Brexit: UK can’t deport millions of EU nationals, report warns

The Guardian

Owen Bowcott Legal Affairs Correspondent

Monday 19 December 2016

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Joint parliamentary committee says human rights should be safeguarded and calls on government to take firm position on residence rights

Mass deportations of the estimated 2.9 million EU nationals living in the UK would be impractical and they should not be used as a “bargaining chip” in Brexit negotiations, the government is being warned.

In a strongly-worded report published on Monday, parliament’s influential joint committee on human rights (JCHR) highlights the political uncertainty over the residential status of both EU citizens in the UK and the 1.2 million Britons believed to be living elsewhere within the European Union.

“The government must not use human rights as a bargaining chip,” Harriet Harman MP, the former deputy Labour leader and chair of JCHR, said: “The UK government could not deport the large numbers of EU nationals currently in the UK.

“In the unlikely and unwelcome event that the government sought to deport EU nationals there could be the potential for significant, expensive and lengthy litigation leading to considerable legal uncertainty for a prolonged period of time. These cases would have the potential to clog up and overwhelm the court system.”

The government, Harman points out, will continue to have obligations under Article 8 of the European convention on human rights which guarantees the right to privacy, home and family life. “Any dilution of human rights standards would be extremely undesirable,” Harman added.

The JCHR, which is made up of both peers and MPs, stressed the urgency of resolving the question of residence rights. It is concerned about comments made by Liam Fox, the secretary of state for international trade, who described EU nationals in the UK as one of the “main cards” in Brexit negotiations.

Sir Oliver Heald, the justice minister responsible for human rights, told the committee last month that the prime minister was seeking an “early agreement” on the status of UK nationals in Europe and EU nationals in the UK. He confirmed the government’s view that to take a unilateral position on the issue would not be helpful.

The report recommends ministers safeguard the residence rights of UK nationals in other EU states at the outset of Brexit negotiations through a separate preliminary agreement.

UK citizens forced to return from overseas might have problems over entitlement to benefits, including job seeker’s allowance, universal credit and pensions because of the habitual residence test.

Even if not formally deported, their existence are likely to become more precarious. “UK citizens currently benefit from a right to healthcare under EU law,” the report says. “If such benefits were withdrawn, post-Brexit, it is possible that great numbers of UK nationals, many of them pensioners, would need to return to the UK.”

Individuals’ rights will depend on length of residence and other factors. EU nationals who have been in the UK for over five years may nonetheless not satisfy the criteria for permanent residence if they have not been exercising treaty rights – such as working – in the UK, the report suggests.

Family connections and residence rights of any children will be relevant; each case would have to be considered separately. “It would not be possible for the government to establish a rule that would allow the deportation of EU nationals merely on the grounds that they had only been resident for a fixed period of time,” the report says.

The committee says it was contacted by those anxious about residence rights. It was also asked to consider the impact on the hundreds of thousands of couples where one partner is British and the other from another EU country.

The committee criticises the justice secretary, Liz Truss, for declining to appear and answer questions. “We are firmly of the view that the secretary of state should have appeared,” the JCHR report states. “The fact that she chose not to is unacceptable.” Heald gave evidence instead.

It is regrettable, the report adds, that the government has not been able “to set out any clear vision as to how it expects Brexit will impact the UK’s human rights framework”.

A government spokesperson said: “The UK has a long-standing tradition of ensuring our rights and traditional liberties are protected domestically and of fulfilling our international human rights obligations. The decision to leave the European Union does not change that.

“The Prime Minister has been clear that she wants to protect the status of EU nationals already living here, and the only circumstances in which that wouldn’t be possible is if British citizens’ rights in European member states were not protected in return.”

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