Professor Stijn Smismans gave evidence.

Welcome to the Committee. Would you please kindly introduce yourself for the record?

Professor Smismans:

I am Stijn Smismans, professor of European law at Cardiff University, and I am speaking on behalf of the3million, which represents European citizens already resident in the UK.

Q We heard from Professor Bernard Ryan on Tuesday that a gap in the Bill is its lack of provisions for EU citizens who are already here and who will now apply for settled status. Do you agree? What kind of provisions would be needed to secure the rights of EU citizens in the UK?

Professor Smismans:

I entirely agree. The objective of the Bill is to remove free movement and substantially to regulate future immigration. However, as collateral damage, the 3 million EU citizens who are in this country will be affected. The Bill does not provide any guarantees for them, which is quite remarkable. It provides protections for Irish citizens, which for reasons of history one can understand. However, at the same time, Irish citizens have lived in this country over recent decades with the same status as EU citizens, so it is strange that the Bill protects only that category and does not provide any protections for the EU citizens already here.

What the Bill does is actually quire radical. These EU citizens have been living here for decades completely legally, and legitimately expecting that their status is solid. One day, the Government said that they were going to remove all those people’s rights—their complete status. The Government say they will replace it with something new, although the definition of that is not yet entirely clear. There is still room for manoeuvre on which rights they will get, and particularly on the definition of the status, which can be partially set out in secondary legislation.

Moreover, the Government are not going to grant that status; EU citizens will have to apply for it and must comply with the criteria. If, by a certain deadline, they do not have those documents, they can be immediately deported, because they will be here illegally. That is quite radical for people who have been living here for, potentially, decades.

To put yourself in their place, imagine that you, as British citizens, have in the same way legitimately expected that you have the right to stay here, and one day the Government say that they will abolish the status that you have and replace it with something new. They assure you that it will be more or less the same, but they will set it out in secondary legislation. You must then apply for it, and if you do not get it, you can then be deported. You may say that British citizens are British citizens, not EU citizens, but over recent decades EU citizens have been living here with nearly exactly the same rights as British citizens, except the right to vote in national elections. They have had substantially the same rights, and they have never had to provide any other proof of their identity. They are now going from that status, which is protected not only in primary legislation but supranationally, to one that is not even set out in primary legislation, because the Bill does not provide that protection. It removes those people’s rights and gives a very broad delegation to secondary legislation, leaving much to be set out there. the3million proposes that the Bill should set out several criteria. To start with, the process of registration should be set out in primary legislation, with criteria that give clarity on the exact status those people will have. We also propose that the procedure should be declaratory, compared with the current constitutive one. Obviously, that also implies that there have to be limits on the Henry VIII powers that are given in this Bill.

Q Just to make sure we catch both these areas, I have two quick questions. We have heard that the implementation Bill may be a chance to guarantee the rights of EU citizens in primary legislation. Do you want to expand on that? What is the case for doing it in this Bill?

Professor Smismans:

The most logical way of proceeding would be to wait until we know whether there is a withdrawal agreement, because that withdrawal agreement provides protection for EU citizens and the UK would have to implement it with an implementation Bill. At the moment we do not know whether there will ever be a withdrawal agreement. If there is one, we do not know exactly what the implementation Bill will do. In the case of no deal, this Bill is the only place where you can provide guarantees in primary legislation.

Even if there is a withdrawal agreement in the end, if it were to be adopted in a couple of weeks, we would have a month to discuss the implementation Bill. That Bill will probably be limited in how much detail it would provide on the rights of EU citizens already here. There are some aspects that the withdrawal agreement does not set out in detail, such as the registration procedure. In any case, that would have to come in primary legislation set out here, and not just in the implementation of the withdrawal agreement. If it is not set out now, there is a very big chance that if there is no deal, there will be no guarantees in primary legislation, and even if there is a withdrawal agreement, the implementation Bill does not do that properly, because there has not been enough time to discuss it.

Q What concerns do you have about the Henry VIII powers in this Bill? Do they potentially allow the Government to amend the rights of EU citizens in the UK by secondary legislation?

