Our Immigration team considers the latest developments in the Brexit process affecting EU nationals.

Last week, the Prime Minister wrote directly to EU nationals to assure them of their rights post-Brexit.  Whilst seem as reassuring by some, it was branded a "PR stunt" by others. The team also considers the Government's proposed registration requirement for all EU nationals resident in the UK.

Letter to EU nationals – reassuring or a PR stunt?

In the last edition of Up to Date, we considered the impact of the Migration Advisory Committee (MAC) report, which was commissioned by the Government to aid it in its evidence gathering in relation to immigration issues. We commented that the objectives outlined in this report hinted at a more pragmatic approach to immigration. This trend appears to be continuing.

Last week, prior to the October Brexit Summit in Brussels, the Prime Minister emailed 100,000 EU nationals, and also used Facebook as a platform, to offer assurances to EU nationals. She promised those citizens with permanent residence in the UK an ability to "swap" this for settled status in a hassle-free way. She further committed to simplifying the bureaucratic permanent residency application process (which, at one point, involved filling out an 85-page form) and putting "people first" in her negotiations.

In a similar vein, the Prime Minister used the October Brexit summit to emphasise the need for urgency over Brexit talks on immigration and citizens' rights. These are the latest examples of an apparent softening of the Government's stance on post-Brexit immigration and represent a significant step down from the pre-General Election "crackdown on immigration" promise.

This watered-down approach is nothing new, however, and the Prime Minister's most recent statements underline the offers made in her speech in September 2017 in Florence.

Campaigners for rights of migrants have criticised the Prime Minister's email and Facebook post as a "PR exercise" and have said that the timing of the letter demonstrates that migrants are being used as "bargaining chips" before negotiation talks. Firstly, campaigners queried why such reassurances were not issued sooner following the Brexit vote. Secondly, they felt the communication was really aimed at the leaders of the Council of Europe in advance of the October Summit.

Will EU nationals need to register following Brexit?

In June 2017, Amber Rudd announced that all 3 million EU nationals resident in the UK will have to register with the Home Office for "settled status". The Home Office are recruiting an extra 1200 staff and will receive an additional £50m in funding to process the introduction of the measure, due to begin by the end of next year.

There have been two main lines of criticism to the registration proposals. Firstly, MPs have expressed apprehension about the scale of this process and whether the Home Office will be able to cope with the weight of it. The Home Office responded that it will be an "easy access" online process which will be more user-friendly than the existing permanent residence application. Further, the default position will be to accept EU nationals' applications for settled status if they qualified (following online background checks). It is yet to be decided how "settled status" residence will be documented, but it has been proposed that it could entail an identity card backed up by an online register. It is also unclear as to whether there will be a minimum income threshold for EU nationals to bring family members into the UK.

EU citizens' rights campaigners have been sceptical of the Government's assurances and responded with "The3million" campaign group and a letter addressed to the European Commission in August 2017. They expressed a lack of confidence in the Home Office, highlighting its slow processing times and its recent wave of administrative mistakes, (for example, sending around 100 erroneous deportation letters to EU nationals during the summer in 2017).

The second line of criticism of the registration proposals came last week by a cross-party group of MEPs who warned the Home Secretary that the process could be illegal and unacceptable to the European Parliament. Following Brexit, and at least for a transitional period, Brussels intends to insist that the UK remains bound by EU law. Article 26 of the freedom of movement directive states that residency cards are for everyone, or no one. This would make the Home Office's proposals, which only require non-UK residents to register, in contravention of current EU law. As the European Parliament will have a veto on the terms of the withdrawal agreement between the UK and the EU, including during the transition period, the proposal could potentially be blocked by Brussels.

Comment

It remains to be seen whether the Prime Minister will follow through on her promises to EU nationals. However, it is certainly a positive step - PR stunt or not - that immigration is now at the forefront of debate and there is renewed focus on establishing a post-Brexit plan for migrants. What is also clear is that the Government's stance on immigration has evolved and softened somewhat in recent months.

With respect to the proposed registration requirement, the legal technicalities of the proposal are yet to be determined. There will be extensive debate over the degree to which EU law will continue to apply to the UK and the level of control that Brussels will have during any transition period. It is certainly reassuring for EEA migrants that the UK clearly intends to allow for current residents to remain in the UK with a settled status. However, it is unclear how the Home Office - which is already stretched - will cope with the additional pressure of processing an additional 3 million registrations and how this will impact it will have on other types of applications.

Both issues that we have addressed in this article demonstrate how the Government appears to be departing from a hard line stance on immigration following Brexit. In both instances, this has stemmed from resistance from both campaigners and directly from Brussels.

What next?

The following events/publications are in the pipeline:

• The Government's white paper on post-Brexit immigration policy (a draft of which was leaked to the Guardian in August) is due to be published in "late Autumn" 2017;
• The next Brexit summit will be held in December 2017; and
• The MAC advisory report is due to be published in September 2018.

We will keep an eye on these developments and provide updates as they happen.