19 August 2019

 The Home Secretary’s plan to make a major change to immigration at the end of October is not credible, argues Joe Owen.

While the recent leak of the government’s no-deal planning assumptions painted a bleak picture, those assumptions could yet get bleaker still. Priti Patel, the new home secretary, wants to rip up the Home Office’s no-deal plans and ‘end free movement’ on 31 October. To do that in any meaningful way would cause major disruption – employers, citizens and universities are completely unprepared for this last-minute U-turn.

On a practical level the plan is so close to impossible – if not entirely impossible – that one wonders whether the government is serious about making it work.

There is no legal basis for ending free movement – unless the government wants a battle with Parliament or the courts

Ending free movement and replacing it with an alternative approach would require the home secretary to legislate at a time when Parliament is squaring up for a showdown with the Executive. Bringing back the Immigration Bill, which has been missing in action since early March, would surely be the first (but possibly not last) example of a lamb being sent to slaughter as part of the government’s no-deal plans.

The government might think that legislation on immigration would put Labour in a difficult position and could pass with heavy abstentions. But, as they have done with the Trade Bill, MPs could scupper the government’s plans by tabling amendments that would prevent powers coming in to force unless Parliament formally approves a no-deal Brexit.

Inevitably, Home Office officials will be desperately searching the statute book for a way to avoid primary legislation. The most tempting option will be the broad Henry VIII power in the European Union (Withdrawal) Act 2018, but the power was designed for technical fixes not policy change. Any major immigration-related statutory instrument laid under the Act would almost certainly be made an affirmative one by MPs – meaning it would require a majority vote to pass. And even then, it would be wide open for judicial review.

The government can’t ignore practical constraints on immigration policy for long

Even if the government manages to defy parliamentary arithmetic, it can’t defy reality. Its ‘no deal’ plan for immigration – EU Temporary Leave to Remain – was essentially designed to allow the government to claim ‘free movement’ had ended while also requiring no major practical change to the way EU immigration worked. It had some big flaws but, with the time available, it was about as much as could realistically be put in place.  

Something more radical would require the Home Office to magic a new system out of thin air. The last big change in the immigration system took almost four years to roll out, while the government needed almost two years to put together the post-Brexit immigration white paper. Does Patel really believe it is possible to design, build and roll-out a new system in just eight weeks?

Successive home secretaries have already rejected applying the existing non-EU immigration system to EU citizens who enter the UK after Brexit – and for good reason. The system is a restrictive one, and would need major changes to make it sustainable. It also requires prospective migrants to go to visa processing centres in their country of origin. These centres, unsurprisingly, don’t exist in the EU. This means the government would have just eight weeks to get centres up and running – including employing staff and installing the necessary systems – all over Europe.

And it is not just about the government. Employers will be in the middle of recruitment processes for after October, and many will have already offered jobs tor EU citizens. By opting to give eight weeks’ notice for an as-yet undecided outcome, the government is not exactly adhering to its plan to “end the Brexit uncertainty” or its intention to give business a year to prepare for a new system.

The biggest issue is how to deal with EU citizens already living here – a big change now would plunge them into uncertainty

Enforcing new immigration rules for EU citizens arriving after 31 October would also require the government to give status to all those EU citizens already living in the UK. Less than a third of the 3.5million or so EU citizens eligible for settled status have actually gone through the process of securing their rights, leaving millions in limbo after Brexit day. There would be no way for employers to distinguish between those EU citizens who have lived and worked in the UK for decades, but are yet to get settled status, and those who arrive in the days after a no-deal Brexit without a visa or permission to work.

This situation would create the very real prospect of the government’s ‘hostile environment’ measures catching out the same EU citizens who have been promised security. It also increases the risk of a larger-scale repeat of the Windrush scandal.

If the government is serious about a no-deal Brexit then it should start acting accordingly

It would be politically uncomfortable if free-movement (or something very similar to it) continued after a no-deal Brexit. But then there is a great deal about a no-deal Brexit that is both politically uncomfortable and unavoidable – from imposing direct rule in Northern Ireland to the need to bail out failing businesses.

Immigration, on the other hand, is a cliff-edge that the government doesn’t need to face. Choosing not to extend its plans for continuity as far as possible (as is the case for almost every other policy area) is a self-inflicted headache.

The Home Office is a hugely complicated department to run – and those who run it tend to lose their jobs through operational failures rather than a lack of policy ambition. Making radical policy demands might boost a home secretary’s profile in the short term, but it is the ability to deliver those policies on the ground – which, in Patel’s case, appears close to impossible – that determines how long a home secretary lasts. 

Comments

Worth adding: a rushed change could produce some horrendous consequences for (1) children who are not the biological offspring of a legally married couple (2) adults who owing to serious health problems (especially less visible problems such as mental illness) are dependent on EU citizens.

"There would be no way for employers to distinguish between those EU citizens who have lived and worked in the UK for decades, but are yet to get settled status, and those who arrive in the days after a no-deal Brexit without a visa or permission to work."

Whilst accepting the main thrust of your argument, I dispute the above statement. Long-standing employees would, or should, have a NI number.