Professor Smismans:

The provisions given here for secondary legislation are very broad. The process for applying for status is not in primary legislation, so that is a starting problem. The rights we currently have can broadly be revised by the powers given in this Bill, so the status that we once had can be undermined gradually over time. That is why we propose that if a delegation remains in the Bill, there should be a sunset clause on it, so it is only for tweaking technical issues in current rules. In particular, there should be a clause that stipulates that these provisions should not at any time undermine the existing rights of the people already here.

We understand that one wants to regulate free movement for the future, abolish it and create new rules, and we understand that that might require Henry VIII powers. That is a choice. But it is a very different thing to remove the existing rights of people who have been here for decades. That should be set out in primary legislation, and it should not be possible to play with that in secondary legislation.

I just want to clarify something. You seemed to suggest that EU citizens who are living here now do not have to apply for any settled status, but that is not the case, is itQ ?

Professor Smismans:

No, our proposal is that there should be a registration system. If there is no registration system, these people will not be able to distinguish themselves from future immigrants, so there has to be some registration.

But even EU citizens now, as we are still members of the EU, still have to apply for settled status. There is a process in place and they have to have lived here for six months in any 12-month period for five years in a row. That is the case now, is it notQ ?

Professor Smismans:

Yes, that is the process that is set out in secondary legislation, not in primary legislation. If the criteria for that are changed over time, we have no protection against that.

But that is the case nowQ ?

Professor Smismans:

That is the case now.

So there is a process that EU citizens have to follow in this country, if they want to apply for settled statusQ .

Professor Smismans:

This is the process for settled status that is in place now. It has problems and is surely not perfect. We know from the numbers—if the numbers are confirmed as they are now—that there is a considerable group of people who will be at risk at the end of that process, and who will not have registered, particularly the vulnerable. There is a big risk that a percentage of people will get the reply that, “You don’t get settled status. You get pre-settled status.” Quite a few people who have been living here for more than five years but have failed to prove it get pre-settled status. At some point in the future, those people will have to prove again that they have the five years. If they cannot manage to do that now, it is unlikely that they will be able to do it in the future. That will be pushed by the deadline. You have a category of people who are strongly at risk of becoming illegal if they do not have the document by that time.

Q Okay, but there is a process in place now. Although we have free movement, which this Bill aims to end, there is already a process in place that people from the EU have to follow. It is a cumbersome and bureaucratic process, but it is not true that this is something new and different that has not happened to other members of the EU.

Professor Smismans:

No, this is new because it has been put in place in the context of Brexit. It is not a process one had before. Before, one had the process of permanent residence applications, which hardly anyone applied for, because they did not feel the need for it. That process of permanent residence was exactly a declaratory process. If you had the document, it was convenient for you to show that you had that status. If you did not have the document, that was not a problem. It is a declaratory status.

What we will get is completely the opposite, which is why we say we need a declaratory process, so that the sole fact of not having the document does not mean that you do not have the rights. It just means that, at that stage, you cannot prove it because you do not have the document, but you should still be able to apply to get the document even after the deadline. That is the difference between the declaratory and constitutive systems.

Q For British citizens in other EU members states, do they have to apply for ID cards now as current members of the EU?

Professor Smismans:

For ID cards, no. That is a national issue. There are a lot of EU countries that have registration systems on arrival. The UK could have done that decades ago—could always have done that. The fact that it has never done that actually creates a lot of problems now.

Q For those British citizens, as EU citizens now, what are the consequences if they do not apply for an ID card in that particular country?

Professor Smismans:

That depends on the country.

Could you give me an example?

Professor Smismans:

In some countries, it will create problems in getting access to public services if people are not registered. Under EU law, they could be there for three months without registration. Some countries say that after those three months, you have to register. If you have not done that, and you want access to welfare benefits, they would say, “Well, you haven’t registered.”

It has always been the case that countries could do that. The UK could have done that, but has not done that. Having people who are not registered now creates a difficult problem for the future, because non-registration will have the immediate effect that you become illegal. Even in the EU, it is not, “If you haven’t got registration, you aren’t legal.” You might not have access to certain services, but you are not illegal and you are not deported on that ground.

Q May I ask you about the provisions in the Bill relating to social security? What are your views about the powers in clause 5?

