When the UK unveils its full offer on EU citizen rights on Monday, the concept of a “grace period” for those affected will be one of the most novel and significant of the whole Brexit package.
The two years of “grace” aims to help the 3m EU nationals living in Britain or arriving in the country before the Brexit deadline, giving them extra time to arrange their affairs and status in the UK.
But its true value may be for British ministers and Brexit negotiators. The policy subtly helps overcome two big challenges: Westminster’s hypersensitivity on migration issues and the practical limits to introducing a new immigration system in the UK after Brexit.
For now, EU officials are most preoccupied with what they see as flaws in an outline offer made by Theresa May, Britain’s prime minister, at a summit last week. Donald Tusk, European Council president, described the offer as “below expectations” because it failed to match the full range of existing EU rights, or give guarantees on how they are applied.
But the structure of the proposal — and the idea of grace periods — has piqued interest. One EU diplomat working on Brexit said the concept was “fascinating” and might prove “very useful” in later stages of the negotiation on a transition.
“It’s unlikely that the government manages to get a system in place for March 2019 that can administer work permits, identification at and behind the border, access to welfare and all the other issues needed for a new regime to work,” said Mats Persson, head of international trade at EY and a former No 10 adviser.
He points out that although Mrs May’s citizen rights offer is aimed at the “stock” of approximately 3m EU nationals in Britain, “it may be that the two-year grace period also becomes the transition period during which free movement in effect continues”.
That is important because the EU has made clear that a transition out of the bloc that includes single market participation would entail Britain accepting all EU laws, including free movement of people.
“A transition period on free movement for both stock and flow would give the government more time, reassure EU citizens, help UK businesses to adjust as well as help facilitating a wider transition deal,” added Mr Persson.
Mrs May’s need to navigate choppy migration politics was, however, the main immediate usefulness of the grace period idea.
The prime minister’s team worried that offering full settlement rights to all EU migrants in Britain before March 2019 would seem to offer a free pass to settlement in the UK.
Even though net migration is falling in Britain, the scars remain in Westminster from the liberal, open-door approach to people from the 10 countries that joined the EU in 2004. Jack Straw, former UK foreign secretary, later admitted it was a “spectacular mistake” not to realise it would prompt a migration rise.Mrs May considered tackling fears of another unexpected influx by setting an earlier cut-off date for her offer to EU citizens, such as the March 2017 start to the Article 50 exit process. But the EU had warned Britain it would breach its obligations as a member state by discriminating between EU nationals before 2019.
Downing Street’s solution was to suggest a fudged cut-off date between 2017 or 2019, while using the “grace period” to alleviate EU concerns about an early deadline.
In practice, even British officials admit that the cut-off date is expected to be set at 2019 during negotiations. This would smooth the path to a deal and give the UK time to implement the EU immigration system.
The issue would be what then happens to the “grace period”. Extending the concept post-Brexit may allow both sides to achieve their goals during a transition. A two-year grace period would in effect meet the EU’s free movement conditions. At the same time, the UK could say it would apply its new immigration criteria to all people arriving during the grace period.
That is possible because full EU permanent residence rights only kick in after five years.
Speaking on Sunday, David Davis, the UK’s Brexit secretary, sidestepped questions about free movement and the oversight of European courts during a transition. But he indicated that a period of adjustment would be needed. “This is not an ideological thing — it is a practical thing,” he told the BBC.
A 15-page paper on EU citizens would be published on Monday in parliament, he said, adding that he thought the deal on EU citizens could be agreed “moderately quickly”.