Last night, while the Labour Party was conducting a dramatic about-face on the new immigration bill, the government quietly released its plans for EU immigration if we leave the EU without a deal.

The government’s position on this issue has been extremely unclear for many months. During her testy session with the home affairs committee last October, immigration minister Caroline Nokes said that in the event of a no-deal exit employers would have to treat newly-arrived and already-settled EU citizens differently even though she agreed it would be “almost impossible” for them to do so. Sajid Javid publicly corrected Nokes the next day, and she subsequently wrote to the committee to clarify that what she’d said was not accurate.

So a more thorough statement of what the government’s plans actually are is long overdue. Unfortunately the policy is still quiet on vital details and would almost certainly cause disruption to the lives of EU citizens already living here, despite its intentions.

In summary, the government’s policy is as follows:

• There will be no change at the border: EU nationals will still be able to enter with a passport or ID card, including using e-gates
• On arrival, EU nationals will be automatically granted three months’ leave, including the right to work and study
• To stay longer, they will need to apply for a new form of status: “European Temporary Leave to Remain”
• European Temporary Leave will last three years and require a fee to apply. It will be subject to security and criminality checks, but not other criteria (eg. employment or salary)
• Employers, landlords and “other third parties” will not be asked to enforce this new status: all EU citizens will be able to evidence their right to be in the country with a passport or ID card
• The new immigration system will be implemented from the start of 2021, ending all these arrangements. Those with European Temporary Leave will keep it but will have to apply for some other form of visa to stay longer than their original three years

There are a number of serious issues with this plan. The most worrying relate to the enforcement of the new rules, through the rebranded-but-unreformed ‘hostile environment’.

Under the government’s approach, EU citizens who arrive on 29th March 2019 will have a completely different immigration status to those who arrive on 30th March. But there will be no documentation to differentiate them: the vast majority of already-resident Europeans will not have received settled status.

The government says it will not ask employers, landlords or others to check the specific status of EU citizens: a passport will be enough. But the government doesn’t “ask” these third parties to conduct immigration checks – the third parties do so in order to avoid committing criminal offences, with serious penalties. If a landlord rents to an EU national who arrived post-Brexit, has been in the UK for more than three months and hasn’t applied for temporary leave, they will be committing a crime.

Presumably the government has some plan to exempt people in this situation from prosecution, but it’s not at all clear what that plan is – this is not a change that could be made by simply introducing new immigration regulations. In other words, new legislation will be needed by 29th March.

Even if the legal details are worked out, the policy issues remain. There is ample evidence that employers and landlords are increasingly cautious about the immigration status checks they have to carry out. In the event of a dramatic no-deal exit, that caution would very likely extend to preferring UK citizens to Europeans whose status is unclear, even if that’s not legally required of them. The same would go for NHS administrators and local authority officials controlling access to public funds. That would affect newly-arrived EU citizens, but also the long-resident because there will be – as Caroline Nokes pointed out last year – no way of telling between them.

That problem extends to the border. From what we can tell, when an EU national scans their passport they will be granted three months’ permission to stay. Since there won’t be any way to distinguish them, that status may also be granted to resident Europeans who are simply returning from holiday. That raises the risk that three months later they will be flagged as an overstayer – meaning they could have their bank accounts closed or even face raids from immigration enforcement.

The Home Office’s track record does not give much reason to think that these kinds of mistakes would be avoided. More generally, millions of Europeans would suddenly find it much more difficult to prove that they’re not committing one of the huge number of immigration offences on the books – from overstaying to violating visa conditions to “driving whilst unlawfully present”. It’s not very likely that there will be many prosecutions of EU nationals for these offences. That is not enough reassurance to make this a sensible policy.

There’s also a very high chance that European Temporary Leave will cause more trouble as it’s phased out. If the EU migrants arriving up until December 2020 have similar employment profiles to those who’ve arrived over the past decade, then the vast majority will not be able to access any other kind of visa under the government’s plans for the new immigration system. When their visas start to expire in April 2022, many will choose not to leave the country and become part of a ‘shadow population’ without access to services and vulnerable to exploitation.

Apart from the problems it’s likely to create, the government’s plan is baffling because it serves no actual purpose. The new system doesn’t give any more ‘control’ over immigration than at present: European Temporary Leave won’t have any criteria that can’t be applied within free movement rules.

Instead it creates a pointless new administrative caseload for a Home Office that is already struggling to deal with its current work and, at the same time, needs to process settled status applications 12 times faster than it did in its pilot. The government’s plans are clearly inspired largely by the need to show that something has changed after Brexit – even if the change is all for the worse.