Following Priti Patel’s recent comments about the immediate end of free movement following a no-deal Brexit, the Home Office sent an email reassuring EU citizens that they will continue to be eligible to remain in the UK so long as they apply for the settled status scheme.

What the email is silent on is whether or not EU citizens living in the UK before Brexit will be required to demonstrate their immigration status from Brexit day in order to access the services they are entitled to.

Immigration status checks beyond the border

As I tried to explain in my last update, this isn’t so much about border checks as the conditions of free movement continuing – being able to apply for jobs or use the NHS. Laws introduced under the umbrella of the “hostile environment” policy mean that citizens often have to produce papers to satisfy employers, landlords and various public authorities that they are legally residing in the UK.

A big worry about an overnight end to free movement in the technical sense is how EU residents would demonstrate this if they have not already secured settled status. Merely producing an ID card or passport as proof of nationality would no longer suffice, as they could be newly arrived EU citizens without free movement rights.

Very worryingly, Home Office officials have indicated to my firm that they are unable to confirm the position on this for now.

While we can only speculate, this may suggest that legislation to repeal the laws relating to free movement may be brought forward in order to implement checks on EU citizens from Brexit day, or soon after.

The last government’s position on a no-deal Brexit was that employers, landlords etc would not be required to do anything different in terms of checks until the beginning of a new immigration system on 1 January 2021.

For example, a government policy paper published at the start of this year says that

Those here by exit day will have until 31 December 2020 to apply for status under the scheme. Until this time, EU citizens will continue to be able to rely on their passport (as a British citizen may) or national identity card if they are asked to evidence their right to reside in the UK when, for example, applying for a job, as they do currently.

That is repeated in government guidance to employers published as recently as April:

until 1 January 2021, EU, EEA and Swiss citizens will continue to be able to prove their right to work in the UK as they do now, for example by showing a passport or national identity card. Alternatively, they may choose to use the Home Office online service if they’ve been granted status under the EU Settlement Scheme but you cannot require them to do so. 

The intention of this policy was to ensure that employers etc would not be required to distinguish between those EU citizens who are eligible for the EU Settlement Scheme, and those who arrive after exit day and have different rights and entitlements.

Immigration status checks would only be required from 1 January 2021, after the settled status deadline had passed. That enabled a transition into the new system when, in theory, everyone who should have a status will have one or have applied.

Status check policy up in the air

But this policy has not been restated in the Home Office’s recent communications. In fact, they say that it is now being rethought:

Details of other changes immediately after 31 October and improvements to the previous government’s plans for a new immigration system are being developed and the government will set out its plans shortly.

The concern is that all EU citizens will be required to demonstrate their immigration status from exit day, or some time soon after, in order to enjoy their rights and access the services they are entitled to.

We have asked the Home Office to confirm whether:

1. Employers would or would not be required to check the UK immigration status of EU citizens until after 31 December 2020. (In other words, right to work checks remain as before 31 October 2019.)
2. Landlords would or would not be required to check the UK immigration status of EU citizens until after 31 December 2020. (In other words, right to rent checks remain as before 31 October 2019.)
3. Banks would or would not be required to check the UK immigration status of EU citizens until after 31 December 2020. (In other words, bank account opening checks remain as before 31 October 2019.)
4. Until 1 January 2021, the NHS would or would not be required to make any additional checks on EU citizens seeking treatment from those checks that they would make before 31 October 2019. 
5. Until 1 January 2021, Border Force would or would not be required to make any additional checks on EU citizens travelling to the UK from those checks that they would make before 31 October 2019.

It is the answers to these questions that will determine whether the promised “end of free movement” is political rhetoric or has real substance. If there are no such checks, the conditions of free movement effectively continues as planned. If these checks are required, then there is real bite to the announcement — but at the expense of European residents who were promised that there would be no change to their day-to-day lives for some time yet.

Amid the general chaos of a no-deal, to require checks without substantive transitioning into the new system is dangerous. It will inevitably cause some EU citizens’ rights — to jobs, to healthcare, to find a home — to be interrupted until the mistake is remedied.

Given that there are millions of European families in the UK, “Windrush on steroids” is not a bad description of the likely outcome.