Who will have the right to remain?

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Hello, and welcome to Brexit Unspun the podcast where we debunk the political spin around Brexit. I'm Siona Jenkins. Britain's decision to leave the European Union has thrown the careers and life plans of vast numbers of people in the UK into Europe into disarray. It has also caused headaches to employers worried that they may not be able to retain or recruit the best staff.

In this episode, we'll discuss how far the exit negotiations have succeeded in allaying some of these fears and what more needs to be done. I'm joined by Helen Warrell-- our public policy correspondentt-- and Katie Newbury-- an immigration lawyer at Kingsley Napley.

Helen, let's start by catching up with the progress of the exit negotiations on the right to remain for EU citizens in the UK and UK citizens in Europe. What has been achieved so far in clearing up some of the uncertainties?

As it happens, David Davis has recently been discussing this in Brussels. And he is very clear that a few major milestones have been achieved. He is promising to EU nationals in this country that their rights and their legal statuses will be enshrined in UK law by the withdrawal agreement. He's promising that the new process to register in the UK formally will be easy, and it will be low-cost.

And he's saying that EU nationals who've already applied for and successfully secured permanent residents, will be able to convert this very easily into settled status, which is what they're going to have to have post-Brexit. And he's saying this is going to be simple and straightforward. And it's not going to rely on a whole new application.

OK, are there any outstanding issues then?

The problem is there are lots of outstanding issues. And the red lines in this particular negotiation are being very hard fought. The UK is still fundamentally at odds with Brussels on the rights for EU nationals bringing non-EU spouses into this country, and that is likely to be, I think, something which continues throughout the negotiations to be a thorny problem.

The other big issue in the background to all of this is that the home office is inevitably going to struggle with the sheer bureaucracy of registering 3.6 million EU naitonals who are in this country. They need to do this within the transition period. And if they don't manage to do it, those who have not yet been registered or don't have the right documents, risk being here, essentially, illegally as soon as the transition is over, which puts them in quite a vulnerable position. So this is something that's going to put a real strain on our administrative processes.

Now many of our listeners have written in with stories about how Brexit is affecting their employment prospects and their family lives. And we've got two typical examples here. One is a German citizen who's just finished an MBA here in the UK, and has started to work here. And told us that she worries her new job and her relationship with her boyfriend in the UK are at risk. She wants to stay in the UK, but doesn't want to give up her German passport in order to get a UK one. What advice would you give her?

And I'll just go onto the next one. Another listener says that she has been forced to choose between her marriage and her country as her Dutch husband-- as a result of Brexit-- has opted to go and live in Berlin after 30 years in Britain and running businesses here. She asks how Britain will stem the flow of scientists, academics, and entrepreneurs who are leaving the UK. Turning to you Katie, what advice can you offer to people who find themselves in these types of situations?

Yeah, well, I think with regards to the first lady, I think that she should rest assured that she should be able to stay in the UK post-Brexit even if she hasn't completed a period of five years as yet. The government's been clear that as long as people arrive before a yet-to-be-determined specified date-- which she certainly has-- they will be able to remain and will obtain a new settled status in the UK. So her job and her relationship should be secure.

Obviously, the fact that we haven't quite got clarity on exactly what's going to be required in terms of evidence-- think five years of residence and what these five years need to involve-- is still a concern for a lot of people. So more information about that and some certainty on that would be welcome. With regard to people choosing to leave the UK, that is something that we're certainly seeing a lot of.

I think because we have waited a long time to get certainty on the questions regarding what's going to happen to EU citizens in the UK, some people are a bit fed up. And so we are seeing that they're looking to leave. And fewer people are looking to come to the UK.

Can I just interject and ask you something-- a technical question? This lady who doesn't want to give up her German passport to get a UK one, my understanding was that the German government did allow dual nationality as long as it's with another EU country.

That's correct, yes. There are a few countries which don't. So the Netherlands, for example, don't permit dual nationality. Austria, Norway and a couple of others. But Germany does have this special provision where we're looking at dual nationality with another EU country. And we're hoping that that would be something that would be maintained as long as they obtained it before the UK left the EU.

Katie, are these typical of the types of problems that you're being asked to help with at the moment in your work as an immigration lawyer?

Yes, we've obviously seen a huge surge in the number of European citizens, largely people who've been here for a very long time who have been coming forward to obtain confirmation of their permanent residence, resolve situations regarding their children citizenship. So a lot of these European citizens actually have British children without realising it. So obtaining British passports for them to confirm that. And also, where possible, and there aren't issues with dual nationality, going on to naturalise them. Most of our clients where it's a possibility are looking at naturalisation because it's the only way, prior to us leaving the EU, to secure their status and ensure that they no longer have to worry about it.

Katie, can I just ask you-- given that we know that after Brexit, EU nationals here are going to have to apply settled status, is there any point in applying for permanent residence now?

