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Alberto Costa: "If we get it wrong on settled status, it could be Windrush writ large"

Alberto Costa: 'If we get it wrong on settled status, it could be Windrush writ large'

Emilio Casalicchio

9 min read

Alberto Costa believes the Settled Status scheme for EU nationals is a new Windrush scandal waiting to happen. The former government lawyer – whose family came to Britain from Sicily in the 1960s – tells Emilio Casalicchio that the Conservative party must start reaching out to the 3.6 million EU nationals living in the UK – or face the political consequences

The parents of Tory MP Alberto Costa left Sicily in the mid-60s for a better life in the UK. Parting ways with the beautiful fishing port of Trapani, where his father comes from, and the hillside paradise of Monreale where his mother grew up, may not have been easy.

But the employment opportunities in the UK and the promise of a more prosperous life for their children was for them – as it is now to thousands of European citizens – too good to pass up.

Back then, before the UK was even a member of the European Economic Community, they needed an employment offer to come to the UK in the first place. And after a few years of work they were granted indefinite leave to remain – the right to stay in the country on a permanent basis to work and study at will.

The Costa family lived in Glasgow as they raised their children. Mrs Costa fused British cuisine with her Italian heritage to make novel concoctions that kept dinners exciting. One speciality – dubbed the ‘Italian flag’ – saw tinned hot dogs, mashed potatoes and peas lined up to resemble the national banner. She also collected royal memorabilia. It was a household that fused Italian and British culture seamlessly.

Mr and Mrs Costa thought their home and their futures were guaranteed. And then in 2016 – some 50 years after they made the journey from Italy – Britain voted to leave the EU.

The seismic decision threw EU nationals who had lived in the UK for years into a world of uncertainty. For months after the referendum result, Theresa May insisted the rights of citizens living in Britain had to be negotiated with the EU – to ensure the protection of rights for British nationals living on the continent in return. Then eventually, in mid-2018, the PM announced the Settled Status scheme.

It meant Mr and Mrs Costa – and every other EU citizen living in the UK for five years or more – would have to re-apply for their right to live in Britain. For most people in their 70s, the task would be no mean feat. But luckily for the Sicilian couple, their son had become an MP.

As the Tory Member for South Leicestershire since 2015 and a former government lawyer representing the Home Office, Alberto Costa understood the ins-and-outs of the proposal. In an impressive parliamentary feat earlier this year, he won cross-party support from the likes of Jacob Rees-Mogg, Jeremy Corbyn and Nigel Dodds for an amendment securing the rights of EU nationals even under a no-deal Brexit.

Theresa May eventually caved and accepted the amendment – but not before Costa was forced to resign as a Parliamentary Private Secretary at the Scotland Office – under the convention that those on the Government benches cannot amend executive motions.  

But it was while helping his parents sign up for Settled Status during the scheme’s trial period that he noticed some of the potential flaws in the new regime that could have a dangerous impact on EU citizens living in Britain after Brexit.

“I used my parents as guinea pigs,” he tells The House in his Norman Shaw South office on the Parliamentary estate. “I went through the process and on both occasions it didn’t go through as smoothly as it ought to have for various software glitch reasons. It’s not as straightforward as the Government likes to think it is.”

The example Costa gives is that his mother – like most Italian women – kept her maiden name when she married his father. It still shows in her Italian passport today. But when she came to Britain, HMRC signed her up for a national insurance number under her married name. The discrepancy left a slight crack in the pavement for the Home Office to trip over during the Settled Status application process – a crack that required follow-ups and more documentation.

“It must be within the knowledge of the Home Office in creating a system like this that there are these [cultural] nuances in the other 27 member states,” Costa explains. “And if we don’t take these nuances into account, potentially there is an argument to say there is discrimination.”

The ramifications for Costa – who has seen the Home Office legal system up close – are huge.

“Putting a legal hat on, it doesn’t require much imagination to envisage a tsunami of litigation against the Government if rights are changed and found to be in breach of the Human Rights Act, or indeed discriminatory,” he says.

