Brexit May Make Thousands of Migrants Undocumented

On June 23, 2016, the United Kingdom (“UK”) held a referendum to decide whether it should withdraw from the European Union (“EU”), the economic and political union between twenty-eight European countries.[1] UK citizens voted to leave the EU by a percentage of fifty-two percent to forty-eight percent.[2] Despite multiple delays, the UK’s withdrawal from the EU, colloquially known as “Brexit,” has finally occurred more than three and a half years after the 2016 referendum.[3] As of January 31, 2020, the UK is no longer a member of the EU. Until the end of 2020, the UK and EU will operate within a transition period, during which the UK and the EU will continue negotiating the details of their new relationship. [4]

With the specter of Brexit came many issues which have yet to be resolved. The day following the Brexit referendum, the British pound plummeted in value and has continued to fluctuate.[5] Along with concerns about the economic implications of Brexit, many are concerned about migration between EU member states and the UK in a post-Brexit world. The fate of the immigrants already living in the UK following Brexit’s implementation is an additional concern. This blog examines those immigration-based concerns, beginning by examining the fear of immigrants that partially motivated Brexit, then examining the disastrous Windrush Scandal, then finally examining why some commentators are worried EU citizens living in the UK may become undocumented overnight.


I. Immigration Anxieties Before the Referendum

The Leave campaign, which pushed for Brexit, was heavily influenced by a fear of immigration and the supposed danger “apparently unprecedently [sic] high uncontrolled levels of immigration” posed to the UK.[6] In 2015, the year before the Brexit referendum, net immigration numbers were 336,000, an increase from past years.[7] Two-thirds of this figure was made up by EU citizens living in the UK.[8] At the time, Nigel Farage, the current leader of the Brexit Party, said the high number of immigrants in the UK demonstrated the government’s “complete failure to control immigration.”[9] A key slogan for the Leave campaign was “Take back control,” an ambiguous phrase often used in the Brexit Party’s discussions regarding immigration.[10] The Leave campaign propagated the idea that dire consequences would follow if the “uncontrolled” immigration to the UK from EU members was allowed to continue.[11] In 2015, the UK’s former prime minister, Theresa May (at the time acting as Home Secretary), stated, “[w]hen immigration is too high, when the pace of change is too fast, it’s impossible to build a cohesive society,” citing concerns about housing, employment, infrastructure, and welfare-state benefits.[12] Key to this rhetoric was a conflation of Europe’s refugee crisis with EU migration, a rhetoric that ignored the fact that the majority of the EU citizens living in the UK were temporary workers and students.[13] This notion “allowed [Leave campaigners] to play on the idea of the existential future of Europe,” presenting the EU as a failed economic and political project and implying the UK would see increased migration as EU members abandoned ship.[14] Perhaps as a result of Brexit’s nearing deadline, the UK recorded net immigration numbers of 277,000 in 2019, 48,000 of whom were EU citizens; this figure denotes the lowest number of net migration by EU citizens in six years.[15]


II. The Windrush Scandal

Now that Brexit has finally occurred, commentators are worried the UK’s withdrawal from the EU will drastically impact the lives of the EU citizens currently living in the UK, with many fearing an immigration crisis on the level of 2018’s Windrush Scandal.[16] The scandal related to the children of the Windrush generation, the first wave of Commonwealth immigrants who were invited to the UK from Caribbean nations between 1948 and 1971 to assist with post-war recovery efforts.[17] Following the Windrush generation’s arrival, the UK passed the 1971 Immigration Act, which gave indefinite leave to remain in the UK to all Commonwealth citizens already living there.[18] However, Home Office, the department of the UK’s government responsible for immigration, failed to keep a record of those granted permission to remain and also failed to issue any records confirming their status.[19] This decision had dire consequences. In 2012, changes in the UK’s immigration law “require[ed] people to have documentation to work, rent a property [and] access benefits, including healthcare.”[20] For the Windrush generation, many of whom lacked documentation proving their lawful right to live in the UK, this decision changed lives overnight. Many of those affected lost their jobs and homes and some were even deported because they lacked any documentation proving their legal status, “despite living lawfully in the UK for nearly all their lives.”[21] Following public outcry over the scandal and the immigration policies that had led to it, the UK’s government began working to remedy the situation, with the then Home Secretary Amber Rudd “describ[ing] the government’s treatment of the Windrush children as ‘appalling,’ [and] promising access to missing documents for those affected.”[22]


