“Brexit means Brexit”, or so says our new Prime Minister. Sadly, it is almost certainly not as simple as that. The UK has voted for Brexit, but which Brexit?
In mid August 2016 Gisela Stuart MP, one of the few Labour MPs who was in the ‘Leave’ camp, announced her concern that EU citizens had been ‘left in limbo’ following the referendum. Inevitably this caused a certain amount of bemusement on social media, with people pointing out that this problem was a direct result of a situation that she had helped bring about.
But if there is any merit in that criticism, then at least it could be said that she is trying to solve the problem. She has been appointed to head a research project conducted by British Future, a ‘non partisan think tank’, that will be looking at how EEA immigrants rights will be protected when (or, as some still think, if) the UK leaves the EU.
There are 3 million or so EU Citizens in the UK without British citizenship. Some have recently arrived, some have been here for many years, but all are worried as to their current position. How will the government respond?
There are a variety of responses that could follow. At one extreme it could be a question of treating EEA nationals as nationals of any other country. However, asking everyone to apply under the Immigration Rules on a case by case basis would be a logistical nightmare. Many would not qualify, and all of those would have to be considered under Art 8. The resources needed would be huge, and given that everyone would have a right of appeal, and the Home Office do frequently make incorrect decisions, the Tribunal Service would be overworked for many years to come.
On the other hand, it may be that some form of blanket leave to remain, maybe indefinite but more likely limited, could be granted to every EEA national and family member who was, say, living in the UK on 22 June 2016.
Although this would be more straightforward, it will still cause problems – how do you prove you were living here then? What if you have criminal convictions – would that make a difference? Does it apply to a student, or to someone on a temporary contract, or to someone retired? What if you have been here for 30 years, but were away for six months on work? Would different rules apply to family members of EEA nationals, or to Croatians?
All of these questions would be controversial in one way or another, and all would throw up hard cases where exceptions would have to be made. Whether Brexit is good for the economy or not, it is undoubtedly going to be good for lawyers.
In her interview with the BBC, Ms Stuart recognised many of these potential problems. To help her solve them, there is a large group of experts; politicians of all stripes, academics and so forth, that have been brought together by British Future. They have not been given much time however, with a report promised in the autumn.
Of course, whatever solution is reached will not be determined in a vacuum – there are about 1.2 million British people living in other EU countries, and too harsh a settlement in the UK may well have consequences for the position of UK citizens on the Continent.
But before we even get to the question of any such agreement, it needs to be remembered that even if the UK were to trigger Art 50 tomorrow, and then leave the EU in an orderly fashion in 2 years, there is no guarantee that whatever settlement is reached, it will leave the UK outside the EEA.
And If the UK stays within the EEA, then in all probability this will no longer be an issue – free movement rights will carry on as they are now. Simple certainly, but where does this leave the political problem of how that plays with the millions of people who cast their votes for Brexit in the expectation that this would stop, or at least limit, immigration?
The vote on 23 June 2016 will reverberate for a long time. But two months later, we are still in the EU and with no sign of any imminent withdrawal. It will not be this year certainly, and may be a long while, and so we wait.
Those EU citizens still here are not in the sort of wretched limbo that some immigrants are; they are ‘legal’ with all the benefits that that brings. But it is still an invidious position as there is no long term certainty. And whatever Ms Stuart’s undoubted skills are, the question of how to resolve this is certainly not one that is capable of easy resolution.