Yeah, we still think that there's value to it's for a couple of reasons. One of which is obviously that the government's indicated that those who have confirmation of permanent residence will be able to use a sort of light touch process to obtain the new settled status. But also, in the absence of any documentation confirming status or residence over a period of time, we're concerned how we're going to be able to distinguish between those European citizens who have been here and have been resident prior to departure from the EU and those who arrive afterwards. And that's going to be something which is likely going to be important for employers, landlords, and accessing services in sort of a hostile environment.

Now one issue we haven't discussed is what will happen to EU citizens who come to the UK after the transition? Katie, perhaps you'd like to add some comments about that.

Yeah, I mean we don't know yet what exactly the scheme will be that they'll be subject to. Will it be more akin to the current schemes that we see in place for non-EU nationals, which are quite onerous, have become much stricter over the last few years. We've seen that the skill level for these individuals has risen. So it's much harder to come to the UK if you are a lower-skilled migrant from outside the EU. We've seen salary levels rise. And we've seen additional costs being passed on to employers in the form of the immigration skills charge. So if there's going to be a system like that in place, it's going to be much more difficult for UK employers to access EU migrants for employment going forward, which we think is likely to be very problematic.

And I think, just to add to what Katie was saying, one of the biggest problems here is employers who want to bring in very high-skilled migrants will probably be able to continue to do so because they'll be earning enough. And their qualification levels will be enough to meet whatever threshold the government sets.

But the real problem and the real question that we have going into this is what we're going to do about low-skilled labour. Because you know sectors like construction, retail, manufacturing, agriculture, depend on a very large pool of EU migrant labour, some of which is seasonal which just comes in for a short period of time. And that's the sort of thing that's going to be very difficult to manage under a stricter immigration regime.

OK, now let's move on to look at the issue of how Brexit will affect our border controls. And here, I'd like to bring in an email we have received from a recently retired chief immigration officer. He says, "the public are completely in the dark as to how Brexit will affect immigration to the UK and that the pressures of illegal immigration are likely to rise not fall. This is because the main obstacle to removing or deporting people is one of documentation. It is nigh on impossible to secure travel documents from the vast majority of countries. And if there is no travel document, there can be no deportation. If people provide false personal details, this problem is made even worse."

He goes on to say, "added to this, the UK currently removes people to France under a gentlemen's agreement that will likely disappear once we leave the EU. And the UK is also likely to lose the right to remove third country nationals to European countries if we are no longer part of the Dublin convention. Europeans will, at least to some degree, become controllable nationals," he writes. "But the UK border force will require a significant injection of cash and staffing increases if it is to cope with the increased demands of taking back control of our borders." Now Helen and Katie, do these comments mirror your understanding of the situation we're heading to post-Brexit?

I think that is correct. Certainly with regard to the Dublin Agreement on the return of refugees where they've already made a claim in a previous European country. Those are going to have to be considered and whether we're going to be able to enter into a new agreement regarding those. I certainly think that issues at ports are going to increase.

Because if we consider the sort of EU line and the non-EU line and taking all of the European citizens out of one and into the other, and then having to justify their entrance into the UK, explain the purpose, how long they're staying in the same way that any other non-EU migrant would, that certainly suggests that we're looking at considerably more delays at ports. And we have been told that we're likely to expect an ESTA-type system for those seeking to visit the UK from the EU.

Can you explain what the ESTA is?

So ESTA is the system that British citizens, for example, would currently have to go through in order to enter the US. So it would mean completing a form in advance, answering some questions and getting pre-approval. Of course, anyone who then has gone to the US, knows that they still have to stand in a queue and answer questions from an immigration officer. So it won't necessarily, in and of itself, help minimise those queues or reduce the burden on stretched resources at port.

If I could just come in on this issue of resources that the former immigration officer mentions. I think this is very important, and actually, the Home Affairs Committee recently has been investigating this. And it has been told by the former head of enforcement at UK immigration that he just blankly said, the UK cannot cope with the challenge of Brexit unless it has more resources put into the border.

And one of the really big problems here is that this is coming at a time of austerity. So the home office has had a cut in staff numbers. They've fallen by 9% between 2010 and 2016. It's day-to-day spending budget has gone down by 16% in the past five years. So actually, it's not just that they're not getting extra resources. They're actively having to cope all the time with the fact that their resources are actually in decline. And I think that is going to be a real challenge.

One way for them to help minimise the burden that they're going to see in resources, particularly as they seek to document up to 3 million European citizens, would be to look at those who've already obtained documentation in the form of confirmation of permanent residence. And deem that evidence of settled status in the UK without requiring them to undergo a further application process and the additional time it would take to casework those additional applications. And obviously, that's something that Brussels is very much in favour of as well. They've questioned why there has to be a separate application.

OK, well, that's all we have time for. My thanks to Helen and Katie. And thank you for listening. We'll be back next week for another unvarnished look at what Brexit will mean for Britain's trade, economy, public institutions, and private sector.

And don't forget to subscribe to our show on your favourite podcast app. And if you write a review, that will help other people find us too. You can also email us at brexitunspun-- that's all one word-- at ft.com if you have a question or would like to suggest a topic for future episodes.

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