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I moved to the UK 20 years ago when I was a 14-year-old child. I settled here - studied, worked, started my own business, had kids and so on.

Because of the EU membership, I was guaranteed equal treatment with nationals in access to employment, working conditions and all other social and tax advantages.

Now, because of Brexit, I have been told that in order to stay I need to apply for settled status. Isn’t this discrimination since nationals do not have to apply? Isn’t the UK Government breaking the law?

I am very worried and distressed at the idea of having my name and personal details in such register. With this scheme, is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing?

Is there any ground for challenging this scheme legality in court?

Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)?

Edit - clarification

Some suggested I naturalise but I don't want to because I don't feel the UK is my homeland and I don't share some British values (for a start, I am not a royalist so I would have a problem with the registration oath...). Also, there is a considerable cost associated to this process.

Edit - ask for clarification

Some suggested that

discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race)

Article 14 of ECHR prohibits discrimination based on:

"sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status"

Would you not consider EU Citizens residing in a foreign country of other national or social origin or even just of other status?

Also:

The European Court of Human Rights has ruled that European Union member states cannot consider the nationals of other member states to be aliens

Doesn't the settled status scheme contravene this, while the UK is still part of the EU?

  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Oct 16 at 7:45
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Isn’t this discrimination since nationals do not have to apply?

Yes it is discrimination. But that does not make it illegal. In fact discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race).

And in general, all of the countries in the world allow and enforce discrimination based on nationality; for example non-nationals will not be able to run for Head of State (and additional restrictions may apply).

The EU members allowing similar rights to the citizens of other EU countries is the exception, not the rule, and once the UK stops being bound by EU treaties it can impose its own legal system on non-nationals. And while EU treaties give lots of rights to EU member-countries citizens, they still allow for discrimination based on nationality (for example you cannot run for Prime Minister or MP of Spain as a foreign EU resident).

Isn’t the UK Government breaking the law?

This could go against EU treaties, but the point is that the UK will no longer need to comply with them.

is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing?

No, the UK Government is not responsible if you do not like its laws to the point that it affects your health.

Is there any ground for challenging this scheme legality in court?

Unlikely. In any case it will not be because you are frightened by it, any challenge would be in the grounds that the government actions act against some other UK law. For example, if the decision to make such a list was made by the Executive but it contradicts some law approved by the Parliament. If this list does not contradict any law, then there are no grounds for challenging it.

Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)?

If you do not apply you will not have any evidence that you were settled, and the government could legitimately believe that you are irregularly in the country and try to expel you; you probably would have an opportunity to prove that you were settled even if you were not in the list but that could be way slower, more expensive, riskier and stressful than just registering now.

Get this clear: that settled person list is to help you to show that you were a UK resident before Brexit and to give you the protections that are being negotiated between the UK and the EU for expatriates. Probably you could choose not to enlist, but it would work against you.

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    The only clear fact here is that even though the list might have been originally created to help, there are not guarantees that it won't be used to discriminate further against settled Europeans in the future... – Leo Oct 13 at 20:30
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    that settled person list is to help you to show that you were a UK resident before Brexit — except that there is no system in place to prove that one has settled status, which means it become impossible for landlords, banks, and employers to fulfill their requirement to verify that their tenants, customers, and employees are legally in the country, which means it may become de facto illegal for any EU citizen to live in the UK, until a system to prove settled status is implemented (and it will also be impossible to restrict freedom of movement). The system is very frightening (I left). – gerrit Oct 14 at 7:14
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    @gerrit There's no need to prove settled status until the Government/Parliament/the Courts decide that there is. That won't happen for some time: the Government itself says "The deadline for applying will be 30 June 2021, or 31 December 2020 if the UK leaves the EU without a deal." Only after those dates will you need to prove that you have already applied for settled status; and there may well be a six- or twelve-month grace period for new residents after that deadline, as well. – Andrew Leach Oct 14 at 8:25
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    @simonatrcl How recently have you lived in rentals? Thanks to Theresa May's "hostile environment", landlords must now check that tenants have the right to rent. See gov.uk/check-tenant-right-to-rent-documents (there are some exclusions, which may have covered you.) – Martin Bonner supports Monica Oct 14 at 13:19
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    @Leo: You seem to intentionally dodge any point that is made which disproves your claims, through funny comments or shifting towards what happened in another era. This is not a productive question and you are unwilling to actually have your question answered in any way other than what you've already decided. – Flater Oct 15 at 12:19
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I need to apply for settled status. Isn’t this discrimination since nationals do not have to apply?

Yes it is.

Isn’t the UK Government breaking the law?

No, discrimination is only illegal when it applies to specified classes (race, sex etc.) is specified situations (employment, access etc.). It is not illegal for immigration to discriminate against foreigners.

