Does a no deal Brexit mean that EU citizens living in the UK immediately become illegal immigrants? Would Europeans coming to the UK for work, study or tourism require visas – something which would immediately lead to chaos at ports of entry to the UK and which would be disastrous for UK tourism?
The good news is that in our comprehensive new report, “Cost of No Deal: Revisited”, we at The UK in a Changing Europe concluded that this is highly unlikely. The government has promised it has no plans to simply ‘turf out’ EU citizens, regardless of the outcome of negotiations.
Moreover, the law is -for the moment – quite clear. The main provisions of European Union law on freedom of movement of people have been fully incorporated into UK law by the EU Withdrawal Act.
So the right of EEA citizens (including those from non-EU countries, like Norway, and also Swiss citizens) to live and work here – and the legality of employers continuing to employ them, hospitals and schools continuing to treat and educate them, and so on – would broadly continue unless and until the UK government or Parliament changes the rules. Similarly, there is no reason why border arrangements and visa requirements would change immediately.
But for a million or so UK nationals elsewhere in the EEA, the news is not nearly as good. Their status would be considerably more complex and potentially much more problematic.
The day after a no deal Brexit, Britons will cease to be EU citizens, and the rights that they currently have in other Member States by virtue of their EU citizenship will therefore be thrown in to question.
If, like the UK, those countries have laws relating to immigration and residence that give special status to EEA nationals, then on Brexit Day those laws, in theory, will automatically cease to apply to UK nationals, because the UK would no longer be part of the EU or EEA.
So the same mechanism that protects, at least temporarily, EEA nationals living in the UK would also leave UK nationals in the EEA without such protection. So far other Member States have made little progress in implementing the deal provisionally agreed to grant them “settled status” after Brexit – let alone to make contingency plans for what happens if in fact there isn’t a deal.
There must be a serious risk that if the Withdrawal Agreement is not, in fact, agreed, there will be nothing at all in place in at least some countries.
Some might have to fall back on the long term residents directive which applies to non-EU nationals after five years’ lawful residence in the host country. This is presumably the status that would, in theory, apply to UK citizens: in general, it confers far fewer rights, and no rights for those without five years’ residence.
This would be disastrous for many of those concerned. They could lose the right to reside, to work, or to access essential services. There would be major question marks over the recognition of professional qualifications.
In addition, UK nationals travelling to the EU would presumably be subject to the same requirements as third countries – and without an agreement on visa-free access and unless the EU decides to waive visa requirements unilaterally (as it does for a number of countries), this would mean, for most countries, applying for a Schengen visa.
Apart from being expensive, it’s unlikely the systems of many countries could cope with such large increase in volumes. There would be immediate large-scale disruption to travel and tourism.
Returning to the UK, if some or all of this transpired, this in turn would raise the prospect of retaliatory action by the UK, which the government has explicitly threatened.
The government would be able to use its new powers under the EU Withdrawal Act, to “modify, limit or remove the rights which domestic law presently grants to EU nationals, in circumstances where there has been no agreement and EU member states are providing no such rights to UK nationals.”
In other words, EU nationals in the UK really would become bargaining chips. So the disaster scenario is one where, deliberately or simply through lack of preparation, UK nationals in the EEA are thrown into limbo, while travel becomes much harder; and the UK retaliates, placing a question mark over the status of some or all of the 3.4 million EEA nationals currently resident.
Fortunately, this disaster scenario is unlikely to materialise. Even in the event of a breakdown in negotiations, or the rejection of the Withdrawal Agreement by the UK Parliament, it is very difficult to see how it would be in the interests of either side.
More likely is that there might be coordinated but essentially unilateral actions on all sides to ensure that the status quo was preserved as far as possible. That is, both the UK and the EU27 would announce publicly that they would continue to respect the existing rights of each other’s citizens, and where necessary the EU27 and Member States would take emergency legislative action to ensure this.
This would avert immediate consequences of the sort described above. But it would be a sticking plaster rather than a permanent solution. Over time, uncertainties and legal ambiguities would mount, leading to significant numbers of people with uncertain and unclear status either with respect to residence or other important rights.
Businesses in the UK would certainly find it much harder to recruit EU nationals.
Eventually, it seems likely both the UK and individual EU27 countries would be obliged to clarify the legal position in some form, either through a deal between the EU as a whole and the UK to resolve this specific issue, or as series of bilateral deals.
Inevitably, there would be litigation – under domestic law, EU law, and the European Convention on Human Rights – as individuals sought to clarify their status.
But meanwhile considerable numbers of citizens would be likely to “vote with their feet” and return to their countries of origin.
For millions of our fellow citizens, both in the UK and elsewhere in the EU – including, for many of us, friends, family, and co-workers – no deal is far more than just an economic threat – it would put their daily lives directly in the firing line.
By Professor Jonathan Portes, senior fellow at The UK in a Changing Europe. This piece originally featured in The Huffington Post.