Brexit and human rights project briefing No. 4: Variations on free movement

The Labour Campaign for Human Rights is pleased to publish the fourth briefing of our Brexit and human rights project. The briefing provides an objective human rights analysis of three proposed variations on free movement: free movement with a job offer, free movement with an emergency break, and free movement limited by regional or sectoral quotas.

The final section of this briefing considers the recurring human rights risks posed by these three alternatives to free movement, and makes some recommendations for Labour’s priorities for a humane, progressive post-Brexit immigration system.

You can read the briefing here.

LCHR’s Response to the Initial Brexit Agreement

Just when it seemed that the government’s chaotic Brexit negotiations had damaged negotiations beyond repair, Theresa May managed to scramble together a compromise on citizens’ rights, the financial settlement and the Irish border that enables talks to progress onto the next stage.

Yet despite the government’s subsequent victory lap, it is worth remembering that this deal was struck months later than scheduled, and contains simply the bare minimum that EU negotiators consider as constituting “adequate progress.” As European President Donald Tusk pointed out, the delayed nature of this deal means that it will be a “furious race against time” to complete the negotiations before March 2019. Most of the substantive and complex issues regarding our future relationship with the EU, including a sustainable solution for the Irish border, have simply been kicked into the not-so-long grass.

On the issue of citizens’ rights, the government must surely be wondering if months of intransigence and bluster that resulted in the needlessly protracted anxiety and uncertainty for millions was really worth it, especially as its last minute agreement largely caved to demands made previously by the EU. It is true that the deal was considerably better than the government had previously indicated, with EU citizens in the UK having the right to stay and maintain many of the rights they currently enjoy. Theresa May also bent one of her supposed ‘red lines’ by allowing the European Court of Justice to remain the final arbiter of EU citizens’ rights for 8 years after withdrawal.

Despite the deal’s positive elements, there has been much opposition to the provision that every EU citizen will have to apply for ‘settled status’ if they are to legally remain in the UK. As pointed out by one immigration expert, it is inevitable that many EU citizens currently in the UK will fail to complete the application in time, due to lack of awareness, education or simple organisation. There are also serious doubts over the Home Office’s capacity to deal with such an influx of applications, as the department currently rejects 29% of applications and recently distributed hundreds of erroneous deportation letters.  Settled status therefore risks precipitating a significant spike in undocumented and illegal migrants, who will then have to navigate the ‘hostile environment’ intentionally created by a government obsessed with reducing net migration.

One area in which the deal exceeded expectations is by making most family members of EU citizens eligible for settled status. However, EU citizens who begin a relationship with a foreign national after Brexit day will be subject to the same punitive spousal income requirements which make Britain the worst developed nation for family reunification. As Professor Steve Peers argues, this misses a vital opportunity to ‘level up’ the rights that enable us to live with our loved ones, as the current deal simply means that “migrants will be treated equally badly to nationals.”

Citizens’ rights groups have also been quick to criticise the agreement’s repercussions for UK citizens living in the EU. In July, Theresa May inexplicably rejected an offer made by the EU to guarantee the continuation of rights for Britons in the EU to move freely between member states for work, holidays or retirement. Jane Golding, Chair of British in Europe, lamented the fact that the current agreement fails to provide such a guarantee, with another campaigner describing how British citizens living abroad are “more fearful than ever of being thrown under the Brexit bus.”

It is therefore clear that, despite its generally positive reception, the minutiae of this deal have left many substantial issues unresolved. It is up to Labour to keep the pressure on the government to ensure that the rights of everyone living in Britain are safeguarded as we leave the EU.

Joe Duffy is LCHR’s Campaign Intern 

Brexit and Human Rights Briefing No.3: Free Movement and Human Rights

The Labour Campaign for Human Rights is pleased to publish our third Brexit and Human Rights Briefing: Free Movement and Human Rights.

The briefing offers an honest analysis of the system’s impact on human rights in order to aid our understanding of its alignment with progressive values and how it could fit into Labour’s approach to Brexit. This briefing situates free movement alongside Britain’s considerably less human rights compliant immigration system for those outside the EU, and argues that a priority for Labour must be to ‘level up’ rights for non-EU migrants. We also consider how Labour can listen to and recognise the concerns of voters regarding free movement, whilst also combating attempts to scapegoat migrants by redirecting the legitimate anger felt at economic insecurity towards their true sources.

Why we should be concerned by the government’s secretive approach to Brexit

The defining message of the Vote Leave campaign was that “leaving the EU … will save our sovereignty.” Before and after the referendum, leading Brexiteers within the government have embedded their arguments of global trade and reduced immigration within the noble principle that parliament, and by extension the British people it represents, remain sovereignty.

