Border Control

Taking back control of our borders: Where are we now?

In January 2019 I wrote a piece in these pages about Brexit and the UK government’s quest to ‘Take Back Control’ of our Borders. At the time it was still unclear how or when the UK would actually leave the EU, or when ‘free movement’ would end.

Fast forward two years. On 1 January 2021, the Brexit Transition period will come to an end; as will the freedom of EU/EEA citizens to come to the UK to live, work and settle here without prior permission. We will finally ‘take back control of our borders’. Or will we?

On 13 July 2020, the Home Secretary published further details of the new UK Points Based Immigration System. This will take effect on 1 January 2021, whereupon the free movement of EU/EEA nationals entering and remaining in the UK will theoretically come to an end. Citizens of all countries (except the UK and Ireland) will thereafter require a ‘permission’ to enter or remain in the UK.

Over four million EU/EEA citizens already residing in the UK have now applied to stay here under the EU Settlement Scheme (EUSS), with the vast majority having been granted. The Scheme will remain open to those who enter before 31 December 2020 and apply for it before 30 June 2021; whereupon it will close. Otherwise, EU/EEA visitors will still be admitted at the border without visas for six months; but those coming for more than six months (eg to work/study/settle in the UK) should apply ‘on-line’ for permission to do so, in the same way as non-EU/EEA citizens do now.

According to the government’s plan, all visitors and migrants (including EU/EEA nationals) coming to the UK will ultimately require either a visa or a new electronic travel authorisation (ETA) to enter. It says that who are given permission to stay will be given ‘written confirmation’ of their immigration status; but they will not be issued with any physical token or permit. The plan also suggests that to work/rent/study etc will be verifiable by a new ‘on-line’ service - thus reducing the need for employers/landlords to check paper documents.

With just three months to go until the end of the transition period, it is still not clear how these changes will work in practice, either at the border or inland. At the border, the UK Border Force continues to rely heavily upon ‘e gates’ to admit EU/EEA passengers to the UK. Even with the huge reduction in traveller volumes caused by the Covid-19 pandemic, there is no indication that they intend to diverge from this course. Indeed the government has demonstrated in the past that it has been willing to extend the use of e gates to cohorts of passengers who are already subject to immigration control, and would normally require an examination and leave to enter in writing from an immigration officer at the UK Border.

It is hard to see how this strategy aligns with the concept of ‘taking back control’, at least in the short term. Leaving aside the very visible means of evading UK Border Control via small boats on the English channel, or the less visible means of entering illegally by way of false or counterfeit documents, the most common method to evade immigration controls is to enter as a visitor and then overstay and work illegally.

In my day as an immigration officer at Heathrow, all foreign nationals (including EU/EEA nationals) needed to obtain permission to enter from one of my colleagues or myself to enter the country. This would only be given if we were satisfied that (a) the passenger had a valid passport (and entry clearance if required); and (b) that they met the requirements of the immigration rules. In the case of visitors this meant finding out how long they were going to stay and why; and whether we believed they were going to stick to their time limit. If we were so satisfied, leave to enter would be given in writing by way of an entry stamp in the passport, which was plain for all to see. If we were not so satisfied, the passenger would be refused entry and returned quickly whence they came. Indeed, many of my early refusals were passengers a from European countries who were seeking entry for a short period; when further examination indicated that their true intention was to remain in the UK permanently.

Which brings me back to today. E gates cannot do the job I used to do; interrogate passengers as to purpose and duration of stay. They cannot grant or record leave to enter. They were designed specifically to verify the nationality and identity of passengers who were not subject to immigration control. The only eligibility test to pass through an e gate is the possession of an ‘e passport’ (to check the holder’s face against the image on the digital chip in the passport) and age (because facial recognition technology only works above a certain age). The gates can conduct checks against the UK watch list, and the date of entry and name record may be retained. But any passenger wishing to avoid letting on the real purpose and duration of stay could easily meet these requirements, pass through the UK Border and remain undetected in the UK for an indefinite period.

In normal times we would expect to see about 30 million EU/EEA passport holders coming to the UK, with the vast majority entering by way of an e gate. The Home Office has conceded that under the current system it is impossible to say how many people are staying in the UK illegally. Estimates suggest that there may already be over a million people remaining in the UK without permission, with an additional 100,000 overstayers added to the total each year. This is before we even consider the prospect of EU/EEA overstayers when freedom of movement ends, and how to deal with them.

A national identity register
Which brings me to the vexed question of immigration enforcement. Although records are kept of those who have been granted temporary or permanent permission to remain under the EU Settlement Scheme, no physical evidence has been issued to them. There may well be many more who have been living in the UK for many years who have not yet applied for settled status. With the Home Office still smarting from the Windrush scandal, this raises concerns that there will still be categories of people in the UK (including EU citizens) who will not automatically feature on the new ‘digital register’; and may improperly be denied employment or accommodation under the new system.

I have long argued that the only effective way to control illegal migration in the UK is to build a national identity register. The idea of everyone clutching an ID card - and it being demanded by sinister officials – was always nonsense and is out of date now. We have the means of providing everyone with on-line ‘accounts’ to manage the evidence of their existence – a virtual version of the tin box stuffed with the papers that live under our stairs. Like that box, its contents belong to the individual; and they can share it with whomsoever they choose. This would ensure that everyone residing in the UK had some form of token or credential which recognises their status as either a British or Irish citizen, or as a foreign national who has temporary or indefinite permission to remain in the UK. Then – and only then – could the government consider a return to a compliant environment whereby third parties such as employers and landlords could reasonably ask to make judgements as to whether their employees or tenants have lawful status in the UK. Without this, we are already seeing signs that some EU/EEA nationals may be denied tenancies because they cannot show lawful residence in the UK  - and the potential development of a second wave Windrush disaster.

As things stand, there is little that border officials or enforcement officers can do to verify how long or how many times EU/EEA nationals have been here. In most cases they will not be given the opportunity to examine passengers to determine admissibility on arrival, like I was. Their best hope is that the promised ETA system will deliver a more rigorous form of examination prior to travel; but that is still some two– three years away.

Equally, it is reasonable to suppose that immigration enforcement will not arrest and deport thousands of EU/EEA nationals for failing to produce evidence that they have never needed before, even where there is no other independent evidence of their lawful status in the country. A readily accessible register of all foreign nationals (including EU/EEA nationals) lawfully residing in the UK would be required to enable them to do so; and that still seems some way off.
 
So, it is hard to see how we will be ‘taking back control’ of EU/EEA immigration on 1 January 2021. More likely we will see ‘business as usual’, with virtual free movement continuing, at least until the UK ETA is implemented. A more likely target date for delivering effective immigration controls over EU/EEA migration is 2025, assuming that the new strategy can be implemented by then. Meanwhile, we can only conclude that taking back control of our borders – at least insofar as EU/EEA immigration control is concerned – remains very much a ‘work in progress’ rather than a ‘fait accompli’.

Written by Tony Smith CBE. Tony is a former Director General of the UK Border Force with over 40 years’ government experience in immigration and border control. He is now an independent border management consultant, managing director of Fortinus Global Ltd, and chairman of the International Border Management and Technologies Association.