Legal Briefing

Brexit Miller case – the impact of the UK’s exit from the European Union on immigration

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Immigration | 18 May 2017

Following the referendum on 23 June 2016, the UK public voted to leave the European Union. The subsequent political and media storm that ensued focused on what shape the exit deal would take including when and how article 50 of the Treaty on European Union 2009 would be triggered. Nine months after the UK voted to leave the European Union, prime minister Theresa May formally triggered Article 50. The media attention now has turned to focus on the UK’s negotiations with the EU.


At the Conservative Party conference in October, prime minister Theresa May indicated that the party intended to trigger article 50 in March 2017, thus commencing the two year negotiation period before the UK formally exits the EU. This announcement stirred up fresh commentary on the shape of the post-Brexit landscape. Gina Miller, a British business owner and philanthropist, together with Deir Dos Santos, a hairdresser, issued a claim at the High Court against the government, disputing its legal authority to trigger article 50.

R (Miller & anor) v Secretary of State for Exiting the European Union [2017]

The case dealt with the purely legal question of whether the government was entitled to trigger article 50 without both Houses of Parliament passing legislation enabling it to do so and royal asset being given by the Queen.

The basis of the argument derives from the nature of the British constitution and the rule of law, which requires there to be a separation of powers between the legislature (Parliament), judiciary (courts) and the executive (the government of the day). The underpinning characteristic of the constitution is that of parliamentary sovereignty which is explained by constitutional theorist, Professor Dicey, as meaning that Parliament has:

‘… the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament’.

The Miller case considered whether it would be possible for the government to make a formal notice to leave the EU, effectively ending rights conferred by UK domestic law on British citizens and therefore to set aside legislation of Parliament, which it is not normally entitled to do.

On 3 November 2016, the High Court found in favour of Miller that the government did not have the authority, without parliamentary consent, to trigger article 50. The government appealed the decision and on 24 January 2016 the UK Supreme Court in the UK dismissed the appeal and upheld the decision of the High Court. It was also widely agreed by the parties involved in the case that once article 50 is invoked that the notice could not then be rescinded, emphasising the importance of having a clear strategy entering into the negotiations.

Practical impact of the judgment

Miller has been widely viewed as a landmark case that has redefined the parameters of the government’s powers to act without parliamentary consent, and will set a binding precedent for future governments.

For those opposed to leaving the EU and opposition parties, this represented political success as it forced the Conservative government to be more open about its intentions entering into the Brexit negotiations, and has undermined its position in respect of the exit process. For those in support of Brexit, it represents interference by an unelected judiciary and a way to side-step dealing with a particularly divisive public vote. With general elections approaching in France, Germany and Netherlands during 2017, it has prompted EU leaders to confirm that the UK will not be able to negotiate a better deal than if it were to remain in the EU, due to fears that other members of the bloc may also seek to leave if a hard line approach is not seen to be taken.

The Miller judgment prompted the government to specify in broad terms what its approach will be to the UK’s exit from the EU, and in February 2017 it published a White Paper setting out its strategic plans for the negotiations to leave the EU. The White Paper sets out the government’s 12 policy principles in respect of its negotiation strategy:

  1. Providing certainty and clarity.
  2. Taking control of our own laws.
  3. Strengthening the Union.
  4. Protecting our strong historic ties with Ireland and maintaining the Common Travel Area.
  5. Controlling immigration.
  6. Securing rights for EU nationals in the UK and UK nationals in the EU.
  7. Protecting workers’ rights.
  8. Ensuring free trade with European markets.
  9. Securing new trade agreements with other countries.
  10. Ensuring the United Kingdom remains the best place for science and innovation.
  11. Co-operating in the fight against crime and terrorism.
  12. Delivering a smooth, orderly exit from the EU.

Immigration law update

Principle 5 of the White Paper sets out the proposed changes that will be made to the UK’s immigration system. It confirms at paragraph 5.3 that:

‘We will design our immigration system to ensure that we are able to control the numbers of people who come here from the EU. In future, therefore, the Free Movement Directive will no longer apply and the migration of EU nationals will be subject to UK law.’

This position comes as no surprise and echoes the government’s previously communicated intentions to reduce net migration. This was a key factor for many members of electorate when voting in the referendum and the White Paper confirms this position.

It also confirms at Principle 6 that:

‘Securing the status of, and providing certainty to, EU nationals already in the UK and to UK nationals in the EU is one of this government’s early priorities for the forthcoming negotiations’.

