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Paper mountain, hidden Brexit: How'd you say immigration control would work?

Never gonna give EU up, never gonna let you down... er

By John Lettice, 22 Aug 2016

At some point in the next few years we will be in a post-Brexit world, and the UK will have regained complete control of its borders. Or maybe not. At this juncture, it's worth taking a long hard look at how that might work.

Spoiler: it won't. And that's because of two things, law and logistics.

Those immediately affected by the UK reclaiming its borders are non-UK EEA (European Economic Area) citizens living in the UK. That is the EU plus Iceland, Lichtenstein and Norway. Switzerland is not a member of the EU or the EEA, but its citizens have similar freedom of movement rights. In the interests of brevity, we'll use EU citizen as shorthand for all this – it's not entirely accurate, but it's near enough.

There are variously estimated to be 2.9 million, 3.3 million, or 3.5 million EU citizens in the UK. Theresa May's government - and famously the PM herself - have adopted a "no guarantees" posture regarding the status of these, but don't panic, because the status of most of them is pretty much guaranteed, and indeed the government has guaranteed it. Albeit quietly.

Permanent residence, freedom of movement and EU

Many EU citizens living in the UK already do have the right to stay. EU citizens currently have the right to freedom of movement within the EU, to work and stay in another EU country, to stay there after employment has finished, and to have equal treatment with nationals. This will not apply once the UK has left, but those EU citizens who've been in the UK for five years automatically get permanent residence status, provided they've been in employment, self-sufficient or studying. They can apply for a certificate of permanent residence after this, and they now need that for naturalisation/citizenship, but it's the five years that gives them residence, not the certificate.

The government confirmed this in a statement issued recently: "EU nationals who have lived continuously and lawfully in the UK for at least 5 years automatically have a permanent right to reside. This means that they have a right to live in the UK permanently, in accordance with EU law. There is no requirement to register for documentation to confirm this status."

In evidence to the Committee, Immigration Minister James Brokenshire said that the right to remain could not be taken away: "as a matter of law it would be virtually impossible - through the ECHR, article 8 [of the European Convention on Human Rights] and anything else - to take that away from them."

Because this is EU law, British citizens in the rest of the EU have similar rights. But although the rights are automatic provided you qualify, when you apply for a UK certificate of permanent residence you do have to prove you qualify. Post-Brexit, EU citizens will certainly need some form of proof of their right of residence and right to work, but we can't count on that being provided via the current permanent residence certificate route.

In a recently published report, Migration Observatory says that each year the Home Office has been processing an average of 25,500 permanent residence certificate applications from EEA citizens and their family members, and these applications are frequently made in order to gain right of residence for a non-EEA spouse. By the first quarter of this year, the report says that 64 per cent, or 2.3 million of the 3.5 million EEA citizens in the UK qualified for permanent residence. If we assume that it will take two years to leave the EU after Article 50 is triggered, another 435,000 (12 per cent) will have qualified. The precise number will of course depend on when Article 50 is triggered - the consensus was that we'd likely do this in January 2017, but later in the year, possibly as late as December, now seems possible.

Year of arrival Estim. years UK residence by 2016 Estim. years UK residence by 2018 Number of people Per cent of all EEA+ nationals
2012 4 6 229,000 6%
2013 3 5 206,000 6%
2014 2 4 261,000 7%
2015 1 3 265,000 7%
Total 975,000 27%

Source: Migration Observatory analysis of Labour Force Survey, Q1 2016

Hang on, that's a truckload of paperwork...

Assuming January 2017 and therefore a January 2019 exit, between now and then – if we stick with the permanent residence certificate approach – we've got 2.7 million applications to process. The application form is 85 pages long and requires paperwork about your work and travel arrangements for the five-year period. While it must surely be possible to shorten the form, if you're going to separate these people from those who haven't been in the UK long enough to establish residence, those who arrive between the referendum and exit, and those who've got a fake EU ID card, you're going to need that paperwork, and you're going to need people to check it. Essentially, this is what controlling your own borders entails.

At present throughput, says Migration Observatory, it would take 140 years to process everybody. Which is obviously silly, but if the UK is to be in a position to control its borders on exit, then EEA citizens will have to be processed in a period of just over two years. Or the UK will have to take a pretty relaxed approach to residence for EEA citizens.

Which, incidentally, is what we do right now. You can however begin to see why despite already qualifying for permanent residence these people could be a kind of bargaining chip.

What about all the Brits abroad?

UK citizens elsewhere in the EU have precisely the same rights as EU citizens in the UK, and both groups are protected by the same EU law and the ECHR backstop if necessary. But if there is no EU-UK agreement on how they are treated after Brexit, different countries will inevitably treat them differently - rules on calculating length of residence and dealing with breaks in employment could vary, for example.

This is probably more important for UK citizens in the EU than vice-versa, as a fair number will be economically inactive (see the Migration Observatory report for how the UK defines this). The UN estimates that there are 1.2 million UK nationals in the rest of the EU, but that seems low, and tends to conflict with the estimates of some EU countries.

An applicant for a UK permanent residence certificate could be unsuccessful if retired or deemed to be economically inactive. In the latter case, earnings have to have achieved a specific threshold, so people in low-paid work don't qualify as economically active, while retired, inactive and students need to have comprehensive health insurance.

Post-Brexit, this may become necessary for everyone, depending on whether or not a health deal is part of the negotiations. Anyone considering a permanent residency application, incidentally, would do well to read the guidance on Colin Yeo's very helpful Free Movement blog.

