Jill Rutter is Director of Strategy and Relationships at British Future, and served as the secretary to its inquiry into the future status of EU nationals in Britain.
Britain’s decision to leave the EU will result in substantial changes to almost all aspects of immigration policy. The nature of these changes will be the subject of an intense, high profile debate. There is, however, broad political, business and public support for separating the status of the 2.8 million EU nationals currently living in the UK from future policy changes.
This consensus bridges party politics and the divides of the referendum campaign. Opinion polling for British Future, conducted in the days after the referendum, found that 84 per cent of the British public support letting existing EU migrants stay – including over three-quarters (77 per cent) of Leave voters – with any future changes to freedom of movement applying only to new arrivals.
Despite the breadth of support for EU nationals in the UK, the Government has delayed giving a commitment to protect their status, on the grounds that it needs to seek a reciprocal agreement to secure the status of British nationals living in the EU. Six months after the referendum this position still stands, a position that is causing anxiety for EU nationals themselves and uncertainty for their employers.
To help resolve this situation, British Future set up an independent Inquiry to look at ways that the Government could secure the status of EU nationals living here. The Inquiry panel was chaired by Gisela Stuart, and brought together the TUC, the Institute of Directors and academic experts, as well as those from both sides of the Commons and the EU referendum debate. It received evidence from members of the public, employers, lawyers and many EU nationals.
The panel looked at options for granting EU nationals in the UK settlement and citizenship rights. Those who already have five years’ residency in the UK can apply to the Home Office for Permanent Residence, which gives an EU national the right to stay in the UK indefinitely and is similar to Indefinite Leave to Remain for non-EU nationals. But until very recently, few EU nationals applied for Permanent Residence cards, because it conferred no advantages.
The inquiry recommended that the estimated 1.8 million EU nationals who can already show five years’ residency be offered Permanent Residence as it currently stands. Those who don’t have five years residence, but were working or studying in the UK on a named cut-off date, should have a five year transitional period after Brexit to apply for an ex-EU status that gives them the same rights as did Permanent Residence.
One of the more difficult questions that the inquiry considered was the cut-off date, after which changes to the rights of newly-arrived EU nationals might apply. There were a number of options: these included referendum day, 23 June 2016; the day when Article 50 is triggered; the repeal of the Immigration (European Economic Area) Regulations 2006; or the date on which the UK actually leaves the EU.
Any cut-off date needs to be fair and legally water-tight, as well as commanding public and political support. In the end, the inquiry opted for the triggering of Article 50, as EU nationals who arrive after this day could legitimately expect future changes to their immigration status.
Setting the referendum day as a retrospective cut-off point would risk legal challenges, while the panel also dismissed Brexit as a cut-off day as it would leave EU nationals in an uncertain position until late 2018 at the earliest.
As well as issues of policy, the inquiry also looked at the “how”. Dealing with up to 2.8 million cases would be the largest administrative task the Home Office has ever undertaken. Given its current rate of processing Permanent Residence cards, it would take more than 150 years to clear the books. Already, the system is creaking, with the inquiry receiving accounts of delays and lost passports, alongside a 240 per cent increase in applications since the referendum, compared with the same time in 2015.
If the Home Office does not substantially reform the process to apply for Permanent Residence, there are much wider knock-on effects in other areas of immigration control: asylum and work visa backlogs, fewer deportations and longer queues at passport control. While checks must be rigorous, they must not subject EU migrants and their employers to unnecessary bureaucracy. No employer wants to have to dig out the payslips, not just of all current EU employees but all ex-employees too. The inquiry recommends that local authority Nationality Checking Services – which already help people assemble the paperwork needed for citizenship applications – check EU nationals eligibility against their HMRC and DWP records. The Home Office’s role should be restricted to more complex cases.
The inquiry is now calling on the Government to adopt its proposals. By doing so, the UK would create goodwill and put itself in a better position to get a reciprocal deal for UK nationals in the EU. It would also send a clear statement against the hate crimes being perpetrated by an extreme minority. Above all it shows that there can be consensus on immigration – that EU nationals who have made their homes here are welcome.