I am very worried and distressed at the idea of having my name and personal details in such register. With this scheme, is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing?

Not unless there is a law that says it is. If the law were applied to you specifically in an arbitrary or capricious way there may be a claim but that seems unlikely.

Is there any ground for challenging this scheme legality in court?

Not that I can think of.

Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)?

No

How about if I was refused, re-entry or access to public services (NHS for example)?

No

Essentially, if you are not a citizen of a country, you are in that country on whatever terms and conditions that country sees fit to impose. Historically, EU citizens have had a privileged status but the legal obligation to maintain that status ends with the end of the UK’s membership. At present, the UK’s intention is that the privileged status will continue for those presently in the UK so they need to know who that is. Of course, a future government may change the law: if it’s your intention to remain in the UK permanently you may want to consider taking out UK citizenship.

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    I think this is unnecessarily negative and ignores the ECHR angle; someone deported away from their children does have a very strong Article 8 claim and a lot of people have won on this basis. – pjc50 Oct 14 at 9:54
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    @pjc50 A lot of people have lost too. I think the answer is about right. – Martin Bonner supports Monica Oct 14 at 13:20
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    Actually there is a convention, greatly pre-dating the EU, that if a person acquires rights under a treaty, they will not automatically lose them if the treaty is later abrogated. But by applying for settled status, you are converting a somewhat vague right under an ancient international convention, into a definite status under UK law. That's surely better! – nigel222 Oct 16 at 13:30
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I want to answer one part missed so far:

Isn’t the UK Government breaking the law?

Currently, if the UK Government would be requiring this from you, they would break the law. Laws made by the EU.

After the Brexit, the UK isn't part of the EU anymore. EU law doesn't concern them. The only law they could break is the law of the UK. And because the law of the UK is made by the parliament in the UK, they will make sure that they don't break it.

You have no right to be in the UK, unless granted by some law (made entirely by the UK post Brexit).

The only thing you can do if you want to enjoy the protection of the EU law post Brexit is leave the UK and move to the EU!

5

discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race)

sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status

Your assumption is that you are treated differently from your neighbors because they are British and you are not.

However, as I have already written in a comment, this is a wrong assumption:

Your nationality is not the real reason for the different treatment.

You are treated differently from your neighbors because they are living in their "own country" while you are living in a "foreign country".

Article 13 of the Universal Declaration of Human Rights explicitly states that you are allowed to "return to your country" but there is no article that states that you are allowed to enter a "foreign" country.

This means that the Universal Declaration of Human Rights does distinguish between "one's own country" and "foreign countries" (at least in the case of the question if you are allowed to stay there or not).

The European Court of Human Rights has ruled that European Union member states cannot consider the nationals of other member states to be aliens ...

As far as I understood you correctly, you don't need this registration if you want to leave the UK before the Brexit.

You will need the registration now to be able to prove that you have already lived in GB today when the Brexit is over.

After Brexit GB will no longer be an EU member, so you cannot argue that an EU member country has to follow certain rules. The British government will be allowed to set rules as they like.

If they want you to prove that you have lived in Britain before the Brexit by submitting documents that show that you have registered before the Brexit, they are allowed to do this.

  • The argument that nationality isn't the real basis for discrimination is ill founded, since nationality is the basis for determining whether someone is in his or her "own country." – phoog Oct 15 at 14:55
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    phoog's right, though I think Martin was trying to make the reasonable distinction that it's not just "what your nationality is" that's important, but "whether your nationality is the same as the place you're in". Those are two subtly different things. Maybe. – Lightness Races with Monica Oct 15 at 18:12
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Human rights are red herring here. Your human right is to stay in your own country, not in a country of your choosing (in this case UK). You're requesting a privilege beyond human rights.

All other rights and privileges are given to citizens by the state. A non-citizen has no such rights by default. UK had chosen to grant you some rights by the means of international agreement with other EU countries. As this agreement is under process of being dissolved, so are your rights stemming from it. UK is in power to deport you after Brexit. Instead, they have chosen to grant you another privilege, this time on the basis of registration instead of your citizenship of another EU country.

You're not being illegally discriminated against. The future difference of treatment you vs UK citizens comes from the simple fact that they are citizens in their own country and you're a foreigner. That's not discrimination. You can chose to not register now and go back to homeland after Brexit, thus retuning things to where they should be: UK citizens in UK, citizens of your country in your country.

If you feel that UK is your homeland, then appropriate course of action is to adjust legal status to reflect real status, e.g. eventually apply for citizenship. Spending all your life in a country you're not citizen of is betting your life on a sandcastle. There is nobody to be blamed for that but you. Seriously, you're just a guest in your own home.

