During the referendum campaign, Boris Johnson, Priti Patel and Michael Gove stated that the 3 million or more EU citizens resident in the UK will automatically be granted indefinite leave to remain in the UK and “treated no less favourably than they are at present”.
Although this promise has been broken – the “settled status scheme” for EU nationals is not automatic by any means – it is the case that EU citizens here before Brexit day will be entitled to apply for settled status, even in the event of a no-deal Brexit, and this will secure their ongoing right to reside, work, and use public services.
In some respects, though, they will be treated less favourably. For example, they will lose some of their rights to be joined by spouses or other family members. Nor will this promise cover all the protections set out in the Withdrawal Agreement, such as those applying to rights of appeal.
While only one million people have so far applied to the scheme, the deadline for applications will be December 2020, and people who do not apply before then should not, in theory, be penalised in any way.
But EU citizens who arrive in the UK after a nodeal Brexit will be in a very different – and, at the moment, entirely unclear – position. Under the withdrawal agreement, those arriving immediately after Brexit day, but before the end of the transition period would have been able to apply to remain permanently.
With no deal – and no transition – this will no longer apply. The government has therefore recently stated that for new arrivals, “freedom of movement will end” in the event of a no deal.
But this tells us little about what will actually happen to EU citizens who seek to move here to work or study after 31 October. The problem is one of distinguishing between pre- and post-Brexit arrivals. After December 2020, when, at least in theory, all pre-Brexit EU arrivals will have applied for the settled status scheme, there will be a clear distinction between EU citizens who arrived before Brexit and those who arrived after.
Until then, however, it will be very hard – if not impossible – to distinguish between EU nationals who arrived pre or post Brexit.
If EU nationals arriving here after 31 October have different rights than those who are already here, it is unclear what employers, landlords and public services – accustomed to regarding an EU passport as all the documentation they need – are supposed to do. Imposing extra checks would be practically complex, perhaps impossible, and, according to the government’s own lawyers, legally dubious.
Confronted with the practicalities, the government may in practice decide to allow free movement to continue much as now, perhaps with a few extra light-touch checks or recording mechanisms at the border. However, this episode has further reduced the confidence of EU citizens resident in the UK, as well as employers, in the government’s overall approach to this issue.
Meanwhile, the status of a million or so UK nationals elsewhere in the EU is potentially more complex and problematic than that of EU citizens here, especially over the medium term. The EU Commission has argued that member states should adopt a ”generous approach”, and be ”pragmatic” in granting temporary resident status.
As with EU nationals in the UK, the risks of large numbers of people currently resident finding themselves in an irregular position overnight have been overstated. There is no desire on the part of any EU member state to punish UK nationals for Brexit. Many, perhaps most, countries have or will put in place approaches that are indeed generous and pragmatic, and that provide for grace periods during which UK citizens can register and, as in the UK, continue to enjoy ”broadly” the same rights. The Commission’s recently published summary table outlines what UK citizens resident in EU countries can expect.
Although EU law provides some underpinning miminum standards, the treatment of third country nationals is still largely (but not entirely) up to individual member states. And implementation, of course, is entirely in the hands of member states. In practice, there is likely to be considerable divergence in how they treat UK nationals, and this may well grow over time.
Longer-term arrangements for key economic rights – healthcare and social security entitlements, particularly when built up across member states – will take years to resolve. People that cross borders (for example, those who live in one continental member state but work or conduct business in others) will face a particularly complex set of issues.
The position of those arriving after Brexit day is even less clear, but it seems likely that in many countries they will be treated as third-country nationals, meaning that if they want to live, work or study they would need to apply under the relevant immigration rules for those coming from outside the EU. But, as in the UK, applying this in practice is likely to be extremely difficult.
Overall, then, the likely implication of a no deal Brexit for EU citizens resident in the UK and Britons elsewhere in Europe is not mass deportations or immediate legal limbo. Instead, it will be one of gradually increasing confusion and complexity, as attempts by the UK and other member states to find pragmatic legal and administrative routes collide with the messy realities of peoples’ lives, which are about much more than simply whether one is or is not legally resident.
One immediate consequence is likely to be sharp drop in migration flows, in both directions, as people will be unwilling to move if they are uncertain of their long-term status. If the no deal period is brief, the consequences will probably be manageable, but if it extends for any significant period of time, disruption – both economic and personal – will be considerable.
By Jonathan Portes, senior fellow at the UK in a Changing Europe. This piece originally featured in the New Statesman.