The Brain family are out of time. The deadline for Gregg, Kathryn and their son Lachlan to secure a visa passed this week, and the end to a five-year saga that has been in the public eye for months is in sight.
But their story has had more twists in it than a Highland road, and remarkably even at five minutes past the 11th hour we still don’t know whether it has a happy ending or not. At the time of writing, a job offer from a “major Scottish company” had emerged that could keep them in the UK. In the meantime, they have been asked to leave the country voluntarily, something Gregg Brain clearly isn’t willing to contemplate. Their fight is “a hell of a long way from being over”, he said this week. Deportation looms.
It’s easy to see why the case has provoked an outcry – and it’s got nothing to do with what language Lachlan has been schooled in.
It offends a British sense of fairness that the Brains came here on the promise of being able to build a life in Scotland, only to have that pulled from under them once they arrived.
They are standard-bearers for the case against a rigid, one-size-fits-all immigration system. They come from a country with deep cultural ties to the UK, and want to put down roots in a part of Scotland that desperately needs an influx of young families. They have skills to offer and are willing to work, and the thought of a child being uprooted and having their schooling interrupted – whether in Gaelic or English – is offensive.
It’s easy, too, to think that unfortunate cases like the Brains are isolated ones. In fact, Theresa May’s government has created more than half a million of them.
The Prime Minister’s refusal to offer any firm post-Brexit guarantees to EU nationals living and working in the UK puts a significant proportion of them in the same bracket as the Brain family, anxiously waiting to find out what course their lives will take.
The Social Market Foundation think-tank has estimated as many as 590,000 EU nationals will not have met the five-year residency requirement to stay in the UK once Brexit finally arrives. The threat of deportation isn’t imminent, but the two-year Article 50 timeline is a ticking clock counting down to a point when they will face the same scenario as the Brains. In the meantime, they are being used as bargaining chips in a negotiation with the EU over the rights of hundreds of thousands of UK nationals in Europe, guaranteeing a long, anxious wait for their fate to be decided in Whitehall and Brussels.
In one sense, EU residents’ case is even stronger than that of the Brains. The government had already announced it intended to abolish the post-study work visa at the end of 2010 when the family moved to Scotland the following year.
For the most recent EU arrivals to the UK, Brexit was an unforeseeable calamity. It was only three and a half years ago that David Cameron gave his fateful “Bloomberg speech” committing the Tories to holding an in-out referendum on EU membership. There certainly wasn’t any mention of an EU referendum in the 2010 Conservative manifesto.
Crucially, unlike the Brains, the anonymity of multitude means no-one will ever learn their names, or what classes their children could eventually be pulled out of. They have backing on the political stage, particularly from the Scottish Government, but none of the personal support the Brains have had from their MP, Ian Blackford, and others.
On the contrary, delegitimising EU residents’ claim to belong in the UK can only serve to fuel some of the xenophobic abuse directed at minorities since the referendum. Over the next two years, they’re in this alone.
In the absence of any reassurance from the elected government, it has fallen to civil servants to attempt to offer some clarity. At the home affairs select committee last week, Mark Sedwill the Permanent Secretary at the Home Office, said even though many EU nationals would have to await the outcome of Brexit negotiations, there would be “no knocks on the door”.
There is a serious question mark over whether that is a promise that can be kept. Immigration enforcement is a grubby business. There’s no dignified way to tell someone they’re not welcome in the place they call home, and there’s no humane way of getting them to leave.
There was a reminder this week with news that around 20 staff working at the Byron Burger restaurant chain in London were deported after being called by their employer to attend a training meeting – only to find immigration officers waiting for them.
Many of those rounded up will have known they could not legally work in the UK, but the tactics appear underhand, and while the company has to comply with the law, it too must answer questions about the diligence of its hiring practices. Byron says it was given “counterfeit information” by its employees.
By contrast, EU nationals have every right to be here, and their employers have hired them perfectly legally – but the end point could eventually be similar. Hundreds of thousands of workers from the EU are in the same kind of casual jobs as the Byron Burger staff. Many would go home, but others could disappear into the black economy.
Sedwill also insisted the far greater number of EU nationals who already have indefinite leave to remain – roughly three million, including your correspondent – would see no change after Brexit.
But David Davis, the Brexit secretary, has indicated a willingness to shift the goalposts, introducing the idea of a “cut-off” on free movement rights to avoid a “surge” in numbers. That date remains a mystery. EU nationals arriving in the UK right now have effectively been put on notice.
Whatever guarantees EU nationals are eventually given, administering a system that separates out new arrivals from decades-long residents in the UK will be a nightmare. EU nationals entering the UK need to do little more than show a passport and apply for a national insurance number. The Migration Observatory at the University of Oxford has estimated that registering all of them could take 140 years. There is ample space for people to fall between the cracks.
Even though time has run out for the Brains, they should get a reprieve. So should hundreds of thousands of EU nationals, who have all too much time to wait and wonder what comes next.