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Home Office leak: an expert reviews the proposed Brexit immigration system

The Vote Leave campaign promised Brexit would allow Britain to ‘take back control’ of immigration. via

The UK government has an in-tray piled high with tricky policy issues related to Brexit. Among the trickiest is how Britain’s rickety and complicated immigration system will manage the wholesale transformation of immigration status for millions of current and future residents. The leak of a Home Office draft policy document reveals that the government is buying time to help it manage three competing political demands.

First, it needs to show that it will control immigration to meet domestic Conservative party political demands. Second, it needs to establish principles and policies for entry selection and residence that suit powerful economic sectors that want continued easy access to European workers. And third, it needs a detailed negotiation offer for the EU. In addition to these political demands, it also needs an immigration system that is workable and practical.

The document is not yet approved government policy but it is telling nonetheless. The challenges are managed by a classic policymaking sleight-of-hand: buying time. It needs the time to improve the political consensus – and to set up the brand new digital immigration database on which the whole system will depend. The really difficult decisions are pushed to a later date, at least 18 months from now.

As with the government’s proposal on the rights of EU nationals published on June 26, this leaked draft proposes a “temporary implementation period” that will start on a “specified date”. In fact, this is as yet an unspecified date, but will probably be the day of the UK’s exit from the EU. The period will end when the UK has a new set of immigration rules up and running: again, no date is specified, except that it is expected to be at least two years after the first (un)specified date.

During this indeterminate time, two things will happen. EU nationals already resident can apply for settled status or indefinite leave to remain (explained in more detail in the June paper). And new arrivals from the EU will become subject to new rules of entry and residence.

What’s new

During the implementation period, EU nationals will have the right to enter and stay in the UK for three to six months. There is no commitment to an exact amount of time, but the analogy in the document is with non-EU nationals who can currently stay for six months on a “standard visit” (whether a visa is needed depends on their country of origin).

During this time, all EU nationals will be considered to have a new status, called “deemed leave to remain”. During this period, EU nationals will be able to work, study, or live (if self-sufficient) in the UK – and will have more “rights” than current non-EU nationals. They may have to apply online for travel authorisation.

If EU nationals want to stay for longer, they will have to apply for a right to reside. They will be able to do so either as a worker, self-employed person, student or self-sufficient person. The definitions of these statuses, and the kinds of documents and information required will be key to determining how open the immigration rules will be in practice.

The leaked draft implies that these definitions will be clear and universally applied – a definite improvement on the current situation. They will also be strict and designed to prevent people from undertaking low-paid and precarious work. For employed and self-employed workers, a regular income of £157 per week will be required, along with evidence of employment or contracts for work.

It will not be possible to reside in the UK while seeking work, unless you can show you have “sufficient funds”. The paper says that self-sufficiency will be defined in line with current definitions for EU free movers, which already match those for non-EU nationals. The likely result is that during this “implementation period”, low-paid and precarious workers will become more mobile, moving more often to avoid having to apply for a worker resident permit, which they might not otherwise qualify for. This will make such workers’ lives more difficult, but it is not certain that it will reduce real migration levels.

The good ship Home Office has sprung a leak. PA

To stay beyond the “deemed leave”, EU nationals will also have to register and provide biometric information that will be held on an ambitious new digital database, to be developed between now and the end of the implementation period. This is something that many other member states do, for EU and non-EU nationals – as the paper is keen to point out in a nod to its negotiating position with the EU. Once this residence permit has been granted, EU nationals will have rights to employment and residence for the time period allowed that are similar to, although not the same as, those they have now.

Family and ‘high-skilled’ workers

EU nationals currently have relatively extensive rights when it comes to bringing their families with them to the UK. These rights (sometimes called Surinder Singh rights, after a particularly important legal case) have been controversial in a number of EU member states, and they will be the first to be withdrawn by the UK in this implementation period.

Again testing the political waters, the paper suggests adopting a specific privileged status for “high-skilled” EU nationals. While EU nationals will be able to live and work in the UK, provided they fall into one of the four categories (worker, self-employed, student, self-sufficient), a residence permit would generally be for two years. For high-skilled workers, the paper suggests a residence permit for somewhere between three and five years. This would give such workers potential access to “settled status” under current UK law if they stayed for longer than five years. With this would come significantly better rights for residence, family unification, employment and social security.

And all this is just for the interim. Neither we – nor apparently the government – have any idea about what would happen after the Brexit transition period. Nonetheless, for the first time, the paper acknowledges the powerful interests from different regions and sectors that are pushing for as few restrictions as possible.

The paper provides only a few clues as to the changes being considered – and is quite explicit that circumstances may change significantly during the remaining Brexit negotiations and the elusively defined “implementation period”. Yet more uncertainty is on the cards for EU nationals considering their future in the UK while the government buys time to develop a workable immigration system.

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