By DIEUWERTJE DYI HUIJG
The Prime Minister, ministers Davis and Lewis, as well as Verhofstadt are suggesting that all EU citizens will be able to continue to live in the UK as they have done so far. However, a critical assessment of their statements, of the EU-UK Joint Report published last week, and the Technical Notes (TN) published last November suggest that only those EU citizens who can evidence “five years of continuous and lawful residence as a worker, self-employed person, student, self-sufficient person, or family member thereof” can acquire settled status (see paragraph 10, TN). This will exclude various groups, such as unregulated workers and homeless people, including the following two groups:
- Disabled EU citizens who have not been able to work, who have not worked sufficiently or not continuously, or who might never work due to their disabilities, and
- EU carers (of disabled relatives) who are not considered “workers” as their work was on the basis of personal budgets.
To reiterate, EU citizens are not a homogenous group. In terms of impact, it is important to differentiate between, on the one hand, normative EU citizens who “have paid into the UK system” and to whom the Prime Minister and the others refer and, on the other hand, disabled EU citizens and EU carers – as well as other groups at risk. Disabled EU citizens and carers do fear Brexit and, looking at the way that the government has been treating all disabled residents in the UK, they fear Brexit for a reason. These are the expected consequences in practice:
- They cannot acquire “permanent residence/settled status under the Agreement […] per the conditions set out in Article 16 of Directive 2004/38” (paragraph 10, TN).
- The “EU citizens who apply for status but do not fall within the scope of the Withdrawal Agreement” – such as the discussed two groups – will not only be “refused status”, they will “be in in the UK unlawfully”. (para 18, TN)
- The consequence of this is that, once they become ‘unlawful residents’, these two groups – as well as other vulnerable groups – “will not be entitled to access work or other services” (para 18, TN).
- In addition, the government has proposed that these groups of EU citizens “may be asked to leave” (para 18, TN).
It is necessary to be transparent about the suggestion that EU citizens can ‘become unlawful residents’. Considering that the regulations post-Brexit are based on Union Law pre-Brexit, logic seems to suggest that, then, only those can be unlawful post-Brexit who are unlawful pre-Brexit. In other words, those of us who become unlawful might actually currently already be unlawful.
It is also important to be explicit about what “other services” mean and how stopping access to these services particularly affects disabled EU citizens. Ironically, access to work might affect these groups little as they would have already worked if they could have and then, obviously, would have been able to acquire settled status as anyone else. Emphasising access to work, then, is a smoke screen; the actual “other services” (see para 18, TN) that disabled EU citizens are particularly worried about concern access to, for instance, medication, medical treatment, general access to healthcare, non-medical care, housing and benefits.
Not many disabled EU citizens dare to go public around this issue as they are afraid that their access to aforementioned services will already be stopped, because that is what the government has been doing already to other disabled people in the UK. Currently I am a PhD student, so I am here at the moment ‘lawfully’ under Union Law
(Dear Home Office, this was meant for you; I am trying to complete my thesis and have sufficient stress in my life already, could you be so kind not sending me erroneous but worrying letters now that I have outed myself? Thank you).
As such: I am a (Dutch) disabled EU citizen and, although I have lived here since 2009, I have not been able to build up the required five consecutive years of study and work due to health challenges I experienced. I receive regular medical treatments and interventions and depend on a daily basis on medication; my dependence is such that the NHS – lawfully, I assume – granted me a Medical Exemption Certificate valid, ironically, till after Brexit. I do currently fear Brexit because of this. As my health is stabilising, I am working hard to (finally) complete my thesis in 2018; hence, I am in a relatively ‘good’ position as I hope to be employed soon after I get my diploma. If not settled status, I hope there will be another immigration status I can apply for. Other disabled people and carers, however, might not be able to rely on an immigration rule based on employment.
What is the situation for (these) disabled EU citizens and carers then? If the government indeed will execute this proposed policy, there seem to be, as I see it, three scenarios:
- The UK government made a mistake and they are rectifying it as we speak: disabled EU citizens and EU carers will soon be protected and Verhofstadt guarantees he will include this in his “legal text“.
- Disabled EU citizens and EU carers are not allowed to live in the UK anymore after Brexit, or, alternatively,
- disabled EU citizens and EU carers will not be told to leave the UK, but, because access to services on which they depend are stopped, effectively they will have to ‘self-deport’.
People have their individual reasons why they want to live in the UK and why they call the UK their home, be that on feelings of affinity or pragmatism. However, there are other reasons that are outside of individuals’ control that mean that they will not be able to ‘go back’ to their EU country of nationality. This might be because they depend on care and do not have a family, care or other network there; they might not be able to communicate in the respective language and might not be able to learn this because of their disabilities; last, and this affects disabled people over the spectrum, they face waiting periods in EU countries of, give or take, between two months and two years to acquire access to healthcare, care, medication, benefits, housing and other services.
EU carers and disabled EU citizens particularly are facing an unrealistically dangerous and unjust scenario, if not an outright personal, public and political health hazard and violation of human rights. This is the responsibility of the UK government; this is the responsibility of all countries of origin of the citizens that we speak of; and this is the responsibility of the European Union. All of them are already aware of the issue at hand. We are waiting for this to be solved. Disabled people and carers do not choose to be(come) disabled nor for their relatives to be(come) disabled. Disability is a public and political issue and requires a public and political solution.