Yet this week saw yet another clear demonstration of the government curtailing parliamentary oversight of its’ disastrous Brexit strategy. After weeks of delaying tactics in which the government refused to comply with cross-party calls that it release a series of confidential studies on the economic impact of Brexit, Brexit Secretary David Davis risks becoming the first politician in centuries to be held in contempt of parliament after finally distributing incomplete and heavily edited reports.

The government withheld any information they considered ‘sensitive’, despite a binding, unanimous vote by MPs for complete access of the documents as well as reassurances by the Brexit select committee that any sensitive information would be treated appropriately. David Davis’ extreme self-editing meant that MPs received around twenty reports fewer than expected, with Keir Starmer expressing his shock at the paucity of information that the government deemed fit to share.

The fact that MPs had to utilise every parliamentary trick available just to secure the release of the modified information, including a ‘humble address’ that directly called upon The Queen to force Mr Davis to release the impact assessments, demonstrates the government’s desire to keep parliament at arms-length whilst key decisions are made by Theresa May’s core team. To then release such a watered-down version of what parliament requested was too much even for fierce Brexiteer Jacob Rees-Mogg, who said the government was “in serious constitutional waters if it doesn’t provide the full information … if you try to trample the rights of Commons in government … you have no means of curtailing abuses of power.”

Yet this remarkably disrespectful approach should not be surprising, as secrecy and concentration of executive power has defined this government’s approach to Brexit. The government’s ‘Great Repeal Bill’ has been widely criticised for granting extraordinarily sweeping and unchecked powers to ministers as they incorporate EU directives into British law. Meanwhile, Andrea Leadsom has also passed a motion to swing influential public bill committees in the government’s favour.

The dispute over the Brexit documents is simply the latest demonstration that, despite its empty rhetorical commitment to the sanctity of parliamentary sovereignty, this government would rather circumvent our parliamentary checks and balances. Labour must continue to oppose the government’s efforts to deliver the hard, centrally-managed Brexit that the electorate resoundingly rejected in June.

Joe Duffy is LCHR’s Campaign Intern 

Briefing: The Dangers of the Prevent Strategy

LCHR is is pleased to publish our briefing on The Dangers of the Prevent Strategy.

The briefing argues that by introducing a statutory duty for many public sector workers to identify and report individuals at risk of being drawn into terrorism, the Prevent strategy has incited suspicion, threatened human rights, and resulted in misguided referrals. We found that the strategy’s flawed assumptions, as well as the inadequate training it provides, has created an atmosphere of distrust and fear which is counterproductive to its goals.

By examining a number of case studies, this briefing argues that the Prevent strategy risks encroaching a number of core liberties, including freedom of expression, freedom of thought, conscience and religion, and freedom from discrimination. Prevent also disproportionately targets and impacts members of the Muslim community, with detrimental consequences for the success of Britain’s counter-terrorism initiatives.

In conclusion, LCHR recommends abolishing Prevent’s statutory duties and working with communities to find more effective, human rights-compliant alternatives.

You can read the briefing here.

Concerns about Voter ID pilot

A guest blog by LCHR member, Dermot Mckibbin

The Government has announced that a pilot scheme will be set up to require voters to produce identification in the polling booth prior to voting. Local councils will decide on what is suitable identification, and if voters do not have the required identification they will not be able to vote. Postal votes will be unaffected.

Four pilot exercises will be conducted in Bromley (Conservative) Watford (Lib Dem), Woking, and Gosport (both Conservative).  After the pilots have been evaluated, a decision by the Government’s Cabinet Office will be taken whether to roll out the practice nationally or not.

It is not clear whether voters have to produce both photographic and non-photographic identification at the same time. No decision has been made about what type of identification is acceptable. The details have still to be worked out. It appears that the Cabinet Office will be involved in the decision-making process as a statutory instrument will be required.

The voter ID requirement was introduced in Northern Ireland in 2003. Turnout for the Northern Ireland Assembly Elections was 68.8% in 1998, 63.1% in 2003, 62.3% in 2007, 55.7% in 2011, 54.9% in 2016 and 64.8% in 2017. An Electoral Commission report on the Northern Ireland Assembly Elections fails to even consider whether the fall in voter turnout was due to the ID requirement issue.

The Electoral Reform Society is opposed to voter ID. 51.4 million votes were cast in 2015. There were 130 allegations of voting fraud and only 26 were for voter impersonation. This represents 0.00005% of the votes cast. The Government is using a sledgehammer to crack a nut.

In the 2011 census, 9.5 million people stated that they had no passport, 9 million did not have a driving licence, and – in 2013/4 – 1.7 million did not have a bank account. Many of these people are likely to have low incomes.

There are some legal problems with the Government’s approach. The courts can scrutinise decisions made by Government via the process of judicial review. It may be that the courts would strike down this scheme as the decision is disproportionate to the problem it seeks to remedy. Challenges to government decisions in the courts via judicial review are an expensive business, though group funding can be successful.