“My concern as a politician is that the Conservative party in Government must minimise the risk of litigation being brought in the months and years ahead by a very large number of disgruntled people who may have a case in law to raise against the Government.”

But Costa’s concerns go much wider even than the Government legal bills. The big worry among experts is that EU citizens miss the deadlines for registration and end up in a legal limbo. The scheme opens fully on 30 March and hopefuls currently have to apply before 31 December 2020 if the UK quits the EU without a deal and by 30 June 2021 if an agreement is in place. Zeena Luchowa, a member of the Immigration Committee at the Law Society and a senior solicitor at the Laura Devine firm, told PoliticsHome this week that EU nationals who miss the window face a major threat to their rights. She explained that the most vulnerable – including the elderly, people in care and children whose parents do not realise they have to be signed up – are at the greatest risk.

Costa agrees – noting that many people of his parents’ age do not realise the scheme applies to them. He says threatening to strip people of their rights unless they re-apply is “surely un-British” and raises the spectre of a fresh Windrush scandal for those who fail.

“I think there is a real danger here that if the Government does not learn its lesson that it could become Windrush writ large,” he said. “The registration scheme and the danger of Windrush is that you potentially leave a very large amount of people who might not acquire these rights by the deadline of 2021 for whatever reason.”

But he has a proposed solution: overhaul the system. Costa wants to see the regime become declaratory to spare people the need to apply. It would mean EU nationals have their rights guaranteed automatically and will only need to sign up for Settled Status if they need new documentation for another purpose – for example to show a landlord. He is pressing Home Secretary Sajid Javid for the change and has prepared amendments to the Immigration Bill which will no doubt win cross-party support.

Costa warns that as well as an administrative nightmare, the current system could pose a major risk for the Conservatives at the ballot box. “I expect [Home Secretary] Sajid Javid to understand the potential toxicity that this has for the Conservative party,” he says. “If the Conservative party is to regain the trust of EU nationals who feel that their rights have been wrongly put on the table as part of a negotiated bargaining chip then I think Sajid Javid – or any other Conservative Home Secretary – should act quickly to ensure that we minimise any risk of angst and anger being felt, understandably, by EU nationals towards the Conservative government.” He adds: “We have changed the goal posts and we must pull out all the stops to mitigate any damage to the rights of EU nationals.”

His pinning the issue on Sajid Javid is not an accident. The Home Secretary is a clear Tory leadership hopeful and will have to consider the potential damage to his reputation if something goes awry. “Whoever wants to be leader of the Conservative party must understand that there are 3.6 million EU nationals,” he explains. “And if we get this wrong as a party this may become a deeply unpleasant political issue for us to deal with in the years ahead.”

He adds: “This is why, with the current Home Secretary Sajid Javid, I am doing everything I can to persuade him – for it is his decision – to introduce a declaratory system for EU nationals.”

But Costa wants Javid to go even further. He argues those who do apply for Settled Status under a declaratory system should be offered an open door to full UK citizenship if they want it and the freedom to apply for a British passport. He says the change is justified since the immigration “goal posts” are being changed for those who arrived under a different system.

“As a gesture of good will, those who are granted Settled Status should be given a bespoke path to British citizenship,” he says. “Thereby ensuring that the Conservative government is genuine in its policy that it wants to fully integrate and respect the rights of EU nationals.”

He adds a thinly-veiled hint that the move could be a boost for the Tories at the ballot box: “It means we give out citizenship with all the rights that that gives. And one of the primary rights is to register to vote in Westminster elections.”

The next step for Costa will be a fight to get his proposals embedded into the Immigration Bill. It might not be easy – especially as the scheme will be well under way by then – but he is driven by the worries of EU nationals in Britain, like his parents, who are concerned about the future.

“The anxiety that has been created out there is wholly unacceptable,” he says.

“We are where we are. But going forward this isn’t about my mother and father. This is about 3.6 million EU nationals here and over one million British citizens in the EU. We must ensure we get a deal on citizens’ rights.” 


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