The Home Office is a defensive institution. This is scarcely surprising: if a department’s daily business is stopping illegal migrants from entering the country and terrorist fanatics from murdering its citizens, those who work in it are unlikely to take a sunny view of the world. Theresa May was the longest-serving Home Secretary for over a century, and her former department’s distrusfulness has rubbed off on her. And in any event she is not inclined to speak when silence will serve her instead.
This combination of nurture and nature is often a strength – her taciturn reticence helped gain to her the Conservative leadership, after all – but it has proved a weakness when it came to dealing with the future of EU nationals in Britain, which the Commons will debate today as part of the Article 50 bill. On Monday, as it began its committee stage, she showered them with praise, telling MPs that: “EU citizens living in the UK make a vital contribution to our society and economy. Without them, we would be poorer and our public services weaker.” She said that she wants to guarantee their right to stay in the UK “as soon as possible”.
It would have been better had she said so clearly last year, when the issue first arose in the wake of the referendum: doing so would have saved her a lot of trouble and those EU citizens themselves quite a bit of anxiety. She also seems to have misread Angela Merkel’s outlook on the matter. Last summer, she tried to sort the matter out with the German Chancellor. But Merkel was unwilling to move without other EU leaders, sticking to the line that the 27 must act together. The incident seems to have been a classic instance of British-German misunderstanding, mirrored on their side by the illusion in parts of the German opinion-forming class that we will call off Brexit after all.
None the less, we believe that the Prime Minister is right not to have made any commitment before other EU countries do so too. Perhaps we are hard-hearted or wilfully obtuse, but ConservativeHome cannot see what a lot of the fuss has been about. There are about 2.8 million EU nationals from other countries in Britain, and there are roughly 1.2 million British nationals living in other EU countries. It makes sense for the rights and responsibilities of both groups to be settled at the same time, and none at all for May to make commitments to citizens of other countries before she has guaranteed the position of those of her own.
In any event, not all those three million or so people are affected. As Christopher Howarth pointed out yesterday on this site, 84 per cent them already have the right to stay post-Brexit. This is because “the majority of these citizens (according to the Migration Observatory), 64 per cent, already have the right to stay having been here for five years, eight per cent are children who have a right to stay here as they were born here or have a parent that already has a right to stay, and a further 12 per cent will have been here for five years by 2018 and so will have the right to stay.” Many of these have been caused a lot of distress for no good reason, some of it by diehard Remainers who believe it their duty to stir up as much alarm as possible about Brexit regardless of the human cost.
What about the remaining 16 per cent? As Christopher said, Ministers must ponder the future of “newly arrived nationals, those who have not arrived yet but may by 2018, those who are here but have no right to be and those, such as criminals, who gained rights under EU law to avoid expulsion but are unlikely to be granted a blanket right”. There are also the prickly questions of what status to grant (some EU states don’t permit dual nationality), what access to benefits and the NHS to allow (non-EU migrants are often not entitled to the former on on arrival here), how the people in question are to be identified and, perhaps above all, what the cut-off date for granting rights to this group of EU nationals should be.
For what its worth, our advice to the Government is for it to be as generous as possible without privileging EU nationals above those from other countries (there will be exceptions: for example, Irish citizens have rights that those from non-EU countries and other EU countries too do not, and these should be retained). A British Future inquiry into the future of the former recommended a cut-off date of the day that Article 50 is triggered. Jill Rutter, its secretary, wrote on this site that this is because “EU nationals who arrive after this day could legitimately expect future changes to their immigration status”. That seems sensible. It may well be that Ministers make concessions on some of these matters today, as they often do when in a tight spot in the Commons.
But whether so or not, we hope that MPs keep a cool head. Some of the rhetoric about the future of both EU nationals from other countries and our own in theirs has been alarmist. The rights of the 84 per cent described above, for example, are protected by the Vienna Convention on the Law of Treaties. May is not going somehow to transform herself into a kind of Donald Trump on crack, and start deporting people who are entitled to be here, or stripping them of their rights, in defiance of international law. It is time for a sense of proportion.