By virtue of Article 3 of the First protocol in the European Convention of Human Rights, The United Kingdom undertakes to hold free elections. Strasbourg case-law has established that any interference with the implied right to vote must be proportionate. The European Council on Human Rights has a code of practice on electoral matters. Any deprivation of the right to vote must be subject to the principle of proportionality.

If Labour cannot change this policy in Parliament, progressive citizens should band together to fund raise to challenge this restriction on the right to vote in the courts.

Dermot Mckibbin
Beckenham CLP

The worrying increase in EU citizens forced to leave the UK.

Theresa May’s repeated refusal to guarantee the rights and security of the three million EU nationals living in the UK was interpreted as a negotiating technique, albeit a cruel and anxiety-inducing one, aimed more at leveraging preferential deals elsewhere in the negotiations than intentionally stripping away citizens’ rights. Yet a catalogue of recent examples demonstrating the government’s direct hostility towards EU nationals suggest that the government’s true intention may have been even callous than it first appeared.

Government data shows that deportations of EU citizens are at their highest since records began, with over 5,000 removals during the last twelve months – a 20 per cent rise from the previous year. These alarming figures have prompted the European Commission to investigate reports that the UK is violating its membership conditions prior to leaving the EU, with a commission representative confirming they were seeking information to explain the “increase in the number of EU nationals who are being detained and facing removal from the UK for immigration reasons.”

The extent of the government’s disdain towards the security and futures of EU citizens was demonstrated by a recent Home Office letter, written on behalf of Home Secretary Amber Rudd, in response to the request for emergency accommodation made by a Romanian national being held in a UK detention centre. The letter urged the sender to leave the UK, arguing they could “avoid becoming destitute by returning to Romania or another EU member state where you could enjoy access to all your ECHR rights without interference.”

A particularly unsettling reason behind the spike in deportation figures is a Home Office policy, introduced in May 2016 by the then Home Secretary Theresa May, that interprets EU citizens sleeping rough as a misuse of their treaty rights. This harsh and questionable interpretation of EU treaty rights, which form the foundation of EU citizens’ ability to reside in this country, is the first time that EU citizens can be forcibly removed from the UK even if they have not committed a criminal offence.

Recent investigations have shown the lengths the government have taken to target homeless EU nationals, with the Home Office secretly gaining access to a digital map created by Greater London Authority to categorise rough sleepers by nationality. This tool, designed to assist those helping the homeless, was instead used by the Home Office to target rough sleepers from the EU or central eastern Europe. The use of the map led to a 41% increase in the number of EU nationals detained. Liberty, a prominent human rights group, is making an official complaint to the European Commission, with Director Martha Spurrier criticising how “vulnerable foreigners have been systematically targeted by a government obsessed with deportation, whatever the human cost.”

The government’s apparent eagerness to drive EU citizens out of the UK has even resulted in some receiving mistaken orders to leave the country. Around 100 EU nationals received letters from the Home Office notifying them that “a decision has now been taken to remove you from the United Kingdom”, which included a threat of deportation if they did not leave the country within a month. Dr Eva Johanna Holmberg, a Finish academic at a London University, described how receiving the letter felt “like you are being treated like a common criminal” and how “this absurd nonsense has aged me at least five years … it shows the Home Office currently cannot function.”

What is it that is making the government willing to risk breaking both its legal international obligations and the trust of EU nationals living in the UK?

Since 2010, Conservative governments have shared a divisive, if politically convenient, rhetorical commitment to decrease annual immigration to the “tens of thousands”. The number of EU citizens being removed from the UK is five times higher than it was when the conservatives gained power in 2010. As Home Secretary, Theresa May intentionally created a “hostile environment” for illegal immigrants which incentivises private sector landlords, teachers, medical staff and other public-sector workers to act as unpaid immigration officers by forcing them to provide information to the authorities. With no regard for the cohesion of our communities, Prime Minister May has been using her promotion to extend this damaging policy to EU citizens in service of her government’s farcical commitment. As Shadow Home Secretary Dianne Abbott put it; “this Tory Government’s obsession with immigration targets and creating a ‘hostile environment’ mires everything that they do.”

Despite her persistent refusal to assuage the anxieties of EU nationals, Theresa May told Parliament in June that “EU citizens are an integral part of the economic, cultural and social fabric of our country and I have always been clear that I want to protect their rights.” Foreign Secretary Boris Johnson recently attempted to reassure a meeting of Polish dignitaries that their post-Brexit rights would be “protected whatever happens”. Their words now seem incredibly hollow when stacked against their government’s covert assault upon the right of EU nationals to continue living in the UK.

Joe Duffy is the Campaign Intern for the Labour Campaign for Human Rights.

This article was first published as part of our dedicated Brexit and Human Rights Campaign