements the state grants itself. A primary mechanism by which the state exercises its powers is by granting permissions. A driving licence permits a person to drive a car, but the state retains powers to control the issue of licences, to limit the scope of any licence, and to revoke a licence once issued. The context is the power the state has taken for itself – it is only with the express permission of the state that a person may drive a car on a public road.
The state has chosen to exercise powers over non-EU nationals, and do so by means of permissions. Those powers are now to be extended. Settled status is the Government’s mechanism of choice for addressing its problem of what to do with the millions of EU citizens currently exercising their rights in the UK. The dissolution of substantive rights at the stroke of a pen, and at the same time their substitution by an award of extensive, new administrative powers, in respect of so many people, marks a significant increase in the powers of the British state, especially where successive governments have dismantled the protections afforded to those who rely upon the grace of permission by the state.
Still worse, the Government’s method of implementation, as a matter of expedience, to resolve the logistical nightmare of bringing millions into a permitting system, has been to turn to technology. Unsurprisingly, the harsh reality of this technology already provides a portent of how disorderly a disorderly Brexit might be.
Sajid Javid said that the system will be ‘simple’ and that an application will be ‘very quick’. However, his department have succeeded in devising a system which requires that the applicant who prefers not to surrender their passport to the British state for the obligatory application must either have the most up-to-date android phone – for many the app won’t load or work – or must visit one of only 13 verification centres in the whole of the UK. A government who purportedly can easily make trade deals has found itself unable to reach an agreement with Apple so that an application can be made with that rarest of devices – an iPhone. The Home Office’s statement that it, ‘continues to work constructively with Apple and expects to find a resolution so the functionality becomes available on their devices’, sounds familiar.
Even many of those with the latest android phones have found that midway through their application the app freezes, and the default prohibits them from making a fresh application for up-to 60 days. Many have waited with growing anxiety for days for calls from the special Home Office ‘helpline’.
And, unlike other migrants, who at least are given a card or document to show prospective employers, landlords, banks, health workers and so on, EU nationals will have to rely upon a paperless digital system. Potential employers and others, in order to avoid criminal or civil sanctions, will themselves have to log onto a new ‘secure’ system. However, they can only do this once the EU national has made sure they have been provided with a secure number or link, which itself will require access to yet another system in order to have the code or link generated in the first instance.
These and other aspects of the system are not only cumbersome, they will obviously act to discourage employers and landlords from accepting EU nationals, they will act to tie EU workers to existing employers, whatever the workplace conditions; they will substantially increase the precariousness of EU workers and could encourage unscrupulous employers and landlords.
EU citizens have started to enter the hostile space occupied by migrants in need of permission, where the state has, and uses, relentless administrative powers, applied at times with Kafkaesque logic, to impose restrictions that can appear limitless to those affected. Rules impose restrictions on areas including: opening bank accounts, driving a car, marriage, renting a home, studying, working, healthcare and social security. Administrative powers are available to take away liberty and remove a person and their family if an official so chooses. Ultimate power rests with the state, or in practice immigration officers and their administrative staff, and it is the state that chooses whether to exercise those powers. Provided it uses its powers ostensibly lawfully, the state can act unfettered.
The burgeoning harshness and complexity of the immigration rules, the goalposts of which can and do change at whim, makes it much easier for someone with permission to stay to slip inadvertently into being someone without permission. Equally, the new powers exercised by the state over EU nationals will undoubtedly be extended over other migrants.
The extension of powers occurs at both the level of big data and for the individual. The application is digital, and at its heart lies a series of mandatory data checks following sharing of data from the DWP and HMRC with the Home Office. The data will be analysed by an automatic system and will declare pass/fail/partial pass. Already this system has resulted in many fails for EU citizens, including those that have lived in the UK for decades, causing frustration, distress and alarm. The system appears to be unable to deal with maiden names, passports without biometric chips, to say nothing of those who are incapacitated or with learning difficulties, or simply are not highly conversant with technology. The elderly and those who have lived in the UK the longest are, perversely, most likely to fall foul to this digital system.
The Home Office has indicated that for now the raw data will be deleted upon completion of the application process, though some unspecified data may be retained for an unspecified period. But that means that the rejected person has no means of knowing how the decision was reached, and the reasons for it being made, which makes any challenge to the negative decision all the more difficult. The applicant will bear a heavy burden to prove that they ought to be granted settled status. The Home Office approach presupposes that the various departmental records are accurate and complete, and that, as data is transferred en masse, no transcription or other errors slip in.
Even more worryingly, whenever a person changes their mobile phone number or their email address, or updates their passport, they will be obliged to notify the Home Office. The opportunity to expand the surveillance capabilities of the state are enormous. It is also not clear the extent to which data provided to the Home Office will not then be passed on.
So a question has to be: can this unprecedented expansion of state power be checked? There is no reason why the state could not create a new species of rights, equal to, and replacing those that are to be lost. In fact, those rights could even be augmented with, for example, the right to vote, they could be extended to others. A demand for replacement rights, of equal strength, is both concrete and agitational, and need not be limited to EU citizens and their families. Movements cannot be willed into existence but now more than ever there is an urgent need for real solidarity with the millions of people who today face a very uncertain and unsettled future.