What is the government’s current position and what is it proposing for the status of European children after the UK finally leaves the EU?
Following the vote to leave the EU in June 2016, European citizens were left in limbo about their status in the UK, as were British citizens living abroad. Of the three million EU nationals living in the UK, 679,000 were under 18 in 2016.
A significant proportion of these children have been living here long-term – around 258,000, or 38 per cent, were born in this country. The government published a white paper on exiting the EU in February, and on 26 June the policy paper ‘Safeguarding the Position of EU Citizens in the UK and UK Nationals in the EU‘ was published, setting out the UK’s offer to EU nationals who are residing here.
EU law is distinct from national law on immigration because it allows individuals to accrue time spent in the UK without making applications for visas beforehand. Applications for permanence under European law are only to confirm rights that someone already has.
The Citizens’ Rights Directive, which came into force through national legislation in 2006 (the Immigration (European Economic Area) Regulations 2006, consolidated in 2016) allows for the free movement of individuals in order to work, be self-employed, study, retire or otherwise be self-sufficient in another EU country.
These free movement rights are known as treaty rights. Depending on the activity an individual is engaged in, they can bring family members to the UK to live with them. These family members can be European nationals themselves, or they may come from other countries outside the EU. Family members can travel and live in the UK with family permits, which are much cheaper and easier to obtain than an application under the immigration rules.
When the UK leaves the EU, the Citizens’ Rights Directive and the Regulations will no longer apply, and the UK government will need to make the rules on who is allowed to live in the UK and under what conditions.
June’s policy paper contained an offer of settlement for EU nationals who have accrued five years living in the UK. The residence rights will not be contingent on whether someone can demonstrate their free movement activity, but the five years of residence in the UK must start before a certain cut-off date, which is yet to be confirmed.
These proposals have been criticised for their lack of generosity towards EU nationals. They are also very limited in their discussion of children and children’s rights. Children are most often considered family members and so their rights are dependent on their parents. The paper states that children whose parents qualify for settled status will also be able to qualify for it. This treats children as appendages to their parents without looking at whether there are routes for children to qualify independently for the new status.
Children in care are particularly vulnerable if a child’s rights must be dependent on their parents, because they may have lost contact with their parents, or may not want to get in touch with them. It is already very difficult to ensure that EU children in care have access to leaving care services when they are 18. A settlement must include this group, who do not have family members to look out for them.
Coram Children’s Legal Centre has repeatedly called for assurances that children will be treated as individuals. Part of this is to ensure the application system is as simple as possible with an evidential threshold that all children can meet, and very low application costs. It is also vital to ensure that those caring for them, whether family members or corporate parents, are clear on the steps they need to take to secure their status.
Points for practice
- Reassuring children and young people about their rights to be in the UK. These have not altered since the UK voted to leave the EU
- Checking whether any children are eligible for British citizenship and ensuring that they have access to legal advice
- Ensuring that there are sufficient documents for each child that confirms how long they have been in the UK, including any information that may have been provided by their parents
- For children who are turning 18 and care leavers, source legal advice and representation on whether they are currently exercising treaty rights and consider what steps the local authority can take to support them currently
For more information read our briefing on a settlement for European children in the UK here.
If you need advice, contact our Migrant Children’s Project
This article was written by Frances Trevena, legal and policy manager, and appeared in Children and Young People Now as part of its monthly Legal Update