Professor Smismans:

They are very wide. These are the essential rights of people who have built up pension rights, sometimes in several countries. EU rules allow that rights built up in several places can be aggregated. We do not know what will happen with that. If there is a withdrawal agreement, it will be guaranteed. If there is no withdrawal agreement, we do not know. The promise so far, which is not yet set out in a legal text, is that rights built up until now will still be recognised, but rights built up after Brexit will not be recognised. That is obviously a problem. You are saying, “Okay, you have built up these rights until now; be happy with that,” but that means that people cannot move any more. If I have built up pension rights here, having been told, “We will recognise them and we will recognise the pension rights you have built up in Belgium, France and Italy,” but from now on I am told, “We will recognise only what you do in the UK”, that means that I cannot move back to Belgium if I want to or if I have to go and take care of my mother. I cannot do that, because my pension rights will have been building up until this moment in time.

That is why there should be limitations on how these rights can be affected and undermined by secondary legislation. Ideally, this is set out in the withdrawal agreement; it should be guaranteed in primary legislation. The withdrawal agreement is important for this issue, because it includes elements of co-ordination between countries. You can never resolve it unilaterally, because there are always aspects of co-ordination of information. You have to know what has been done on the other sides. And actually there are already proposals for statutory instruments that say, “If we don’t get the information from the other country, we are not obliged to take these rights into account.” There are already statutory instruments—proposals for that—that are undermining our rights.

There is a tendency in the first proposal for statutory regulation to forget about the 3 million already here. It is all set out: “We are going to change the rules on free movement for the future.” It is a kind of generic approach: forget about the 3 million who have built their lives on these rights. So there are no guarantees there. These guarantees have to be set out in primary legislation.

Q The statutory instruments that you are talking about are statutory instruments that the Government have already laid under the European Union (Withdrawal) Act 2018. That is correct, is it not?

Professor Smismans:

Yes.

Q That would give the Government the opportunity to demand information or make assumptions about your status if you could not supply that information.

Professor Smismans:

Yes, exactly.

Q Given that the Government are already laying statutory instruments under the European Union (Withdrawal) Act 2018, what further concerns do you have about the additional provisions in this Bill?

Professor Smismans:

This goes on the same line as what the withdrawal Act allows them to do. It is not particularly worse than the powers given there, but it is not giving any guarantees.

Q So it does not make the situation better and it may be making it even more punitive.

Professor Smismans:

Yes, it makes things worse, in that the Bill obviously removes the free movement rights in their entirety. On social security, it does not remove them as such, but it gives the power to do that under secondary legislation. So in a way that is less radical than the first aspect of the Bill, but in practice it may well come to the same thing.

Q Do you have any concerns about the power that this Bill would confer on Ministers to make different provisions in relation to social security for different categories of EEA or other nationals?

Professor Smismans:

Yes, the Bill explicitly says that. The positive interpretation might be, “Well, actually, we needed that to say we have to distinguish between future immigration and those people who are already here.” The practice of the first instruments that are adopted is that actually they do not make that distinction, so it can be used in many different ways. That is why our proposal is that if there is such delegation, at least there has to be a protection for people who are already here saying that their rights cannot be removed by secondary legislation.

Professor, as part of the3million, you have had frequent meetings with Government in terms of designing the Q settled status scheme. Can you tell us how effective you think the Government and the Home Office in particular were in engaging with stakeholders?

Professor Smismans:

There has been engagement with stakeholders on the practical implementation, for sure, which has been useful. I think it has been more difficult to have any influence or feedback when civil society has said, “Well, actually, our rights have to be guaranteed; it’s not just an issue of practical implementation.” That has been far more problematic. There has been an involvement, but given the state of the legislation and the rules, clearly civil society has not been as effective as it hoped.

Q I hear what you are saying. In answer to previous questions, you talked about the dissatisfaction with the way the rights have transitioned. However, my understanding is that you were consulted extensively on the design of the settled status scheme.

Professor Smismans:

The main flaw of the design is its basic principle: it is a constitutive system. Whatever criteria you put in or however you organise it, the practical consequences can be dire under a constitutive system.

Another key aspect that is highly problematic is that the scheme will, in the end, give you an electronic code, not a physical document. That is highly problematic in practice. People need a physical document. For other immigration statuses, people get physical documents. If people do not have that physical document, private actors will ignore them. Again, the vulnerable will struggle if they only have a code. A private landlord might not make the effort to make use of that code, or might not know how.

