Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Fourth sitting)

Debate between Afzal Khan and Nick Thomas-Symonds

Thursday 14th February 2019 Public Bill Committees

[Afzal Khan]

Q Finally, what concerns do you have about the ability of EU citizens in the UK and UK citizens in the EU to accumulate social security rights if we leave the EU without a deal? Clause 5 of the Bill grants Henry VIII powers to the Secretary of State to make broad changes to social security co-ordination. Do you think those rights can be gained without primary legislation?

Professor Peers: Again, it might be more useful to have some kind of statutory protection, at least of basic things such as acquired rights to social security as of Brexit day; obviously, British pensioners or would-be pensioners in the EU would be interested in that, as well as EU citizens who live or have lived here and might return to their original home on retirement. That would be useful as well.

Of course, this is more complicated, because a separate Act has recently passed Parliament that sets out separate powers to negotiate on social security. In this case, with social security, the Commission has proposed EU legislation—I think at the urging of member states—to keep acquired rights in relation to social security on the EU side. Depending on the details of how that gets negotiated, obviously very quickly, on the EU side, that might be something it would be useful to match.

Even if we do not have a ring-fenced agreement on all these issues, which would be ideal, would it not be helpful for everyone concerned to at least match the arrangements on social security and acquired rights? Perhaps that could be a statutory commitment and the Minister could come along and adopt a statutory instrument to match whatever the EU legislation is at the end of the day, which will not be too long from now, I think. That would be a good way to look at it going forward.

[Nick Thomas-Symonds]

Q Professor Peers, you have written a lot about free movement, including that of UK citizens in the EU27. A former constituent of mine contacted me recently about the situation in Austria; the Austrian Government have just published their scheme for expats, and it is €210 per person for a long-term residence permit, which seemed to me quite an extraordinary amount of money. Can you set out your concerns for UK citizens in the EU27 during this period?

Professor Peers: Yes. There are a number of concerns. First, it would have been better either to have a ring-fenced agreement covering people on both sides and cutting out that part of the withdrawal agreement, which is not particularly controversial, or to have EU legislation similar to the social security proposal that has already been tabled, which unilaterally and uniformly protects UK citizens’ rights across the whole European Union. For whatever reason, the Commission did not go ahead with that, but it would have been far better to have done that.

What we have instead is different countries doing different things. Some aspects of UK citizens’ rights in the EU27 are governed by EU law on non-EU citizens, and long-term residence is an example of that, but there are parallel national laws on long-term residence too. I do not know the details of the Austrian law offhand, but the EU law on long-term residence has case law saying that you should not impose disproportionate fees, so someone might want to challenge the €210 as a disproportionate fee. However, if that is a national law on long-term residence, you do not have an EU law argument about it, so there will be a lot of non-uniform degrees of protection of UK citizens.

It would be better to have standard rules, because a lot of those citizens would be looking at national long-term residence; EU long-term residence is not necessarily used that much. Some of them will face the difficulties of paying high fees. There may of course be other difficulties in applying. There may be earnings thresholds, or other criteria to be met in relation to health insurance or being employed and so on, to get long-term resident status under national law. Those could be difficult to meet.

There might be issues to do with family reunion. Certainly if the family member has not been registered yet, or if they come after Brexit day, different rules might apply to them. It might be quite challenging to bring families in, or have them to stay. If there is a separation or divorce that could raise issues, and people would be in a more difficult position than they would under EU legislation.

Anyone who does not yet have the right to long-term residence could be in an even more difficult position, depending on how restrictive national law is in relation to how they qualify for the right to stay. Would they be given something like pre-settled status, which we will have in the UK, on the basis that they are on their way to getting long-term resident status, or, instead, a short-term permit? It might be that that could not be renewed, or could not be renewed on the same basis, or would not let the person change jobs, or would not let a student look for work—all things that people would have as an acquired right if the withdrawal agreement is passed.

People who are not registered under the national system for registering foreign citizens will have difficulty in any event. They might have difficulties for that reason alone with qualifying under a national system of getting residence permits. If they do not get a residence permit at some point, their life will be more difficult in terms of travel, access to benefits or whatever it might be.

Those points are a broad indication. They will be different in each country and the details will differ, but they give a broad idea of the sorts of problems UK citizens might face.