EDF Gendering Brexit Blog series: Gentlemen’s agreements: proposals on the table for EU citizens’ rights disadvantage women by design

As Brexit-day draws nearer, we are faced with two similar-but-different proposals for migration regimes for EU nationals in the UK – one in the draft Withdrawal Agreement (just) concluded, but now looking precarious, between the UK and the EU, and one in the UK Home Office’s proposals, which appear predicated upon there being a withdrawal agreement.

Although no deal is a distinct possibility, the citizens’ rights part of the withdrawal agreement may end up being plucked out and ring-fenced into a ‘partial deal’ to avoid human catastrophe, so this post reflects upon the offers on the table.

In both regimes, people will fall through the cracks. And women will be disproportionately likely to be among that group.

Professor Charlotte O’Brien from the York Law School, contributes this blog on EU migrants’ rights , gender and Brexit. 

Right to reside

So – the UK-EU proposals. The withdrawal agreement, which still has to get past a divided cabinet and through parliament, provides for continued residence rights, and for the possibility of attaining permanent residence after five years – but that residence must be in accordance with Directive 2004/38, which means having complied with the ‘right to reside’ requirement – a requirement that systematically disadvantages women (and children). In working on the EU Rights Project, it became clear how unforgiving the right to reside requirement can be of employment histories that have been punctuated with periods of child care, or caring for disabled or older relatives. Sometimes women who had been resident for very substantial periods would fall through the gaps. Other times women who had had to relocate due to domestic abuse would see their five-year ‘clock’ get restarted. Part time workers, casual workers, and workers in precarious or atypical work all face uphill struggles to demonstrate that their work is/was ‘genuine’ and that separate contracts should be treated as ‘continuous’.

The right to reside criterion has been problematic enough in its current guise – for deciding who is entitled to benefits – but is a wholly inadequate tool for allocating who has the right to stay in their country of residence (and in some cases, country of birth). It is hard to believe that the EU genuinely wishes EU citizens of considerable periods of residence in the UK, to fall through the Directive’s yawning gaps and face removal.

Settled status proposals

Now – the Home Office proposals. We are in the curious and unusual position that the national plans are more generous than those offered at EU level. The UK proposals started out with three conditions – being an EU national, having been resident in the UK for five years, and not having been convicted of a serious criminal offence. The requirement to have been exercising a right to was conspicuously absent. As the approach is not reflected in the draft Withdrawal Agreement, that means that if the UK departs from its own promises, the EU will not seek to enforce them. And the signs are that the UK is not averse to changing the scheme.

Even the best-case scenario, in which the UK settled status proposals survive in tact, is messy. It will involve multiple parallel immigration regimes, with different evidential requirements and processes.

3.8 million citizens

In this context, an overstretched department is unlikely to have much time to reach out to those people that the Migration Observatory has identified as being at risk of failing to secure their rights. And among these groups, women are overrepresented. Very long-term residents, and older citizens, may not realize that they need to secure their status; NPC has shown that women constitute 61% of EU nationals who have been in the UK for longer than 30 years, and nearly three quarters of EU nationals in the UK who are over 75. Groups that might have difficulty adducing evidence of residence, due to the lack of a HMRC ‘footprint’ include unpaid carers; more than 90% of EU nationals resident in the UK who are not working due to caring for family members are women. Women in exploitative work may have even had their identity documents taken away. Third country national women will be dependent on their relationship to a family member for qualifying for settled status, which will create significant problems for those in abusive situations.

Making the lawfulness of residence for 3.8 million citizens hinge upon successful registration over a short period of time, and with a hard deadline, condemns these women to illegal status. So the best-case scenario has some disturbing outcomes built into it.

‘No deal?’

We are still in the dark about what EU citizens’ rights will actually be; ‘no deal’ is still a real possibility, and the UK Home Office’s plans may prove more mercurial than rock solid. Even within those plans there are significant risks that vulnerable groups, in which women are represented, will fall through the semi-deliberate cracks in the system.