III. What Brexit May Mean for EU Citizens Currently Living in the UK

Brexit’s effects on the estimated three million EU citizens currently living in the UK (a figure which includes 900,000 children, nearly a third of whom were born in the UK) could be drastic.[23] In November 2019, just a bit more than half of the three million EU citizens living in the UK had received permission to remain in the UK beyond 2020.[24]The UK has threatened to deport all who fail to apply for new immigration status before the end of 2020 with very few exceptions.[25] According to Home Office, somewhere between ten and twenty percent of EU citizens residing in the UK may be vulnerable because of an inability “to provide documentary evidence of their time in the UK.”[26] Speaking to The Guardian, Kamena Dorling, group head of policy and public affairs at Coram Children’s Legal Centre said, “If just 15% of the current population of EU national children fail to ‘regularise’ their status before the cut-off point, 100,000 children would be added to the UK’s undocumented child population overnight, nearly doubling [the numbers of existing undocumented children].”[27]

The exact shape of the UK’s immigration policies after Brexit remain unclear, but some changes are certain. The UK’s government has been clear that it wants to end free movement, “the right of people from elsewhere in Europe to live and work in Britain, and vice versa;” the prospect of ending free movement has been received positively by some of the UK’s working class citizens, who feel their jobs are threatened by immigration, but has been met negatively by UK and EU students who hoped to study abroad.[28] The UK has also stated that it will no longer give priority to EU migrants hoping to enter the UK.[29] As for those EU citizens currently living in the UK, the UK government has promised to deport all who remain in the country without legal status after a December 2020 deadline.[30]

The future is uncertain for EU citizens living in the UK. There may be adverse effects for EU citizens currently living in the UK if the UK’s exit plan does not properly address the immigration consequences of the UK’s withdrawal from the EU. This plan must address the issue of documentary evidence or many EU citizens living in the UK may be forced to leave or become undocumented.

[1] Brexit: All you need to know about the UK leaving the EU, BBC (Oct. 29, 2019), (last accessed Nov. 17, 2019); The EU in brief, The European Union, (last accessed Nov. 17, 2019).

[2] Brexit: All you need to know about the UK leaving the EU, supra.

[3] Jen Kirby, The new Brexit deadline will be January 31, Vox (Oct. 28, 2019), (last accessed Nov. 23, 2019); Frank Langfitt, Brexit Day: What To Know When The UK Leaves The EU, NPR (Jan. 31, 2020), (last accessed Feb. 18, 2020).

[4] Langfitt.

[5] Jim Zarroli, Like The Empire Itself, The British Pound Is Not What It Used To Be, NPR (Aug. 29, 2019), (last accessed Nov. 24, 2019).

[6] Dominic Abrams and Giovanni A. Travaglino, Immigration, political trust, and Brexit–Testing an aversion amplification hypothesis, British Journal of Social Psychology (Apr. 1, 2018), 310, 310.

[7] Id; Net migration to UK hits record 336,000, statistics show, BBC (Nov. 26, 2015), (last accessed Dec. 1, 2019).

[8] Net migration to UK hits record 336,000, statistics show, supra.

[9] Id.

[10] Stuart Gietel-Basten, Why Brexit? The Toxic Mix of Immigration and Austerity, Population and Development Review (Dec. 1, 2016), 673, 673-4.

[11] Gietel-Basten at 676.

[12] Gietel-Basten at 677 (internal citation omitted).

[13] Abrams 311; Gietel-Basten at 676; Net migration to UK hits record 336,000, statistics show, supra.

[14] Gietel-Basten at 674.

[15] Andy Bruce, Net migration to the UK falls to lowest in almost six years, Reuters (Nov. 28, 2019), (last accessed Dec. 1, 2019).

[16] Lisa O’Carroll, Thousands of children ‘could become undocumented’ after Brexit, The Guardian (Mar. 18, 2019), (last accessed Nov. 23, 2019).

[17] Stephanie Hancock, ‘Windrush’ Scandal Highlights Heartless UK Immigration Policies, Human Rights Watch (Apr. 16, 2018), (last accessed Nov. 21, 2019); Windrush generation: Who are they are why are they facing problems?, BBC (Apr. 18, 2018), (last accessed Nov. 23, 2019).

[18] Amber Rudd: Windrush generation treatment ‘appalling’, BBC (Apr. 16, 2018), (last accessed Nov. 23, 2019).

[19] Hancock, supra; About us, Home Office, (last accessed Nov. 21, 2019).

[20] Amber Rudd: Windrush generation treatment ‘appalling’, supra.

[21] Hancock; Windrush generation: Who are they are why are they facing problems?, supra.

[22] Hancock; Amber Rudd: Windrush generation treatment ‘appalling’, supra.

[23] O’Carroll.

[24] Andrew MacAskill, Eu citizens warned over missing Brexit residency deadline, Reuters (Nov. 14, 2019), (last accessed Dec. 1, 2019).

[25] Id.

[26] Id.

[27] Id.

[28] MacAskill; Benjamin Mueller, What Is Brexit? A Simple Guide to Why It Matters and What Happens Next, The New York Times (Oct. 29, 2019), (last accessed Dec. 1, 2019).

[29] MacAskill

[30] Id.