Critical socio-legal theories in EU citizenship: explicating the gendered elements of free movement

Adrienne Yong |

The content of this post was presented at the launch workshop of the EUFutures Research Network held at City, University of London on 4 November 2022. This is an amended version of a post originally commissioned by City, University of London, published here.

When the UK went to the polls on 23 June 2016 and voted to leave the European Union, the millions of EU citizens who were resident in the UK but unable to take part in the referendum were suddenly faced with a life-changing loss of rights. The end of freedom of movement threatened their livelihoods and their very status as UK residents in the post-Brexit world.

After several years of uncertainty, many of those EU citizens and their family members were able to secure their UK immigration status following the launch in March 2019 of the Government’s EU Settlement Scheme (EUSS), which sought to protect the rights that EU citizens and their families had previously enjoyed in the UK. By the time the scheme closed in 2021, some 5.75 million individuals had submitted applications and 5.3 million grants of status had been issued – either settled or pre-settled status. The Government lauded the high numbers, describing the process as “hugely successful.”

Nevertheless, hundreds of thousands of people still managed to fall through the legal cracks and failed in their applications, raising questions about whether certain types of applicants were more disadvantaged by the EUSS process than others.

The research that I carried out focused on immigrant women in this process, and I concluded that they were disproportionately represented in the group of unsuccessful applicants and that women who were the most vulnerable fell outside the legal protection that the EUSS was meant to provide. This was my first publication that went beyond just the traditional doctrinal analysis of the law, and instead adopted a critical socio-legal approach.

I applied a theoretical intersectional feminist lens to the plight of two groups of vulnerable immigrant women who were required to apply through the EUSS to remain in the UK after withdrawal – those at risk of or experiencing violence against women and girls (VAWG) and those who were a non-EU family member (NEFM) of an EU citizen. This was to highlight their unique experiences of the law under the EUSS, noting that it was their identities as immigrant women in a post-Brexit Britain which brought about greater vulnerabilities, attributed to the way the law itself applied to them.

The EUSS operated as a fully digital system to make the application process as smooth as possible for those who fulfilled the three main criteria – proof of identity (ID and biometrics), eligibility (residency in the UK) and suitability (proof of good character).

In certain exceptional circumstances, paper-based applications were required – for example, if the applicant did not have digital access, did not have an ID document or whose rights were based on a dependency on an EU citizen (as in NEFMs). By noticing that vulnerabilities arose out of the intersection between one’s immigrant status and gender in this context, I argued that the criteria discriminated against vulnerable women from the VAWG and NEFM groups because they were more likely to have to apply on paper.

I argued that simply extending the criteria under the EUSS did not necessarily achieve the desired take-up of applications because many women would not have understood or even known about the new criteria applicable to them in light of Brexit. By adopting a critical approach that takes into account the fact that vulnerable women are being made more vulnerable by the very reason of their identities, this brought to the fore how intersectional qualities had not been considered by the Government in their design and implementation of the EUSS.

One of the key methodological challenges in analysing the outcomes of applications by women was the absence of any gender breakdown in the quarterly EUSS statistics, while paper applications were not included in the data until more than a year after the EUSS launch, without detailing the success of paper versus online applications. Whilst a Freedom of Information (FOI) request by Professor Catherine Barnard and Fiona Costello revealed that paper applications were significantly less likely to be successful than the online route, my central thesis that vulnerable immigrant women were disadvantaged by the EUSS process was also reinforced through critically assessing how the criteria would apply to the two groups in question. Highlighting their intersectional identities and the vulnerabilities associated with them was a primary part of the central thesis.

I also faced challenges in deciding where to publish this paper, given my decision to adopt a non-doctrinal approach to an area where law and its technical doctrine dominated, and to an extent, still dominates. The area of EU law is largely saturated by scholars engaging in technically precise doctrinal work, and sometimes to the absence of situating the law in its societal context. This is also notable by the dominance of journals privileging doctrinal approaches to matters of EU law, something that proved a challenge in publishing this paper. This led me to a non-EU specialist journal, and instead to a top journal in socio-legal approach to law – Social & Legal Studies.

The area of free movement and associated field of EU citizenship can be more critically analysed with the adoption of methodologies beyond just those which dominate the field of EU law. My paper contributes to uncovering the gendered aspects of free movement, in the context of the UK’s withdrawal from the EU and its associated governance and policies. Given the human aspect of Brexit in regards to its visceral and very real effects on the lives of EU citizens in the UK, I felt it was necessary and important to adopt a critical approach, particularly one looking at intersectionality to highlight the difficulties of the most vulnerable and often overlooked.

To read Dr Yong’s published journal article entitled ‘A Gendered EUSS: Intersectional Oppression of Immigrant Women in a Post-Brexit Britain’ in Social & Legal Studies, please see here.