The fate of EU migrants in the UK has been thrown into confusion by Downing Street’s announcement this week that freedom of movement will end immediately in the event of a no-deal Brexit on October 31. This significant toughening of the previous immigration strategy has unsettled employers and caused considerable anxiety among EU nationals living in the UK.
It is not clear exactly what the government intends to do — the cabinet is still discussing the details. The prime minister’s spokeswoman said the new approach would involve more stringent criminality checks on incoming migrants, but there is currently no mechanism to carry out such controls at the border.
Immigration experts warn, however, that there are no shortcuts to impose enforceable curbs on new EU migrants without lengthy and controversial legislation which may prove difficult to pass before the deadline.
What has the government promised?
EU citizens will still be able to come to the UK for holidays and business trips without a visa, but there are to be unknown restrictions on those planning to stay for longer periods to work and study.
But, somewhat perplexingly, the Home Office confirmed there will be no change in the December 2020 deadline for EU nationals to apply for settled status, the legal mechanism allowing those already resident to continue living and working in Britain after Brexit.
It is unclear though how, from the end of October, the government will differentiate between settled EU residents who have yet to apply for settled status and newly-arrived EU migrants.
How does this differ from what had been planned?
The no-deal immigration policy of Theresa May’s government involved a gradual transition away from free movement rather than a hard stop. EU migrants who wanted to work or study in the UK for more than three months would have had to apply for temporary visas allowing them three years’ leave to remain with no enforcement action imposed until 2021.
The new government has rejected this idea, along with separate proposals for an extension of free movement until January 2021, according to reports in The Times. Instead, ministers have apparently asked officials to look at how to bring a “symbolic” end to free movement starting on the first day of a no-deal Brexit.
What could change from October 31 after a no-deal Brexit?
If ministers are serious about ending free movement, they will have to introduce curbs on EU migrants seeking to live, work and study in the UK for more than three months. This would necessitate legislation requiring employers and landlords to check that their EU staff and tenants had the right to be in the country.
EU residents would have to show they had secured settled status. This would be difficult because of the December 2020 deadline to apply. Meanwhile, new arrivals from Europe would have to obtain a visa or work permit. This would be extremely challenging to implement because the future immigration rules governing EU nationals are not yet agreed — let alone up and running.
The CBI and other business groups have expressed concern about how employers can plan future recruitment with changes being imposed at such short notice
Can the changes be made in time?
It seems unlikely. Joe Owen, Brexit director at the Institute for Government think-tank, said the plan was “nearly entirely impossible” because of the need for new legislation that could be held up or derailed by MPs hoping to stop a no-deal Brexit. Even if such legislation did pass, it would be open to legal challenge.
Mr Owen pointed out that the last big change in the immigration system took almost four years to roll out, while the government took almost two years to put together the post-Brexit immigration white paper, which parliament has yet to approve. In light of this, he said, it was improbable that ministers could design, build and roll out a new system in just 10 weeks.
Once ministers realise how difficult it will be to implement their tougher regime, they may well have to accept that free movement will have to continue in some form well beyond October 31.
What does all this mean for EU nationals resident in the UK?
It raises many questions which the government has not yet answered. The3million, which represents EU citizens in the UK, said the idea of ending freedom of movement abruptly on October 31 was “reckless politics” which “hollows out” prime minister Boris Johnson’s unequivocal guarantee given to EU nationals only three weeks ago.
“Ending freedom of movement without putting legal provisions in place for those EU citizens who have not yet successfully applied through the settlement scheme will mean that millions of lawful citizens will have their legal status removed overnight,” the group said in a statement. The3million warned that this could open the door to “mass discrimination . . . with employers, landlords, banks and the National Health Service unable to distinguish between those EU citizens with the right to live and work in the UK and those without.”
Only 1m of the estimated 3.6m EU nationals resident in the UK have applied for settled status. Even if all remaining EU citizens applied immediately, the Home Office would have to speed up its processing rate more than tenfold in order to register them by October 31.
Those most likely to face problems are current EU residents without settled status who are seeking to move jobs or find new accommodation in the immediate aftermath of Brexit.