There are also huge IT risks. Every IT specialist we have spoken to says it is an incredible risk. Data might get lost. That happens. The data system might be hacked, which will mean that the status of these people will be gone, and they will have to reapply. If that happens, they will not have any document and will be immediately illegal, with all the consequences of the hostile environment hitting them immediately. They need a physical document. That is a key ask, because those with all other immigration statuses get a physical document. Why do these 3 million people not? It is very important.

Q Thank you for that. You talked about the flaws of the system. There were bits that you had an input in designing or were extensively consulted on, so something in there must be good. Do you think there is anything in there that could be useful as the basis of a future immigration system? What do you like about the settled status scheme?

Professor Smismans:

I will not express myself on the future immigration system. That is not my task. the3million defends the rights of the EU citizens already here. Whatever system is designed for the future is a political choice that we do not have to make, so we do not make any statements on that.

In the same way, we say that ending freedom of movement for the future is a legitimate choice, and that is fine. We can talk about the interpretation of the referendum, as the Minister did before, which I heard from the back, but we usually leave the interpretation of the referendum up to you. However, let me remind you that, before and after the referendum, all parties said that the rights of EU citizens already in the country would be protected, and that everybody who was already here would be able to remain here with the status they already had.

The Bill wipes out those people’s rights completely and leaves it to secondary legislation to sort them out, and also makes them register with an uncertain outcome. That is not the promise that was made by any political party during or after the referendum.

That exchange anticipated my next question, which was going to be about the physical documents. In that discussion, you made the point that you were consulted. You have made a very powerful case on the importance of physical documentation. Presumably, you made that case to the Home Office in the consultationQ ?

Professor Smismans:

Yes, we have said repeatedly how important a physical document is and that we want one.

Q Did you hear any convincing argument from the Home Office as to why that should not be provided?

Professor Smismans:

We have heard arguments that this is the future and that the electronic system will work. Unfortunately, I think that there are inherent risks in the future, and people should be prepared for that.

Q May I move to a different area—the right of appeal? You expressed concern about it earlier, and I assume that you also expressed your views about it fairly robustly in consultation with the Home Office. I guess that the Home Office would have said in reply that there was the option to pursue administrative review and judicial review. What was your reaction to that?

Professor Smismans:

There are two issues. On the one hand, if there is a withdrawal agreement, it will require a right of appeal—at least, I hope that if there is a withdrawal agreement implementation Bill, that will be one of the things explicit in it. We do not know whether there will be a withdrawal agreement, and from what I hear there is no clear promise that we would get a right of appeal without one. I am an EU lawyer, not an immigration lawyer, so I am relying mainly on what I have heard from my colleagues in immigration, but we know that there have been considerable problems with how administrative review has worked in the past. It means the Home Office having to judge itself. That might be fine as a first access point or a first way to resolve things, if it works, but it is not enough; we need judicial review and the right of appeal on top.

Obviously you are here to particularly represent those EU citizens who are currently living in the UK, but may I ask you the same question that I asked some of our panellists this morning about British citizens living in the EU? Do you think that all the EU countries have been doing everything possible and taking adequate steps to guarantee the rights of British citizens living in the EUQ ?

Professor Smismans:

No, they definitely have not. That is why it is so important that we get the withdrawal agreement or, if there is no withdrawal agreement, that we get a separate citizens’ rights agreement. What we have been asking for is that the citizens’ rights part of the withdrawal agreement be ring-fenced and adopted. The withdrawal agreement was agreed between the EU Commission and the UK Government; it did not pass in Parliament, but citizens’ rights were not the debated issue. If the withdrawal agreement fails, it will be because of the border between Northern Ireland and Ireland and the wider issue of where the future relationship is going, not because of citizens’ rights.

The best way to safeguard our rights is through the withdrawal agreement or, in the event of the failure of the withdrawal agreement, to have a separate citizens’ rights agreement under article 50. That would mean that British citizens in the European Union were protected at a supranational level; they would not depend on 27 national rules, in the same way that we do not depend just on the UK. It is a kind of balancing act, in the way that there has been a reciprocal solution between the rights of EU citizens here and British citizens in the EU. That would remain in place for that category of people on both sides. That is the best guarantee.

