Legal Briefing

Brexit Update

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Brexit | 25 October 2017

The recent Government policy document leaked and published by The Guardian newspaper has given an indication of the post-Brexit immigration strategy. Despite not representing formal policy, given its unofficial status and the fact that the Government has yet to hear views from numerous stakeholders including the Migration Advisory Committee (MAC), current Government thinking is represented within the document, including the two year “implementation period” which has been increasingly discussed recently.

After the UK leaves the EU in March 2019, the freedom of movement of people will come to an end. The leaked policy document indicates the Government’s intention to keep economic migration between the UK and the EU flowing, acknowledging the economic, cultural and social benefits of such migration to the UK. However, the document also indicates the Government’s commitment to addressing public concerns over uncontrolled immigration (a significant factor in the referendum result) and sets out a new immigration system that will permit only those with prescribed desired skills to enter.

The document also makes clear that the implementation of future arrangements will be without prejudice to the Common Travel Area (CTA) between the UK and Ireland and the Crown Dependencies (as the CTA is a separate arrangement that predates the UK’s membership of the European Union).

Pathway to reform

The document envisages a 3-phase approach to a new immigration system, including an “implementation period” of at least 2 years.

Phase 1

  • The European Union (Withdrawal) Bill, also known as the Great Repeal Bill, will convert EU derived law into UK law so as to avoid a “cliff edge” scenario when the UK leaves the EU in March 2019.
  • An Immigration Bill will be introduced to Parliament to repeal the current EU derived free movement provisions so as to bring EU citizens within UK immigration law.
  • EU citizens who arrived and became resident before a (as yet undetermined) “specified date” will be eligible to apply for “settled status”.
  • In order to maintain smooth entry to, and exit from, the UK for legitimate travellers from the EU, a system of “deemed leave to enter” will give EU citizens automatic permission to enter the UK and to use electronic passport gates.
  • EU citizens, following Brexit, will be required to enter the UK on a passport rather than a national identity document.

Phase 2

  • Phase 2 is a temporary implementation period enabling a smooth transition to new arrangements whilst introducing the core components needed to move towards the future system. During this period, the free movement directive will no longer apply.
  • The implementation period will include a “grace period” of up to 2 years for EU citizens, who were resident in the UK before the “specified date”, to apply for new residence documentation.
  • The draft policy envisages relatively few changes to the current rules concerning access to work, study, self-employment or self-sufficiency for EU citizens to during the implementation period.
  • EU citizens will be required to register with the Home Office to obtain permission to reside and there may be changes to family reunion rules.
  • The criteria for a residence permit will include basic proof of employment/self-employment or student status, or self-sufficiency, building on the criteria set out in the free movement directive.
  • The residence permit will show entitlements, such as the ability to settle permanently in the UK. Those who are working in “highly skilled occupations” and who arrived after the “specified date” may retain the right to settle after 5 years continuous residence, but those in less skilled occupations may not be eligible to do so. The criteria or evidence applicable to highly skilled occupations is not further defined.
  • EU citizens arriving during the implementation period may still be able to bring their dependants, however the more complex and onerous UK immigration rules on family reunion will apply.

Phase 3

  • At the end of the implementation period, the Government intends to introduce new UK rules to control migration from the EU, in the “national interest”. The design of these rules will follow the MAC report in autumn 2018 and engagement with other stakeholders, together with the prevailing economic circumstances at that time.
  • There are a number of options for the post-Brexit immigration scheme, with the Government assessing both sectoral and regional schemes. One scheme involves a “work permit” regime for EU nationals, subject to a form of resident labour market testing, similar to current Tier 2 requirements for non-EU nationals, to ensure employers attempt to recruit locally first.
  • By the end of the implementation period, EU nationals will need to qualify to reside in the UK under UK immigration laws. Whether immigration controls for EU nationals are different to those that apply to non-EEA nationals is likely to depend on the outcome of negotiations with the EU in respect of future trade arrangements and reciprocity.
Conclusion

The future immigration regime for EU citizens will not necessarily be the same as the existing one for non-EU nationals. It is possible that a preferential arrangement may emerge from the negotiated deal with the EU, either on a temporary or permanent basis. If the Government opts for alternative schemes to non-EU migration they will need to ensure that such distinctions can be objectively justified in order to ensure compliance with obligations under equality law.