September 06, 2017
Home Office leak shows unpicking of EU nationals' family reunion rights
Document shows a narrower definition of term ‘family member’ and confirms European case law will no longer be binding on the UK
The leaked Home Office document on Britain’s post-Brexit immigration policy spells out for the first time how ending the jurisdiction of the European court of justice will weaken family reunion rights for EU nationals in Britain.
The right – under which EU nationals can bring family members, including spouses, to live with them in the UK – is already a flashpoint in the Brexit talks on citizens’ rights. But the leaked document shows the Home Office wants to go further and extend restrictions that could turn thousands more into “Skype families”.
The document also confirms that the forthcoming immigration bill will only “switch off” regulations implementing EU free movement rules. The bulk of the new transitional and final immigration system will be introduced through secondary legislation that has minimal parliamentary scrutiny.
On family rights, the draft document says withdrawing from the European court of justice will mean that, for those who come to Britain after Brexit, European case law will no longer be binding on the UK.
For the first time it cites specific examples, quoting three cases in particular – Zambrano, Surinder Singh and Metock – which it claims have given “EU nationals rights to enter and remain in the UK which they would not otherwise have”.
The Home Office says that Metock has allowed a non-EU national illegally in the UK to remain if they form a genuine relationship with an EU citizen. Surinder Singh has allowed non-EU nationals who are partners of UK nationals who been legally living in another EU member state to become resident in Britain under EU, not UK, rules.
The Home Office also says it wants to tighten the definition of a family member. Officials say they “will no longer apply the EU definition of ‘extended’ family members where there is virtually no limit on the distance of the relationship between the EU citizen and the extended family member, as long as they provide valid proof of the relationship between them”.
Post-Brexit Britain intends to define family members as “direct family members”, which will include only partners, children under 18 and adult-dependent relatives. Others to stay under EU “derivative rights”, such as the non-EU carer of a British child, will also lose the right to stay in Britain.
The leak of the Home Office document prompted strong reactions across the political divide. Yvette Cooper, the Labour chair of the home affairs select committee, said her committee would demand answers from ministers because it suggested the government was not prepared to wait and listen to independent advice on the issue.
“This document seems to contradict the home secretary’s decision just over a month ago to ask the Migration Advisory Committee to provide all the evidence to underpin a new immigration policy,” Cooper said.
“Why have they asked the MAC to do a major programme of work if they have already decided what they want to do?” she added, saying there were rumours that No 10 disagreed with the decision to commission the independent review.
Cooper argued that the government’s process for developing policy was “completely confused” and asked if any assessment had been made about the relationship between immigration proposals and any trade or single market deal.
There was also an immediate response from Europe, with Elmar Brok, the German MEP who is one of the European parliament’s Brexit officials, warning it would deepen mistrust at a key point of the negotiations.
He told the Guardian that the “harsh language”, the March 2019 start date, and the time limits on skilled and unskilled workers showed “there is not any sensitivity about this issue when we talk about the rights of citizens”.
“This will increase the lack of credibility and deepen mistrust,” added Brok, who suggested the proposals would make it harder to reach agreement on the Brexit divorce by October.
If the government followed the logic of the Home Office paper, the UK would find it very hard to avoid a Brexit cliff edge. Such tough restrictions would rule out staying in the single market or the European Economic Area.
Michiel van Hulten, a former MEP who is a visiting senior fellow at the London School of Economics, said: “These proposals take hard Brexit to their logical conclusion – a clean break with the legacy of EU membership. In that sense there’s no surprise. But if the UK wants to secure a transition period … as has been suggested recently, this is completely the wrong way to go about it.”
Labour’s frontbench response came from shadow home secretary, Diane Abbott, who said the leak was “not yet government policy” and her party would judge it against criteria laid down if it became that.
“Labour wants fair rules and reasonable management of migration in accordance with the needs of our economy and our values as a party,” she added. However, Abbott has argued strongly that her party should hold its nerve over the issue of immigration.
The TUC’s general secretary, Frances O’Grady, said: “It’s no wonder these back-of-an-envelope plans are causing rows between ministers. They would do nothing to tackle falling living standards and insecure jobs.”
London’s mayor, Sadiq Khan, said the plan “read like a blueprint on how to strangle [the capital’s] economy” that also “risks thousands of families being split up”. He added: “I respect the outcome of the EU referendum, but the British people did not vote to make our country and future generations poorer.”
Steve Peers, professor of EU law at Essex University, said the Home Office interpretation of the role of the European court of justice was “highly misleading”.
“The repeal bill will end ECJ jurisdiction for post-Brexit judgments but maintain pre-Brexit rulings as precedent,” he said. “What the government means to say is that it wishes to overturn these pre-Brexit ECJ rulings immediately – a derogation from the normal rule.”
Peers added in a series of tweets that the Home Office statement that there was “virtually no limit” on the extended family that an EU migrant could bring to Britain was a “highly misleading and inflammatory” claim that no competent civil servant should sign.
He quoted the clause on EU free movement law clause on extended family and said that its reference to “shall … facilitate” did not amount to a right to enter.
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