If we apply the UK's residency rules - or possibly stricter ones - to the UK citizens in the rest of the EU without a prior agreement, you could wind up with a lot of retired and downshifted people with no right to remain, their status possibly dependent on who gets elected next time.

So May is right to keep the guarantees to a minimum until she's clinched some form of reciprocity, call it a bargaining chip if you like.

Brexit: What if you haven't got five years' time served....

Assume for the moment that we can strike a deal covering all citizens who do qualify for automatic residence under EU law, and consider what we do about those who don't. We can possibly lob the ECHR in here to modulate our considerations. Say Chantalle from Cherbourg got a job Sheffield in February of this year. She had at that point a reasonable expectation that she could work in the UK for as long as she liked, so were the UK to deprive her of her leave to remain, might this not be infringing her Article 8 rights? Go in too hard and the Home Office will be up to the gills in EHCR cases, many of which it will lose.

So maybe Chantalle is OK, and maybe the other non-qualifiers are too. Consider the cut-off date.

The intent of the cut-off date is to avoid a rush of new EU immigrants anxious to get into the UK before Brexit. No such date has been announced, but proponents include Andrea Leadsom, who suggested it be the day after she became Tory leader just before her campaign fizzled.

Brexit minister David Davis says there might be a cut-off date but he can't announce it now in case this triggers a rush of migrants, while the Home Affairs Committee, suggests three (day after the referendum, day Article 50 is triggered, day of Brexit).

Skip over the fact that Brexit day is a cut-off date already, and consider the implications. You've already got that cut-off date baked-in because it's the day EU law ceases to apply (depending...), and then if you're applying EU law for permanent residency (which you are until that day), there's another baked-in cut-off date which is just under five years before that. So assuming Article 50 in Jan 2017, Brexit in Jan 2019, the other cut-off date was in Jan 2014.

By implication those proposing a cut-off date that's later than that (all of them) are effectively saying that they favour easier permanent residence terms than is currently the case. As they include the Brexit minister, this might be a signpost to the kind of "generous settlement" Theresa May envisages.

Davis floated a date in an interview with the Mail on Sunday immediately after his appointment. The Mail tastefully headlined its report We'll send EU migrant surge back, but that's what the UK would have to do if it fixed any date before Brexit day, and/or if it applied current permanent residence rules. The UK is currently subject to EU freedom of movement laws, so anybody arriving prior to Brexit can live and work here, and if the date were today, June 24th or whatever, anybody doing that would have to be chucked out on Brexit.

Processor overclock

Loop back to processing permanent residency applications here, because that's how you tell the difference between those who qualify and those who don't.

Interviewed by Sky's Dermot Murnaghan recently, David Davis seemed implausibly confident that he'd be able to tell the difference: "We have records," the noted anti-database state warrior said ominously.

Well David, I'm not entirely convinced that you do. HMRC records will be some help in dealing with the easy cases, but beyond that you'll need the utility bills, bank records etc that the residence certificate requires. Nor are entry and exit records likely to be of much help. In September of last year the government had advance data on around 86 per cent of people entering the country, while prior to the reintroduction of exit checks in April of last year 80 per cent of departures were covered. Assuming Brexit in 2019 the Home Office might theoretically have entry and exit data at that level or better covering four years, but it would need to improve its ability to match it up.

Last year in its report, E-borders and its Successor Programmes, the National Audit Office found that: "Relying on legacy systems means that current processes involve extensive manual effort, duplication of effort and restrictions on the use that can be made of travel history records". So yes, useful data probably exists, but no, using it is going to be tricky.

Aside from the logistical difficulties of doing anything meaningful with the count them all in, count them all out data we're already gathering, it's possible we could run into legal issues, depending on what we do. Say we set a cut-off date prior to final Brexit date, and we start logging new entrants after that cut-off date. Skip over how you tell the difference between Chantalle coming back from visiting her mum and an actual new entrant, and skip over you'd probably have to mod the border systems in order to be able to do that - wouldn't you be discriminating here? Under EU and British law new entrants have precisely the same rights as everybody else, so your only option is to log everybody.

And build the systems that didn't get built because E-borders got terminated. There are enough wise heads in government, surely, to know lobbing another giant IT catastrophe into the Brexit mess would be a very foolish thing to do indeed. Essentially, all that's sane argues for any cut-off date to be Brexit day, with the possibility of freedom of movement being extended beyond that, depending on negotiations.

We will at least initially not be significantly closer to differentiating between new entrants and existing residents once we get to that day. As the years go by, provided our ability to use border data improves, then we'll gradually get better at that. Employers will also be some use, because once we've exited they will need to establish right to work for EU citizens in the same way as they do for non-EU. But we'll need to have issued the paperwork that lets them do that before we start insisting (see permanent residency certificates).

So, not a lot changes, EU citizens wanting to live and work in the UK don't really have a lot to worry about for quite some time to come*, and although we can squeeze EU migration over the years, we've been embedded in the EU for sufficiently long for it to be costly to control the numbers in the way some Brexiteers wanted. Did you really say that David? That was unwise.

Realistically, a period of EEA membership post-Brexit makes a lot more sense than any of the other options, but it would mean free movement continues for say, another five years. Given that he's supposed to be figuring this out, it's possible that David Davis can be convinced, or will end up convincing himself, that zero EU immigration can be kicked down the road into the distant future. But those who campaigned and voted for immigration control? How ready are they to accept that it can't be done, we can't afford it? Awkward. ®

*Warning: the author is not an immigration lawyer.

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