As I understand it now, this less of a legal question and more of a feelings question. I get it. Your whole life is threatened. That's immense pressure I can't even imagine. And you're displaying a standard human response of trying to fight back. You're trying to throw a punch at anything and the closest thing that you can see is the settlement scheme. However, just like in real life, the thing that's closest to reach is usually not the culprit but things or people coming to help you. So is the settlement scheme. What are you trying to achieve by stabbing the lifebuoy? Let's imagine that you manage to successfully sue the violation and get the whole scheme overturned: all data registered so far deleted, etc. Where would that get you? That after Brexit neither you nor most other EU citizens will have any claim to continue residing in UK and get deported immediately. Your true enemy is the Brexit itself, not "Brexit fallout damage control scheme".

To answer your edit: the Scheme is not required now. As long as UK is in EU, it's non-mandatory, you can live your life as you were, therefore there is no different treatment of UK vs EU citizens. After UK leaves, they won't be bound by this article, so again no illegal discrimination will happen.

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    I don't feel the UK is my homeland and I don't share all the British values (for a start, I am not a royalist so I would have a problem with the registration oath...). I am European. I am in the UK for work and my partner and children are UK citizens. Our life is here. The idea that a government can grant you rights and then revoke them later on, seems unethical and unjust to me. – Leo Oct 14 at 12:20
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    It is absolutely not guaranteed that every EU national currently resident in the UK is even eligable for citizenship. You cannot insist people apply for a status that is closed to them. – pjc50 Oct 14 at 13:25
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    @Leo unfortunately, all rights are temporary and subject to be revoked. E.g. Indonesia is moving towards revoking right to have sex without state approval (aka marriage). Your right was always hinged on condition that both your country of origin and UK stay in EU. It's not USA where Civil War established precedent that member country cannot leave. – Agent_L Oct 14 at 13:37
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    "The difference of treatment .... That's not discrimination." Yes, it is. Discrimination is a synonym of difference of treatment. What it isn't is illegal (or, for that matter, unlawful) discrimination. – Peter Taylor Oct 14 at 13:42
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    "... is creating a legal fiction, and fiction always loses when confronted with reality." Are you using "legal fiction" in the legal sense of the term, or are you trying to say something more general like "you are living a lie"? If the legal sense, I think you have either misused the term or not explained why there would be a legal fiction involved. Your added "... and fiction always loses when confronted with reality" makes the paragraph even more awkward, especially if you are attempting to use "legal fiction" in the actual legal sense. – Aaron Oct 14 at 15:53
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Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)?

To answer only this part of the question, the answer is potentially yes. It's not unusual for immigration decisions to be overturned on Human Rights law grounds. However, it can be an extremely rough process if you're not allowed to work or rent while you're appealing. And it costs money.

3

Now, because of Brexit, I have been told that in order to stay I need to apply for settled status. Isn’t this discrimination since nationals do not have to apply?

Yes, requiring you to apply for settled status is discrimination. It is well established that a country may discriminate against foreigners by imposing conditions on their presence in its territory. However, EU citizens, as you note, have additional rights to be present in EU countries even if they are not nationals of that country.

Isn’t the UK Government breaking the law?

No. You do not need to apply yet. Applying for settled status will only become mandatory at some point after the UK leaves the EU, when the UK will no longer be bound by EU law not to discriminate against EU citizens.

The ability to apply earlier is simply an administrative convenience for the UK and an opportunity for EU citizens living in the UK to have some peace of mind.

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The short answer is yes, at the moment. Take for example the situation you describe where you were deported and forced to abandon your children (who are presumably British). Under current British law, which includes the Human Rights Act, you would likely have a very strong case to make on the right to family life.

The problem is that as soon as the UK is out of the EU it can ditch human rights, and the Tory government has indicated that it would like to do just that.

Being a member of the EU requires a country to adopt the European Convention on Human Rights. Once the UK leaves the EU the obligation is removed. Without the protection of the EU the British government is free to abuse you this way.

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    The ECHR is not an EU construct. – cpast Oct 14 at 12:42
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    Correct, that's why I pointed out that countries are obliged to sign up to it as part of their EU membership. Once out of the EU that obligation will be removed. – user Oct 14 at 15:11
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    @cpast But is this answer incorrect in stating that "EU requires a country to adopt the European Convention on Human Rights"? Or on stating essentially that UK law does include the human rights but is able to drop that post-Brexit? If the answer is not incorrect on those points, then "The ECHR is not an EU construct" does not invalidate the answer and is simply an interesting bit of trivia on the side. – Aaron Oct 14 at 15:56
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    @cpast see the references, the Tories want to get rid of human rights but need to leave the EU to do it. – user Oct 15 at 9:18
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    @Aaron see the references. Several senior Tories have stated that they wish to repeal the Human Rights Act and replace it with something inferior, not based on the ECHR. – user Oct 15 at 9:19

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