Nine months on from the referendum and much ink has been spilled over the future plight of EU migrants. The government refuses to guarantee their rights until it has reciprocal reassurances from other EU countries. This argument does not bear the slightest scrutiny. To all intents and purposes, the government’s hands are tied, and it will have no choice but to guarantee EU residents’ future status soon. The PM should get on and do it, and grant them Deemed Leave on the day Article 50 is triggered.
The government has no choice but to guarantee EU residents’ rights for three reasons. Firstly, while we have a rough estimate that there are 3m EU nationals in Britain, we don’t know where they are. Free movement means exactly that, with no obligation to register with the Home Office or mark yourself out as an EU national. If the government were to make good on its implicit threat that EU nationals’ rights are no longer valid, it would presumably look to put that into action somehow and curtail these residents’ rights. Yet there is currently no way to establish who or where those people are.
Even if we could work out where they were, a system of registering 3m migrants who are currently not on the system would overwhelm the Home Office. The Migration Observatory has estimated that it would take 140 years at current rates to register all EU migrants in the UK. That would require a massive dedication of extra cash and mass recruitment of new staff. Hardly a priority at a time when the Home Office has, to put it mildly, some other jobs to be getting on with. Non-EU migration still runs way over the 100,000 target; it will have to come up with a successor system for EU migration post-Brexit; and negotiate fiendishly difficult agreements around the border at Northern Ireland and Calais. To say nothing of its ongoing responsibilities on counter-terrorism and policing. Now is not the moment to devote massive resources on a fool’s errand.
But let us set aside these practical concerns and imagine the PM did decide to make good on its implicit threat to EU residents, if she does not receive the reciprocal reassurances from the EU27. It would be diplomatic madness to start threatening the rights of EU residents. Is the UK really going to seek to expel law-abiding migrants who came to Britain legally, splitting up families and creating a public outcry, just because their home government refuses to guarantee Brits’ rights there? Are we really going to stop, say, all the Czechs in Britain using the NHS because Prague decides to play hardball? The idea would be patently ridiculous even if it were the only issue on the table, given all 27 EU countries are – and will remain – among Britain’s strongest political and economic allies. But even considering it as we are negotiating a generationally-significant trade deal which will depend upon unanimous agreement from the member states is for the birds.
So the Prime Minister will guarantee the rights of EU nationals eventually, not only because she doesn’t have the capacity to do otherwise, but because she would shoot her negotiators in the foot if she tried. The real question is how to do it.
On the day she triggers Article 50, Mrs May should grant all EU residents in Britain Deemed Leave.
Deemed Leave is a little-used part of the immigration system. It grants legal status to people who are here legally but whose original grounds for entry have expired. It is often used, for example, for diplomats at the end of their posting; their legal status here has evaporated and they are outside the immigration system, but we want to give them time to get their affairs in order. When we leave free movement, EU residents’ original reason for being here evaporates. But by granting them Deemed Leave, at a stroke the government will have guaranteed their rights as before.
The major advantage of Deemed Leave is that it is intrinsic to the person. You are deemed to have it by virtue of already being here, rather than because you fill out some form. Once it has granted it en masse to EU residents, the government can then set up a system for those with Deemed Leave to apply to get proof of it. This can be a simple, light-touch system: anyone who can prove they were resident in Britain before Article 50 is triggered, for example with a utilities bill or payslip, will be easily able to obtain proof of their rights. Because it is separate from EU rules around permanent residence, the form can be much simpler than the ludicrous 85-page from they are currently required to complete. Furthermore, Deemed Leave will decouple their right to be here from the two-year ticking clock of the Brexit process, reassuring anxious minds. That should give other EU countries the cover they need to decouple the rights of British migrants in their countries from the Brexit process. They could still be treated reciprocally, but not as part of the wider negotiations.
The current debate on whether to guarantee EU migrants’ rights tilts at windmills. The pertinent question is: how? Granting Deemed Leave to all Europeans who were resident here before the date Article 50 is triggered is a practical, reasonable way to do it.
Chris Murray is a research fellow at the IPPR.
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