In any case, issues such as social security co-ordination will require international treaties. You can resolve some issues unilaterally or set out some guarantees in primary legislation, but for the issue of British citizens in the EU, doing that would depend on all the countries at a national level. As we have seen recently, there is not much willingness among European Union member states to let the European Union do that. If there is no agreement, it will mainly be up to national solutions in each country. On social security, you would then have to negotiate agreements between the UK and the 27 countries separately. Surely that would not provide the protection that the withdrawal agreement or a separate citizens’ rights agreement could provide.

Q Do you think that the UK and the EU have approached these issues from different perspectives?

Professor Smismans:

The withdrawal agreement provides a solution. There is quite broad agreement on both sides, and within EU member states in general, about the solution for EU citizens. The problem is that it is linked to the fate of other dimensions of Brexit, and by linking that, once the rest falls apart, this guarantee falls apart unless you use article 50 to still adopt that.

That has to be done quickly, because once the UK is out of the European Union it cannot use article 50. That means that for all the rights set out in that agreement, if they have not been adopted under article 50, you have to go to the different legal basis of the new treaties, which does not give you the same powers. The complete set of rights protected there could never be protected in another way than through article 50, so once the UK is out, if these citizens’ rights have not been guaranteed, it will be too late to provide the same level of protection that we have now. At best, it will come up with a sub-optimal solution that will then have to be ratified in all the member states, so it will also take much more time, which means extra insecurity in the meantime.

Q This 3 million is a big number. Even if small numbers get caught up in something like what has happened with Windrush, do you think there is a risk that EU citizens will be caught in that way?

Professor Smismans:

Exactly. With the settled status scheme, even if there is a 95% success rate at the end, 5% of 3 million is a lot of people. Given the current consequences, that means being hit by the hostile environment—that you are illegal whatever you do. If you are in work, that will be illegal. You lose all access to services and you can be deported at whatever moment in time. Even if it is 5% of 3 million, that is a huge number, and it will be at least 5%, because people will not register, will be rejected, or people will be in the quite unstable position of pre-settled status. After five years, they might try again, and are likely to fail again. It is likely to be hundreds of thousands.

Q I think that you have said that the best way to protect citizens’ rights is through the withdrawal agreement, and you will certainly get no argument from me on that front. In the event of a deal, given your clearly expressed view that citizens’ rights should be protected in primary legislation, is a withdrawal agreement Bill the best place to do that?

Professor Smismans:

That is what I said, and ideally that would have been the case. The problem is that first, we do not know whether it is going to happen, and secondly, if it is going to happen, the time will be so short that we will not know what is in there.

But ideally, that would be the place.

Professor Smismans:

Yes. Ideally we would have discussed the withdrawal agreement and implementation Bill, and then we would discuss a Bill that removes all that except for this category. If we say, “We will remove everything, and then maybe we will see what comes after the rest”, that is more problematic.

Q Do you think that the3million has a role to play in encouraging EU citizens to apply through the settled status scheme?

Professor Smismans:

Definitely, and it is ready to do so. Nobody gets an advantage from people not being documented, given that there will be two categories of people.

Q Good. I am very pleased to hear that the3million wants to continue to play a role, because we have certainly welcomed its input so far. Have you ever applied for an e-visa or an electronic travel authority to go to any other country?

Professor Smismans:

No.

Q Would it be your view that ETAs, or the electronic system for travel authorisation to go to the United States—you have clearly not applied for one of those—are better than physical documents, or do you think a wet stamp on a passport is the 21st-century way of dealing with things?

Professor Smismans:

I have no experience with that system, so I cannot compare it.

Q Would you acknowledge that physical documents can get lost and might need renewing, which could potentially come at a cost to either the individual or the state?

Professor Smismans:

They can get lost, but we would hope that they are backed up on the electronic system, so a person has two ways of being secured.

Although if we had an electronic system, that also might be backed up.

Professor Smismans:

Yes, yet IT specialists say there is a big risk there.

Thank you very much indeed for your time. We are very grateful for the evidence you have given the Committee.