Five causes of concern about citizens’ rights after Brexit – and what the government should do

The rights of almost five million peoples are directly affected by the UK leaving the EU – around 3.5 million EU citizens in the UK and 1.2 million Brits in Europe. The Withdrawal Agreement offers these individuals some certainty, but much depends on how the UK and member states implement the deal.

There are five things that should be causing MPs and ministers concern about the rights of citizens after Brexit.

1. Tens – possibly hundreds – of thousands of EU citizens won’t apply for settled status

The Home Office has done an impressive job providing certainty to EU citizens in the UK. Around 2.5 million EU citizens have already secured status under the new EU Settlement Scheme.

But the Home Office can’t hope to secure – or even know it has secured – the status of every eligible EU citizen. The government doesn’t know how many EU citizens are in the country, let alone who they are or how to reach them.

This scheme has few precedents. The Spanish government ran a ‘regularisation’ programme for migrants in 2005 – reaching 77% of those eligible despite setting up nearly 750 information points across the country.  The ‘dreamers’ scheme in the US, for those who arrived in the country as illegal immigrants during childhood, reached less than half the eligible population over four years. A biometric ID programme in India reached 99% of over 1.1bn eligible citizens, but over seven years rather than the planned three.

If, by the end of scheme in June 2021, the UK secures the rights of 90% of those EU citizens eligible, then this would be a major success in comparison to similar programmes – but the Home Office needs a plan to deal with the 350,000 EU citizens who would still be without status.

2. EU citizens without status will be treated as illegal immigrants once the deadline has passed

It is inevitable that a large number of EU citizens will not apply by the deadline. The Home Office has declared that they will become illegal immigrants overnight – losing all their rights – but has said that if someone misses the deadline for "a good reason" then they can apply later. That no doubt is to keep pressure up on people to apply, but the Home Office has failed to say what reasons it might regard as “good”. This could result in a self-inflicted nightmare, both politically and bureaucratically, of adjudicating cases. The Home Office could solve a lot of these problems by keeping the scheme open for all who fail to apply.

3. Over a million EU citizens face another cliff-edge over their pre-settled status

The scheme already needs to stay open after the June 2021 deadline to deal with those people only granted ‘pre-settled status’. This has been given to EU citizens who have been in the UK for less than five years – with the extra time needed to secure eligibility to apply for settled status. Some 40% of applicants – one million people – have already been given this status, which means they face another ‘cliff-edge’ when that lapses and they then have to then apply for settled status.

The risk is that huge numbers do not apply to convert to settled status. The easiest solution would be for the Home Office to automatically convert anyone whom it can verify as eligible. 

4. The current approach means EU citizens could be caught up in the hostile environment

Beyond these ‘cliff-edges’ in citizens’ rights, eligible EU citizens without secure status will be left facing the Home Office’s ‘hostile’ or ‘compliant’ environment. This means they could lose access to work, housing or public services when they cannot prove their status.

The government will inevitably take a light touch approach to enforcement in the months after the deadline – EU citizens won’t be deported en masse. But it has to decide whether to provide social security to those without status – and tell businesses what to do about employees known not to have status. Under current rules employers must suspend them immediately. A significant amount of immigration enforcement is done by those outside the Home Office – employers, social services, landlords, and the government. To ensure that EU citizens are not treated unfairly, the rules must be made clear.

Keeping a route open for EU citizens to apply later could provide a route for secure status. Relying on the ‘goodwill’ of immigration enforcement alone is not sustainable.

5. It is not clear who is pressuring the EU27 about Brits on the continent

In comparison to the focus on EU citizens in the UK there seems to be far less scrutiny of progress in securing rights of Brits in the EU. They face a patchwork of different rules, with member states – who are responsible for implementing the citizens’ rights element of the Withdrawal Agreement – each having a different approach.

Once the Department for Exiting the EU is wound up, the UK government needs clear ownership – which is currently lacking – for monitoring problems and voicing concerns, just as the EU is doing over its citizens.

If the government sits back in the belief that the Withdrawal Agreement is ‘done’ then it could be in for a big shock. The Independent Monitoring Authority, the new public body tasked with overseeing UK’s implementation of citizens’ rights, will need to tackle these issues – but it won’t be up and running for another year. In the meantime, ministers and MPs should be worried – and working up solutions.