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Brexit, free movement and children’s rights

Children living in the UK under EU rights are at risk because of Brexit, but they are often unable to solidify their footing on their own. Others must help them do so.

claudia gabriela marques vieira/Flickr. (CC 2.0 by-nc)

European Economic Area (EEA) nationals (EU nationals plus nationals of Iceland, Liechtenstein, Norway and Switzerland) of all ages face an uncertain future in the UK after Brexit, but for children this uncertainty is already life-changing. For most migrants residing in the UK, their eligibility for leave, rights and restrictions are laid out in the immigration rules – a compendium of the most important pieces of legislation that make up the UK’s byzantine immigration laws. For EEA nationals different rules apply based on the principle of freedom of movement.

Freedom of movement was designed as an economic exercise: products, services and capital may circulate freely, and so too may the producers and service providers – individuals within the labour market. Free movement, in short, was not conceived with children in mind.

Free movement was not conceived with children in mind.

Since its origins, freedom of movement has evolved into one of the defining features of EU citizenship. For many EEA national children residing in the UK, however, this citizenship may become fraught with practical, evidential, and legal complexities which can amount to a complete barrier to exercising that citizenship. Below I detail some of the many areas of ambiguity that could affect children residing in the UK in the near future, and I lay out several practical pieces of knowledge and avenues of investigation that anyone uncertain about the status of children under their care should find important.

Settlement?

Since 30 April 2006, EEA nationals who have exercised treaty rights for five years – for example by working (either full or part time), being self-employed, or by studying (and having comprehensive sickness insurance) – automatically obtain rights of permanent residence in the UK under EU law. A person with permanent residence is considered by the government to be ‘settled’ in the UK. While it is possible that any settlement adopted by the UK government as part of the Brexit negotiations will apply to those who can prove their presence in the UK before a certain date, it has also been suggested that permanent residence, and not just presence, should be the test. As such, while a person does not need to apply to the Home Office for documentation, there has understandably been an increase in the number of people who want recognition of their automatic rights of permanent residence confirmed in writing.

Derivative rights

While the right of EEA nationals to reside in the UK under freedom of movement is codified in various EU directives, other forms of status are derived from other sources. ‘Zambrano’ leave, for example, allows a single parent from a non-EU state to remain in order to make it possible for a British citizen child to reside in the UK, and is the result of a judgment of the Court of Justice of the European Union. These residence rights allow that parent to work, but do not allow access to public funds and do not lead to settlement. While the details of settlement for EEA nationals already in the UK remain to be seen, it is also unclear what will happen to vulnerable individuals with EU-derivative rights.

Likely impacts on families

The EU Citizens’ Directive (2004/38/EC) provides that it is not just EU workers who get free movement, but their families too. EU citizens have the right to be joined by their spouse, any children and step-children who are under the age of 21 or still dependent, and any other dependent relative of the EEA national and their spouse, even if that spouse is not a citizen of an EU member state. In practice, this means that there are a great many people in the UK who are dependent on EU rights who are not citizens of EU member states themselves, many of whom are children and young people.

Some of the most vulnerable individuals post-Brexit are EEA national children who are in local authority care following abandonment or the breakdown of a family unit.

Where family members join an EEA national already in the UK, they will not all necessarily become permanently resident at the same time. So even where the permanent residence of a head of household has been acknowledged, the status of family members may still be contingent. Dependent children and young people in these circumstances are especially vulnerable in cases of family breakdown.

Children in local authority care

Some of the most vulnerable individuals who stand to have a precarious status in the UK after Brexit are EEA national children, or children that are in the UK as an EEA national family member, who are in local authority care following abandonment or the breakdown of a family unit. Such separated children had complex legal cases even before the referendum, as their rights to reside in the UK and to access public funds may have been based on the exercising of treaty rights by parents from whom they have been separated.

Some of these children could already be British citizens and not know it, and it is absolutely vital for those children’s futures for them to receive quality legal advice and representation as soon as possible. As with adults, the right of an EEA national child or young person to reside in the UK is determined by whether or not they are exercising their treaty rights. If those treaty rights disappear or go unclaimed, children about to turn 18 and thus leave care risk losing entitlement to both leaving care support and mainstream benefits.

Do you know your nationality?

Some EEA national children in the UK are already British, but do not know it. Knowledge of UK nationality law is variable even among established EEA migrant communities. This is understandable, because the rules relating to nationality are complex, have changed several times, and up until this point were often of secondary importance for those aware of their EEA national status. However, it is important that families know their rights.

Children who were born within the UK after 1 July 2006 to a parent with permanent residence at the time of birth are British citizens and can simply apply for a British passport. For children born between 2 October 2000 and 1 July 2006, the child is British if their mother had permanent residence at the time of birth, or if their father had permanent residence and their parents were married or later married. Before 1 October 2000, all children born in the UK to a parent exercising treaty rights were automatically British citizens.

In other cases, EEA national children may be eligible to become British citizens by registering and paying a fee. This is the case, for example, for children born in the UK to an EEA national parent who became settled after the birth of the child. It is also the case for children who were born in the UK and lived here continuously for the first 10 years of their life – no matter what their nationality.

There are likely to be a great many British national children whose families are not aware of their nationality, and who as a result may never exercise their right to British citizenship.

EEA national children who do not fall into any of the above categories still may have a route to British citizenship ‘at discretion’. Under Section 3(1) of the British Nationality Act 1981, the secretary of state has the power to grant citizenship to any child “if he thinks fit”. In practice, the most important factors in this decision include the child’s future intentions, length of residence in the UK, the citizenship and immigration status of the child and their parents, the child’s ‘good character’, and any exceptional circumstances. This power is of particular importance when considering children who are in the care of the state whose future clearly lies in the UK.

In an uncertain world, citizenship is the most stable form of status that a child in the UK can have. It cannot normally be rescinded, and allows a child to come and go from the UK regardless of the outcome of the UK’s negotiations while leaving the EU. However, while the UK does not place any restrictions on holding UK nationality alongside another, other countries can sometimes have rules preventing citizens being ‘dual nationals’. This is important and should always be investigated before seeking British citizenship.

What can be done to support vulnerable children?

EEA nationals of all ages must wait to hear the full extent of the damage wrought on their lives by the referendum vote of 23 June 2016. Some children growing up in the UK are at risk of losing rights to settlement and citizenship once the formal exit of the UK from the European Union has taken place. There are, however, some things that can be done to secure and promote the rights of these children before it is too late to do so.

Check whether the child is already British. As noted above, nationality laws are complex and have changed much in recent years. However, there are likely to be a great many British national children whose families are not aware of their nationality, and who as a result may never exercise their right to British citizenship. Nationality is a crucial question for children in the care of the state, and social workers and others working with these children have a duty to explore all legal avenues that may lead to security and permanence for vulnerable children.

Help separated children to evidence their permanent residence. Even when an EEA national child is taken into care, their rights are linked to their parents’ exercising of treaty rights. It is vital to get evidence from the child’s parents at the earliest possible opportunity in order to establish a child’s legal status in the UK, especially where the family relationship is at risk of breaking down further.

Help children and young people to understand their own rights under EU law and how to effectively exercise their treaty rights. Where a young person is an EEA national with rights that are dependent on their parents, it should not be forgotten that that young person also has the potential to exercise treaty rights whilst the UK remains a member of the EU, and therefore gain control of their right to reside for themselves. For some young people, working part-time is a means by which they can move from precariousness to security. Young people should be helped to understand their own rights under EU law. In the face of so much uncertainty, knowledge really can be power.

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