The Burden of Proof: How Will the Application Process Work for EU Citizens After Brexit?
One of the key questions arising from Brexit has been how to resolve status of EU citizens already in the UK and, specifically, what kind of application process will be required. In December 2017, the EU and the UK reached agreement on the basic outline of the future rights of EU citizens in the UK and their UK counterparts in the EU. Under this agreement, the application criteria will be the same as under current EU law: 5 years continuous residence, with exclusions on the basis of serious criminal offences committed before Brexit. Both sides have agreed that the application process should be “transparent, smooth and streamlined”.
However, the government will face tricky operational and political questions as it implements this system. Its task is to send more than three million applicants through the process as quickly and efficiently as possible while excluding people who are not eligible (for example because they were not living in the UK before the cut-off date).
Mistakes made on either front can be controversial – whether it is eligible applicants wrongly rejected or ineligible ones who slip through the net. A key dilemma is that there is a trade- off between these two risks: a process designed to minimise the risk of fraud using strict evidence requirements is likely to exclude eligible people who can’t provide the necessary documentation, push up the cost of the registration programme and increase the risk of people slipping into unlawful status.
The current application process for EU citizens seeking permanent residence has been much criticised for its complexity and strict requirements. It leans in the direction of preventing ineligible people from being accepted, rather than facilitating the process of getting documentation for people who are entitled to it. A document-heavy process and a relatively narrow interpretation of who qualifies (including a controversial requirement for some EU citizens to have private health insurance), have contributed to a high rejection rate. In the 15 months after the referendum, approximately 34,000 (14% of) applications were rejected and a further 20,000 (9%) were sent back to applicants as invalid or incomplete.
The government has responded to these concerns with proposals to significantly simplify the process. A new system will drop some of the more complex requirements, reduce the burden of evidence on individuals and rely where possible on information the government already holds, such as tax records. This is expected to make the process much simpler for the majority of people with straightforward applications.
The question how more complex cases will be addressed is still to be resolved. People who were not working or who were working in the cash economy may not have left an official paper trail. The current permanent residence application requires relatively ‘fraud-proof’ evidence such as bank statements or NHS letters, but not informal letters from friends they were living with, non-official mail or online activity. Even if only a few percent of the estimated 3.8 million EEA citizens and roughly 140,000 non-EEA partners were unable to provide the evidence required, the number affected could run into the tens or even hundreds of thousands.
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