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Can EU/EEA Citizens Be Deported from the UK After Brexit?

Since the Brexit vote in June 2016, EU/EEA nationals have been left in a perpetual state of uncertainty as to the circumstances in which they can be deported once Britain leaves the EU. Thankfully, 2020 has provided some clarity. The good news is that, according to the European Parliament's Brexit Co-ordinator, Guy Verhofstadt, there will be no automatic deportation of people if they failed to apply for settled status. Mr. Verhofstadt told The Guardian:

"I wanted to be sure that there would be no automatic deportation for people after that period because it can be people who are very vulnerable.

"The idea would be that even these people, after the grace period, they will have the possibility to apply to give the grounds for why it was not possible [to apply for settled status] within the normal procedures."

This contradicts what was said only three months previous when, in October 2019, Home Office minister Brandon Lewis told German newspaper, Die Welt :

"If EU citizens until this point of time have not registered and have no adequate reason for it, then the valid immigration rules will be applied."

The Guardian reported at the time that when pressed on whether that would include those who met the legal requirements for residence but did not apply by the deadline, he replied:

"Theoretically yes. We will apply the rules."

However, in January 2020, Mr. Lewis said deporting EU citizens who have not applied for settled status "is not what we're about".

No wonder EU/EEA nationals are feeling vulnerable.

Another Windrush-like Scandal?

One of the biggest fears of EU/EEA campaign groups such as 3Million is that, like many victims of the Windrush scandal, vulnerable people who need to apply for Pre-Settled or Settled Status will fall through the cracks.

Labour MP Daniel Zeichner told The Independent:

"EU nationals all over the country will have already drawn the comparisons for themselves.

"The Home Office cannot make our current immigration system work, so there is no prospect of creating a massively more complicated system for many, many more people, and to have it in place and working anytime soon.

"The treatment of the Windrush generation by Theresa May's Government has been despicable. The only good that can come is if they now acknowledge the harm they have done, fix it, and back off doing the same to yet more people."

EU/EEA nationals who have learning disabilities, mental health issues, and/or difficulty understanding English are extremely vulnerable to being missed off the Settled Status scheme. They could easily find themselves being denied medical care, be unable to find employment or access benefits in the future – as happened with those caught up in the Windrush scandal. And sadly, some Windrush victims were wrongly deported, and tragically died before the mistake could be rectified so they could return home.

Denying Those Convicted of a Criminal Offence Entry into the UK

On 13 July 2020, the Home Secretary, Priti Patel published documents that showed how the post-Brexit immigration system will work. They reveal that people who have been handed a custodial sentence of 12 months or more will be refused entry into the country. Furthermore, foreign nationals in the UK who have received a prison sentence of 12 months or more will be considered for deportation.

These new rules will include EU/EEA nationals.

The Home Office document states:

"A robust and consistent approach to applying the UK criminality thresholds for the refusal of entry, permission to remain in the UK, deportation, and exclusion, to EU and non-EU citizens, will be taken as part of the Points-Based System.

"Where the 12-month criminality deportation threshold is not met, a foreign criminal will still be considered for deportation where it is conducive to the public good, including where they have serious or persistent criminality.

"For EU citizens who are protected by the Withdrawal Agreement or the UK's domestic implementation of the withdrawal agreements, the tougher UK criminality thresholds will apply to conduct committed after the end of the transition period.

"The EU public policy, public security or public health test will continue to apply to their conduct committed before the end of the transition period."

An Uncertain Future

The stark fact is that from 1 January 2021, EU/EEA nationals will be subject to the same immigration rules as every other non-Settled person. And the treatment of migrants under the Home Office's 'hostile environment' policy has been harsh. For example:

  • Indefinite Leave to Remain applicants who made a mistake on their tax return has been refused leave to remain under Paragraph 322 (5) of the Immigration Rules, a section originally targeted at terrorists and those who pose a threat to public safety.
  • Thousands of children are growing up without one of their parents due to the Minimum Income Threshold of at least £18,600 required to obtain a Spouse or Unmarried Partner Visa.
  • Despite a Court of Appeal decision ordering the deportation of 50 people to Jamaica in early February, the Home Office still allowed the flight to depart the day after the ruling, with 17 deportees on board. This was despite the fact there were concerns that mobile phone outages had prevented detainees from having access to legal advice.
  • Figures released in 2019 revealed that 52% of Home Office immigration decisions are overturned when challenged in Court. Diane Abbott, the Shadow Home Secretary at the time stated, "These data clearly show that under this government, most immigration decisions that go to appeal were initially wrong, even though there is hardly any legal aid available to claimants."

Although the British government has offered assurance that EU nationals will not be deported arbitrarily, this stance may change if the country faces severe economic hardship or a sudden crisis in the future. The best way for EU/EEA nationals to secure their future is to not only apply for Settled Status but also British Citizenship. Citizenship cannot be removed (unless there are extreme circumstances), nor be lost. It provides an iron-clad certainty that regardless of the political and economic landscape, you cannot be denied your right to live in the UK – your home.

Related article: What will happen to EU National Family Members after Brexit

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"Anna Foley was the lawyer helping my partner obtain an EEA EFM visa. She was ou...

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