Can the Government end freedom of movement immediately in the event of a No Deal Brexit? Almost certainly not – or at least not in a way that would meet most people’s common-sense intuitions about what that would mean.
So the political message from new Home Secretary Priti Patel that the Government is determined to do just that, risks significantly over-promising on how quickly the Government will be able to deliver significant new controls on EU immigration.
Of course, the Government’s commitment to new immigration rules for post-Brexit Britain is no surprise. A loss of public confidence in how successive governments have handled immigration was one key to the 2016 referendum result. So there is an expectation of change after Brexit. It is subject, however, to an important principle about the past and the future: that a democratic decision to have new immigration rules in the future should not affect the lives of Europeans already living in Britain. This principle commanded all but universal political and public consent both before and after the 2016 referendum, across the referendum and party tribes.
Intuitively, that principle would seem to support the idea of new rules coming in straight away when the UK leaves the EU. In practice, keeping the commitment to Europeans already in Britain requires a different approach.
Unusually among EU member states, the British Government has never had a registration scheme for those exercising freedom of movement. So registering the 3.5 million Europeans in Britain for the Settled Status scheme is now the biggest administrative task undertaken by the Home Office. The Government feels it has made a pretty good start – announcing that one million people have been granted a status under the scheme in the first five months. The biggest challenge to the Settled Status scheme is that even a 95% success rate – unprecedented in any comparative exercise – would leave over 150,000 people, who currently have legal status, without it: a much bigger issue than the Windrush scandal.
People have until December 2020 to apply – and the Government has been clear that EU nationals with the right to live and work in Britain will not need to do so before then. Moving the deadline forward by 15 months would be an absurd recipe for chaos. That sounds like the necessary implication of its new announcement, but the Government has stated that it has no intention of doing that. The system would fall over if it was trying to increase the pace from averaging 200,000 cases a month to registering over a million people per month in September and October.
The message that Europeans in Britain are valued and welcomed has been strongly re-emphasised by Boris Johnson. Along with Michael Gove and their Labour colleague Gisela Stuart, Johnson was a leading signatory of a Vote Leave pledge in June 2016 promising Europeans that they would be able to carry on with their lives in Britain with no changes at all. Few now recall that Boris Johnson himself cast a symbolic vote with the Labour Opposition, days after the 2016 referendum, to emphasise his view that the Government should make an immediate, unilateral guarantee to EU nationals to keep the spirit and letter of that pledge. The Prime Minister is thought to be sympathetic to Michael Gove’s argument that Theresa May was too slow to guarantee the right to stay: Gove is promoting the idea that the Government should offer free citizenship to EU nationals in Britain.
How can this circle be squared between the future and the past? The Government did quietly publish a No Deal immigration plan last January that found the only viable solution to the tension between the Government’s commitments to existing EU nationals and its desire to design a new post-Brexit system.
It could be possible to end “EU freedom of movement” in EU law, technically, as long as UK law lets Europeans move freely to the UK until the end of 2020, with no more documentation than an EU passport or identity card. Crucially, the plans involved no employer or landlord checks until the end of 2020 – since it will simply be impossible to tell existing residents and new arrivals apart.
The Government will – if it chooses – be able to point to several ways in which the rules will be different for new arrivals, noting that it has indeed ended free movement “in its current form”. It could create a new, mandatory registration scheme for new arrivals staying in the country for three months or more (though it will need a UK-EU deal on information sharing to have the databases to fulfil that). And those who arrive after Brexit are unlikely to be automatically guaranteed the chance to settle permanently in the UK – unless they meet criteria set out by the government.
Of course, the simple, practical point is that it will be impossible to design, implement and communicate a new immigration system in eight to ten weeks’ time. The Government was quite slow to develop its plans on post-Brexit immigration after the 2016 referendum. A White Paper did eventually appear just before Christmas, though it left many of the details of the future policy for a year-long consultation process. The Johnson administration has now taken that back to the drawing board – asking the Migration Advisory Committee for new analysis on whether an Aussie-rules points system could be translated to the UK context.
Delivering controls on immigration often seemed to be Theresa May’s sole overriding priority in determining what Brexit would mean. If the new Prime Minister has often spoken of himself as being among the most pro-immigration politicians, he is also clear about the value of having control over migration, and recognises that one of the lessons of a Australian-style points system is that a well-managed immigration system can promote the benefits of immigration too.
The next set of quarterly net migration figures are published this week. This will be the first time since 2010 that the government has not missed its net migration target – thanks to Boris Johnson’s decision on day one of his premiership to consign the impossible target to the dustbin of history. The lesson of that missed target is that you don’t rebuild public confidence by over-promising and under-delivering on immigration. What the Government can do, before Brexit Day, is unveil its plans for the new immigration system it wants to have up and running by the start of 2021 – keeping its promise, to Europeans living here, that it welcomes their contribution to Britain.
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