Some EU citizens now living in the UK will find themselves committing criminal offences after Brexit. That much is certain. How many people exactly will become unlawfully resident is probably impossible to calculate, and here at Free Movement we do not have the resources to do so, but the number could plausibly run into the hundreds of thousands.

EU citizens who have resided in the UK lawfully for five years before 29 March 2019 and continue to be resident in the UK will be entitled to “settled status”. (Those here for fewer than five years are entitled to “temporary status” while they clock up the necessary five years.)

But this settled status will not be automatically conferred. All EU nationals, including those with permanent residence documents, will have to make an application to acquire it. The deadline will be 29 March 2021. Failure to acquire settled status will make people “illegal immigrants”.

Those who do not apply to the Home Office for settled status, who are not entitled to that status under the forthcoming EU-UK Withdrawal Agreement or who cannot prove their entitlement to it will all be caught out.

A new report by the Migration Observatory at the University of Oxford points out that “it is not possible to estimate the likely size of these groups, which will depend on individual’s decisions and the registration process itself. However, because of the large number of people who will need to apply—more than three million—even if only a few percent were affected the number could be in the tens or even the hundreds of thousands”.

EU citizens entitled to live in the UK after Brexit, but who do not make an application

The biggest group likely to end up being criminalised is EU citizens who could apply for settled status but do not.

There could be many reasons why people do not apply.It is human nature to miss deadlines, even really important ones. Some will be unaware of what is going on. Some will fail to understand how important it is. Some may simply be really disorganised or poorly educated. Some may be excluded by even a supposedly simple application process.

The Migration Observatory says:

We would hazard a guess that some of the most likely groups to be affected might include casual labourers – of whom there are many – as well as Roma, elderly citizens and children.

We can only speculate about the precise take-up rate. That for the DACA registration process in the United States was around 75%. DACA is not a wholly comparable scheme; significantly, there was no deadline. But even if the take-up rate for the UK regularisation of EU citizens was an unprecedented 90%, that still leaves as many as 375,000 EU citizens who become criminals the day after the deadline.

EU citizens not entitled to live in the UK after Brexit despite the citizens’ rights agreement

There are potentially large groups who appear to be excluded from the UK-EU agreement on citizens’ rights and so not entitled to settled status.

EU citizens who are living in the UK and not working and who are not self sufficient, such as elderly people living in relative poverty, like the lady in this case we recently reported on, seem to be excluded. Some Citizens Advice centres and Barbara Drozdowicz of the East European Resource Centre are very worried about this group. Some will live independently, others may be living in care homes, some may have family in the UK but some may not.

There are also some foreign nationals from outside the EU but who benefit from EU law residence rights derived from an EU citizen (in cases like Zambrano and Surinder Singh) who appear to be excluded from the agreement. It is hard to estimate the size of this group but it could run to tens of thousands.

EU citizens who cannot provide proof of their entitlement to live in the UK after Brexit

Then there will be those entitled to settled status but who lack the paperwork to prove it even under a simplified application system. As the Migration Observatory, well, observes:

Depending on what documentation is required, some people may not be able to meet the burden of proof. For example, people working in the cash economy and not declaring their earnings could struggle to show that they were working in the UK for 5 years (especially since they did not know at the time that they would need to do so).

Its report concludes on the significant issue of “culture” within the Home Office. Officials see their job as discouraging immigration. They are used to looking for reasons to refuse people. “Implementing a new system that instead minimised rejections of eligible applicants would mean moving towards a presumption of success”, as the Migration Observatory says. Even with the best will in the world, that will not be easy.