Mass confusion following the immigration minister’s evidence (full transcript here) to the Home Affairs committee yesterday:

this was a terrible appearance by Caroline Nokes @CommonsHomeAffs yesterday. Sajid Javid needs to go back as a matter of urgency; give clear answers and put out the govt’s No Deal advice on citizens asap https://t.co/aMS2bzrfU1

— Jill Rutter (@jillongovt) October 31, 2018

Top civil servant at HMRC corrects evidence by Paul Lincoln,boss of Border Force , Caroline Nokes, immigration minister unable to answer some questions. An embarrassing Home Office day at Commons home affairs select committee

— richard ford (@RFord4) October 30, 2018

On LBC right now @NickFerrariLBC called @carolinenokes‘s performance yesterday calamitous. We could not agree more. https://t.co/vFrcc3HBSV

— the3million (@The3Million) October 31, 2018

The confusion arising from Home Office Minister Caroline Nokes’ Committee evidence is unsurprising given Govt has dragged its feet on publishing any clear no-deal contingency planning approach to EU nationals so far (just said generally they want those here to be able to stay)

— Allie Renison (@AllieRenison) October 30, 2018

MPs asked Caroline Nokes about the position of EU citizens in the UK if there is no Brexit deal. She suggested that employers and landlords would have to check the immigration status of EU residents from 29 March 2019 to make sure they have the right to be here. That is because under no deal “we will have brought forward the future immigration system”, so new arrivals from the EU would have no more right to live and work here after Brexit day than any other foreign national.

This makes no sense, because under the government’s EU Settlement Scheme there is no need to apply for a new immigration status until 30 June 2021 and EU residents are told that “it may be simpler and quicker for you if you do not apply as soon as the scheme opens”. As Nokes admitted:

it will be almost impossible for an employer to differentiate between a new arrival and somebody who has been here for 10 years and has simply not yet been through the scheme.

Dominic Casciani’s report for the BBC says it all:

As Caroline Nokes left the committee room, critics were already pointing out that the Home Office has no plan in place that matches what she told the committee.

The EU Withdrawal Act and the detailed rules in Appendix EU also preserve free movement and the rights of EU citizens by default, even if there is no deal. As Nichola says elsewhere on the blog, “the government could change its position in the event of a no-deal but I believe that is extremely unlikely in view of the various assurances made to date”. So perhaps the best view of the matter for now is that the minister did not know what she was talking about, except that whatever she said needed to sound tough on immigration.

In other words, EU citizens (regardless of when they arrived) will be treated exactly as now post “No Deal”: free movement will continue.

EU citizens should relax (a bit). But we all should be worried that Immigration Minister is totally clueless about either law or policy. https://t.co/gKotIWai8Y

— Jonathan Portes (@jdportes) October 30, 2018

A less reassuring hypothesis is as follows. This time last year, the Home Office plan was to make EU citizens migrating to the UK between 29 March 2019 and 31 December 2020 apply for a “temporary residence permit” and then apply afresh to stay under the entirely new immigration rules that would kick in from 2021. Only those resident by 29 March 2019 could apply for settled status. That plan was dropped during the Brexit negotiations, essentially because the EU wouldn’t wear it (I remember ringing the press office to confirm that the transition plan was redundant, on the day the draft Withdrawal Agreement was published). As Chris Desira wrote at the time:

amazingly, the Home Office’s preference to give lesser rights to EU citizens arriving during the transition period — that is, between 29 March 2019 and 31 December 2020 — has been defeated. This policy didn’t last very long and is a major victory for the EU. Free movement is locked in until the end of 2020.

But if there is no Withdrawal Agreement, the original Home Office plan to grant settled status only to those resident before Brexit day could be back on. Hence why the Home Office’s statement on the matter yesterday says

The Prime Minister has been clear that in the unlikely event of not reaching a deal with the EU the UK will honour its commitment to all EU citizens, and their family members, resident by 29 March 2019 that they will be able to remain in the UK.

For the reasons given above and admitted by Nokes yesterday, this does not seem remotely workable for the employers and landlords expected to distinguish between existing residents with and without settled status, and new arrivals with or without the right to work. But then, sensible and pragmatic policy-making is not what Brexit is renowned for.

The Immigration White Paper and accompanying Immigration Bill, which Nokes says are “coming very soon”, may give us answers.

This article was originally published with the headline “EU citizens are protected even if no Brexit deal, despite what immigration minister says” and has been revised to add the final section above.