Working to uphold the rights of EU citizens post Brexit

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This guest blog was written by Dr Kathryn Chamberlain, Interim Chief Executive at the Independent Monitoring Authority for the Citizens’ Rights Agreements. As with all guest blogs, what follows are the views of the author, not those of SPICe or the Scottish Parliament.

The blog has been written from the perspective of the Independent Monitoring Authority (IMA) and seeks to set out how it operates and to inform MSPs and their staff about how they can work with the IMA to ensure citizens’ rights are upheld. 

The Independent Monitoring Authority

With less than four months to go until the EU Settlement Scheme closes, it is crucial that European citizens make an application in order to protect their rights in the UK and Gibraltar.

While media attention has largely been on securing trading agreements over the last few months, the Independent Monitoring Authority (IMA) has been busy preparing to ensure citizens can make complaints and our processes are in place to hold public bodies to account. We are currently working hard to ensure citizens and other organisations are aware of our existence and understand how they can report issues relating to their rights.

Who we are

The IMA is the independent organisation responsible for protecting the rights of EU and EEA EFTA (Iceland, Liechtenstein, Norway) citizens and their family members in the UK and Gibraltar after Brexit.

We are an arms-length body sponsored by the UK Ministry of Justice and based in Swansea, south Wales, but we are independent of government. The IMA has its own Board which ensures we can make decisions and assessments which are free from any influence, direction or guidance from government.

Our work is underpinned by the rights set out in Part II of the Withdrawal and EEA EFTA Separation Agreements and our role is to ensure these are correctly applied by public bodies. These include residence rights, the right to work, recognition of professional qualifications and access to social security. All EU and EEA EFTA citizens can expect to be treated equally to British citizens and prohibition of discrimination on the grounds of nationality applies to the enjoyment of all these rights.

Our engagement programme began early last year, and since then we’ve been in discussion with many influential organisations to raise awareness of our existence – largely from the comfort of our homes due to the pandemic of course.

This has included speaking to members and representatives from the Scottish Government and Parliament, with whom we share a commitment to protecting the rights of European nationals.

How we carry out our work

As an organisation, we have been in operation since 11pm on 31 December 2020 following the end of the transition period and have a number of ways in which we carry out our duties.

We collect and analyse intelligence from a range of sources including surveys and research to help us understand the experiences of EU and EEA EFTA citizens living in the UK. We also receive complaints via our portal from people who believe they may have been denied their rights.

When there are reasonable grounds to suggest general or systemic failings, we can carry out an inquiry and check public authorities have fulfilled their obligations.

Sometimes we may need to consider legal action if appropriate to ensure the citizens’ rights agreements are applied correctly. But that route is very much our last resort, and as an organisation we are eager to see issues resolved as quickly and as easily as possible. That’s why it’s crucial that we have spent the last few months building relationships with public bodies that will allow us to have constructive conversations which are open and honest.

Our Annual Plan will be published in April, setting out our approach to operation, how we will use our capabilities and work with others to uphold citizens’ rights. All our findings will then be reported at regular milestones via our website.

The IMA Board, which supports our independence, is made up of nine members including a Chair, Sir Ashley Fox. They are responsible for decision-making and setting the strategic direction of the IMA and members have been selected for their knowledge of the conditions in each part of the UK and Gibraltar. These include Joyce Cullen, a solicitor advocate and accredited mediator who has particular knowledge of the conditions in Scotland.

The challenges ahead

We recognise the challenge we face in explaining that as an organisation we do not replace existing complaint-handling bodies or advisory bodies, such as the Citizens’ Advice network across the UK. Instead, we focus on looking for patterns of behaviour or systemic issues that could negatively impact a number of European citizens.

In theory, upholding EU and EEA EFTA citizens’ rights after Brexit should be fairly straightforward – rights remain broadly the same as before for citizens resident in the UK and Gibraltar before 1 January 2021. But we know that won’t always be the case.

As the UK and Gibraltar leave the EU, public bodies will continue to improve their understanding of the new relationship with the EU and the new legal framework which governs the rights of EU citizens in the UK and Gibraltar. In such an evolving landscape it is quite possible, if not likely, that some mistakes or misinterpretations will be made on the way. Then there’s the added complexity of a global pandemic and its knock-on impact. This has led to many charities calling for an extension of the EU Settlement Scheme and more leniency displayed when deciding what constitutes reasonable grounds for a late application.

We know some citizens have faced difficulties securing documentation such as National Insurance numbers due to difficulties accessing support services which were available before the pandemic. Other issues which we have heard about through our monitoring includes issues securing the correct status following unexpected lengths of time out of the UK due to the pandemic and issues accessing social security such as benefits payments.

Where citizens’ rights issues arise relating to policies set by governments or other public bodies, we may choose to intervene and work with them to rectify things.

These are all issues which are on our radar and we continue to monitor closely through complaints and other forms of intelligence gathering. Any action we decide to take will be communicated with the relevant organisations and published on our website.

Over the last few months, our teams have also been drawing up realistic case studies which may emerge, ensuring the IMA’s response to these is reasonable and takes account of all the relevant legislation.

How you can work with us

We are urging everyone we work with to ensure EU citizens are made aware of what they need to do to secure their rights and stay. That means raising awareness of the EU Settlement Scheme deadline on the 30th June this year, particularly amongst vulnerable or hard to reach communities. We believe local networks hold the key to reaching some of those groups and our engagement plan includes working closely with them to share information.

Governments, parliaments, local authorities and their elected members also hold a wealth of information which will help us build a picture of the issues facing citizens, so we’d encourage you to keep in touch with us to ensure that data contributes to the way in which we work. We would also encourage you to mention the IMA and our complaints portal in your discussions around citizens’ rights with others.

Please do also contact us to raise concerns or insight you have which relates to issues in Scotland or elsewhere. Your information combined with the direct complaints we receive could be what it takes to drive systematic change and improve outcomes for EU citizens in the UK.

Dr Kathryn Chamberlain, Interim Chief Executive at the Independent Monitoring Authority