Handle with care: why it’s time to treat EU nationals responsibly

30 August 2019

Two weeks after the referendum to leave the EU in 2016, I spent a sunny Saturday afternoon in a lecture theatre at Imperial College answering questions from over 500 anxious French citizens, most of whom had lived in the UK for more than 10 years.

While we couldn’t give any concrete answers about what was going to happen with Brexit, we sought to reassure as much as we could. We explained the options existing to evidence status, the possibility of applying to naturalise as a British Citizen and the broader human rights many of them would have established over a lengthy period of residence in the UK which could form the basis of an application to continue living in the UK.

The Government’s refusal to offer speedy reassurance to EU citizens and their irresponsible decision to use their status as a bargaining chip, compounded the understandable anxiety many Europeans felt.

Over time, a plan developed which was intended to provide status to the estimated three million Europeans living in the UK. While the roll out of the settlement scheme has had its share of issues and it is not a comprehensive solution for everyone, it did provide some clarity. For the majority of people, if you are here before we leave the EU, you will be able to stay. Yes, there are some things to keep in mind. No, the process is not as straightforward as it once was but, ultimately, you should be able to stay in the UK long term.

The Withdrawal Agreement promised a transition period, a buffer to enable people and businesses to adjust to a new post-free movement future and to apply for their post-EU UK immigration status. When the prospects of the Withdrawal Agreement passing grew remote, Theresa May’s government proposed a new scheme whereby Europeans arriving after a no-deal Brexit would still be able to come and work in the UK during a transition period (albeit under considerably less favourable terms and with more bureaucracy). This scheme was far from perfect but at least it was a plan, at least employers and their prospective employees could plan, universities could plan, students could plan, families could plan.

And then Priti Patel decided to tell everyone free movement was ending on 31 October, and the indication was that this would be done through legally questionable means.

While that doesn’t necessarily disrupt the position under the settlement scheme, it throws the position of anyone arriving after Brexit into the unknown. It also, in practice, potentially impacts those who are already here. If EU citizens arriving after Brexit don’t have free movement, how does an immigration officer distinguish between EU citizens on arrival? How does an employer determine if you have the right to work? How does a landlord determine if you have the right to rent?

There are also serious questions about what will replace free movement. The intention of a transition period was to allow time for a new immigration system to be put in place. Europeans play a vital role in the functioning of British society, something seen starkly in the NHS in particular. What plans have been made to deal with the inevitable skills shortages which will flow from a sudden end to free movement?

These questions, many of which remain necessary largely because – despite the Windrush scandal – the framework of the hostile environment is very much intact, require answers and they require answers urgently.

And what has the Government done in the face of these difficult questions? They have closed the forum within which we could have sought these answers. With the prorogation of Parliament the time to ask and answer these questions is limited, if it exists at all. Beyond this, there is an even more fundamental question, could this Government even provide answers which we could trust?

In the last 10 years I have worked in immigration law, I have written blogs to help inform, to explain the intricacies of UK immigration law and to raise awareness of important issues. I have also used this forum to vent my frustration, and increasingly my anger at the misinformation feeding immigration policy, at the lack of compassion reflected in law and policy and at the harsh consequences of the hostile environment. In this way, I have found writing to be a cathartic experience.

It was, therefore, a surprise to find myself so at a loss of words when Priti Patel’s announcement regarding the ending of free movement was made almost two weeks ago.

Was I frustrated? Yes. Was I angry? Yes. And yet the words did not come. All I could think about was that Saturday afternoon three years ago, the panic I felt in that room, the deep concern from people who had made a life in the UK that everything could be upended overnight. And I sat there for hours, and explained every option and, I hoped, provided some measure of reassurance during what was a stressful time.

Europeans living in the UK, for the most part, should still feel reassured that their ability to continue living in the UK should not end with a no-deal Brexit. The settlement scheme remains intact, the deadline to apply – even in a no-deal scenario – is 31 December 2020 so there is still time. And yet, that panic is building up again, what little trust that existed is gone.

With the extraordinary events of this week, I have again found my voice. Now is not a time for silence. It is a time to ask the difficult questions and demand the answers. It is time to expose the dangers of the plans which are unfolding and to highlight the consequences which could be the result. We need clarity and accountability.

We must find our voices and it is imperative the Government find theirs.

About the author

Katie Newbury is a senior associate in our immigration team with over 10 years' experience across a wide spectrum of UK immigration matters and with particular expertise in advising on complex personal immigration matters. She is often involved in lobbying the Home Office, including in relation to the design of a future post-Brexit UK immigration system.

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