The Free Movement Directive referred to is Directive 2004/38/EC (the Directive), part of European legislation, which underpins European citizens’ right to travel, work and live in member states of the EU. It grants nationals of EU member states the right to enter other member states for a period of 90 days, during which time they do not have any restrictions as to what they are entitled to do. Following the 90-day period they must ensure they are exercising treaty rights. This means they should fall within the category of either worker (employed or self-employed), self-sufficient, student or retired. Under the Directive, non-EU family members of EU citizens exercising treaty rights are entitled to the same rights conferred by the Directive. After a period of five years, EU nationals and their family members, who have been exercising their treaty rights for a continuous period, are entitled to permanent residence. The system therefore affords almost unrestricted access to the UK to EU citizens and their (qualifying) family.

The White Paper has confirmed that the Directive will no longer apply when the UK leaves the EU and that EU nationals will then be subject to UK immigration law. It is expected that EU citizens will be subject to the same requirements as other nationalities, although much will depend on the outcome of the UK’s exit negotiations. The White Paper has also confirmed that the government aims to secure the status of those EU nationals who are already living in the UK, although it is disappointing that the right of EU nationals to continue living and working in the UK has been reserved as a bargaining tool for negotiations.

The White Paper sets out the government’s intention to consult with expatriate groups and EU businesses so that the priorities of UK citizens living in EU member states will be taken into consideration, such as access to free healthcare, which will no doubt result in strong lobbying in an attempt to minimise impact or maximise the benefits for businesses and groups affected by the UK’s exit from the EU.

The final structure of these intended changes is currently a matter for speculation. The government has ruled out the imposition of a points-based system similar to that of the Australian immigration system. A spokesperson for Downing Street confirmed in September last year that:

‘…the PM has said many times in the past, a points-based system will not work and is not an option’.

The uncertainty of the future UK immigration landscape has given rise to the opportunity for MPs and interested groups to assert their opinions on how the law should be changed and whether other groups will be granted the superior position in terms of studying, living and working in the UK that EU nationals currently hold. MPs have debated whether Commonwealth citizens should be granted fast-tracked visas and given preferable visa treatment to strengthen the UK’s relationship with Commonwealth countries. Many of the 52 Commonwealth countries require visas to enter the UK and face lengthy queues at airports whereas EU citizens benefit from fast-track queuing. It has been raised that the UK’s exit from the EU could be an opportunity to renew the UK’s relationship with Commonwealth countries, given that the UK will be looking for new trade agreements once it leaves the single market.

While it is clear that the government intends to impose methods to control immigration from EU countries, the White Paper confirms that the UK aims to have negotiated a new deal ‘by the time the two year article 50 process has concluded’, with an intention for a phased implementation period to ‘give businesses enough time to plan and prepare for those new arrangements’. The government has therefore left it open for immigration controls to not be changed immediately the UK exits the EU. Nevertheless, it remains to be seen how the government will achieve its promise to reduce net migration to the tens of thousands.

As a result of the uncertainty surrounding immigration control there has been a significant increase in EU nationals applying for permanent residence or residence documents confirming their status in the UK, and it is expected that this will continue until the rules change following the two year negotiation period. It also appears that in light of the government’s promise to control migrant numbers it will be unlikely to provide visa preference to other groups such as Commonwealth citizens or family members of UK visa holders, unless it chooses to balance the potential for tightening the political relationship with other countries over the desire for immigration control expressed by the electorate in the referendum.

Conclusion

Despite the significant media attention and celebratory sentiments from members of the Remain campaign, the Miller judgment is unlikely to have a significant impact on the UK’s exit from the EU. In practical terms, the judgment forced the government to seek approval from parliament before Theresa May formally notified the EU of the UK’s intention to leave. The government was also pressured into producing a White Paper setting out its policies, following months of criticism that the government’s Department for Exiting the European Union did not have a plan for the UK’s exit from the EU.

While the White Paper does not shed a great deal of light on the specific details of the immigration reforms that will take place, it does confirm that the Free Movement Directive will no longer apply when the UK leaves the EU, which strongly suggests that EU nationals coming to the UK will be subject to a work permit system. It will remain to be seen whether the government’s plan to control immigration from EU nationals will be effective, and how successful negotiations will be in achieving the goals set out in the White Paper.