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What does Brexit hold for European nationals living in UK?

Submitted by on 29 Sep 2016 – 09:00

Whilst uncertainty still clouds the future of European Union nationals living in Britain, Will Somerville, UK senior fellow at Migration Policy Institute and visiting professor of politics at the University of Sheffield, notes that the Government of the United Kingdom will face several challenges in drafting and implementing a withdrawal agreement, in terms of setting criteria for residency of European nationals, setting cut-off points and implementing whatever is decided. He weighs the different options available and says the devil is the detail

Prime Minister Theresa May’s political response to the EU referendum—“Brexit means Brexit”—has bought her time. The slogan manages to signal movement without giving away any detail. Yet, for the estimated 3.5 million European Union and European Economic Area (EEA) nationals living in the UK, the details are all important.

The UK government has promised that European migrants will be ‘properly protected’ but has stopped short of guaranteeing permanent status. Amid the uncertainty, many are voicing concern over their future in the UK. The referendum has also emboldened those vehemently opposed to migration, as shown by a sharp rise in anti-immigrant hate crimes.

Though the precise sequencing of Brexit has yet to be announced, we need two agreements: first a withdrawal agreement and then a separate accord codifying the future UK-EU relationship (covering trade, migration and other arrangements)

The withdrawal agreement is the most relevant treaty for European nationals living in the UK today, as it will detail their rights of residence. It is widely expected that the accord will be negotiated over the next 18-30 months, with the starting gun fired when the UK triggers Article 50 (which initiates a 24-month period of negotiation). Crucially, EU free movement law applies until exit is official. Thus, in the short term, nothing changes.

In the longer term, the government will most likely guarantee existing rights for Europeans for legal, practical and political reasons. British Future think tank polling shows that 84 percent of the public favour settlement for European migrants, and in any event unravelling accrued legal rights would be difficult. There are also reciprocal reasons to guarantee rights as many British citizens live across Europe. However, the devil will be in the detail. There are three challenges. The first is setting out the criteria for who qualifies for permanent residence.

Current free movement law automatically awards permanent residence after five years of continuous UK residence. Recent analysis by the Migration Observatory at Oxford shows that an estimated 2.6 million EU and EEA nationals have lived in the UK for more than five years.

The remainder—temporary residents—will thus be a particular point for negotiation, not least as certain nationalities are particularly affected. Social Market Foundation analysis suggests that more than half of people from Romania, Spain, Hungary, Greece, Italy and Bulgaria don’t qualify for permanent residence.

The second related challenge lies in setting the cut-off point for when the rules will come into effect. Obvious choices are when the withdrawal agreement comes into force, the date when Article 50 is triggered or the 23 June 2016 referendum date. This has substantial implications. For example, while the UK remains a member of the EU, an additional 435,000 European nationals will accrue permanent resident rights over the next two years.

The third and the most difficult challenge ahead is implementing whatever is decided. The current system is rigid and processes just 25,000 applications yearly, turning down 1 in 3 applications, mostly because of insufficient, invalid or incorrect documentation. The processing challenges are immense: the UK does not have a population register and the most obvious proxy (a National Insurance Number) has obvious flaws—for example there are 1.5 million temporary numbers in the system with no way of checking if those with a NINo are residents in the UK. Similarly, three of the four categories of permanent residents (self-employed, self-sufficient and students) require proof of permanent health insurance. One would anticipate that a range of proofs of income and residence will eventually be needed, with all the problems that will entail for government bureaucracy.

Turning to future flows, the future UK-EU agreement is unclear. One option is an EEA-type agreement that provides association rights, with a brake on migration. Under such an outcome, the rights of EU nationals would be the same as today. But given that control of immigration was a key motivator for Brexit voters and that it’s implausible EU governments will grant the UK a special status that includes limits on free movement, some sort of EEA agreement seems possible—if at all—only as an interim step.

In the longer term or if there is no EEA agreement, a future arrangement will involve a greater degree of control over European nationals. It is logical to assume that it would be based on selection of highly skilled workers and students, perhaps a natural extension of the existing UK Points Based System alongside extending the current regulations on non-EEA family joiners, which are far more restrictive. Under any future agreement, rights accorded to European nationals will be weaker, as is currently the case for non-EEA migrants.

While these questions are being resolved, European governments may consider ways to support their nationals. In addition to negotiating the details (fees, streamlining process, etc.), governments could facilitate the process of receiving residency. Consulates could assist with proof of permanent residency (e.g. health insurance), or helping with appropriate citizenship applications or applications for a residence card (or registration certificate for temporary residents), which few European nationals possess but would be an obvious gateway into permanent residence later

Will Somerville recently co-authored an MPI report examining the role of immigration in the UK political sphere and call for a Brexit referendum.