A leaked Home Office document on the UK's post-Brexit immigration policy has spelled out for the first time how ending the jurisdiction of the European Court of Justice (ECJ) would weaken family reunion rights for European Union nationals in Britain.
Currently, under EU law, EU nationals can bring family members, including spouses, to live with them in the UK. The right is already a critical point of contention in Brexit talks on citizens' rights and the leak prompted immediate, strong reactions from many quarters, within the UK and without.
A concern voiced by some social media users referred to the term 'Skype families' — an outcome of UK's extended restrictions that would force EU nationals and their relatives to see each other mostly during calls on video messaging service.
New term: Skype families. https://t.co/e64AOypt8V— Nikolay Nikolov (@Nikolay_Nikolov) September 6, 2017
'Skype families' — in the darkest reaches of the imaginations of faceless bureaucrats how is this possible? https://t.co/bFa0dI4gvE— Helen Frame (@frame_helen) September 6, 2017
In Europe, German MEP Elmar Brok, one of the European Parliament's Brexit officials, warned it would worsen the UK's credibility and deepen mistrust in negotiations.
Brok told the mainstream media the "harsh language" of the document, along with the March 2019 start date and time limits on skilled and unskilled workers indicated there was not "any sensitivity" about the issue in Whitehall.
As a result, it will be incredibly difficult to reach agreement on the terms of the UK's EU secession by October, as they would effectively preclude the UK from staying in the single market and/or the European Economic Area.
Leaked Government immigration plan is economically illiterate & cruel — will result in divided families, lost opportunities & financial cost— Caroline Lucas (@CarolineLucas) September 6, 2017
Jean Lambert, London's Green MEP, said the document embodied all the characteristics typical of Home Office immigration proposals "administratively complex, economically harmful, ideologically driven, and lacking in human compassion."
"It displays contempt for the millions of EU nationals who have built their lives in the UK in good faith, and for EU negotiators who have made it crystal clear they will not accept any roll-back on citizens' rights. This marks yet another example of the Government making unreasonable proposals that will appease the tabloids but damage the UK's fragile relationship with its closest neighbours. If nothing else, it serves as a reminder that the Home Office can't be trusted to protect our established rights to free movement. A stark reminder of why we need the continued protections of the ECJ," Lambert said.
Trade Union Congress General Secretary Frances O'Grady referred to the document as a "back-of-an-envelope" plan.
"It's no wonder these plans are causing rows between Ministers. They would do nothing to tackle falling living standards and insecure jobs, [and] create an underground economy, encouraging bad bosses to exploit migrants and undercut decent employers offering good jobs," he said in a statement.
London's mayor, Sadiq Khan, said the plan was a "blueprint on how to strangle" London's economy, which "risks thousands of families being split up…the British people did not vote to make our country and future generations poorer."
Other analysts were less critical, however.
Former MEP Michiel van Hulten, currently a visiting senior fellow at the London School of Economics, said the proposals took "hard" Brexit to their logical conclusion — "a clean break" with the legacy of EU membership — and in that sense were unsurprising. Nonetheless, he believed the proposals were the "wrong way to go about" securing a transition period.
Absolutely right. No EU27 MS wll accept a transition period under these migration rules. If implemented, this policy wll lead to hard Brexit— Yannis Koutsomitis (@YanniKouts) September 6, 2017
On family rights, the draft document says withdrawing from the ECJ will mean European case law will no longer be binding on the UK.
The authors cite specific examples, in particular three pivotal cases — Zambrano, Surinder Singh and Metock — it claims have granted EU nationals rights to enter and remain in the UK "which they would not otherwise have."
The Metock case precedent allows a non-EU national illegally in the UK to remain if they form a genuine relationship with an EU citizen, while Surinder Singh's allows 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.
Are We Related?
The document also indicates the Home Office wants to tighten definitions of family members, dumping EU definitions of "extended" family members, which the document claims establish virtually no limits on the distance of a relationship between an EU citizen and an extended family member, "as long as they provide valid proof of the relationship between them."
In post-Brexit Britain, family members will be defined as "direct family members" — including only partners, children under 18 and adult-dependent relatives. Others who can currently claim EU "derivative rights" — such as the non-EU carer of a British child — will also lose the right to stay.
Steve Peers, professor of EU law at Essex University, was harshly condemnatory of this section of the leaked document.
In a series of tweets, he suggested the Home Office's claim there was "virtually no limit" on the extended family an EU migrant could bring to the UK was "highly misleading" and "inflammatory."
2 This is false. EU free movement is not "unconditional" — as the document itself goes on to recognise. pic.twitter.com/DrUzQ4W1BZ— Steve Peers (@StevePeers) September 5, 2017
3 This is misleading. The Repeal Bill will end ECJ jurisdiction for post Brexit judgments but maintain pre Brexit rulings as precedent. pic.twitter.com/6GGU8TFBpv— Steve Peers (@StevePeers) September 5, 2017
EU laws on the free movement of extended families do not amount to a right to enter, he noted, but instead potentially facilitate such an eventuality.
He added that the Home Office's interpretation of the role of the ECJ in respect of families was likewise "highly misleading."
"The repeal bill will end ECJ jurisdiction for post-Brexit judgments but maintain pre-Brexit rulings as precedent. What the government means to say is it wishes to overturn these pre-Brexit ECJ rulings immediately — a derogation from the normal rule," Peers said.