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Draft Brexit deal finally published but may be dead on arrival

Draft Brexit deal finally published but may be dead on arrival

We do legal rather than political punditry on this blog, but the resignation this morning of two Cabinet ministers bodes ill for the chances of the draft Brexit deal being approved by parliament. Even before that, the negative reaction of Conservative MPs to the terms published last night led commentators to doubt whether the withdrawal agreement hashed out between the negotiating teams would pass muster. To take two examples from opposite sides of the political spectrum, James Forsyth wrote in the Spectator about “how hard it will be to get the withdrawal agreement through parliament”, while Stephen Bush for the New Statesman said that “barring a sudden and drastic shift in the balance of political forces, May’s deal is not going to pass”.

With the rather glaring caveat that it may be dead on arrival, what does the withdrawal agreement say about immigration?

On the rights of EU citizens’ already living in the UK, the text was all signed off back in March. Chris Desira’s analysis of those provisions at the time is still the best legal guide. We have also published a detailed legal commentary on how the UK government is implementing the citizens’ rights agreement, courtesy of the Immigration Law Practitioners’ Association. Non-lawyers may prefer Nath’s “how to apply” guide to the settlement scheme (which will be further updated in the coming days).

There has been some panic overnight about the text including reference to Comprehensive Sickness Insurance. Essentially EU citizens in the UK without private health insurance may not be protected by the strict terms of the deal. But this has been the case since March and the UK government has waived this requirement of its own accord. This is reflected in the design of the application scheme, which does not require people to have CSI.

What is new is an unfinished “political declaration” about what the future relationship between the UK and EU will look like, after the divorce. This includes some reference to future rules on migration, which would be agreed over the next couple of years and kick in after the end of a transition period on 31 December 2020. Free movement would continue until then.

The political declaration simply says that there should be:

  • Arrangements on temporary entry and stay of natural persons for business purposes in defined areas.
  • Other aspects of mobility, based on non-discrimination between the Union’s Member States and reciprocity, including visa-free travel for short-term visits.

We are still waiting for a government White Paper on its future immigration policy to give a sense of what it would like the rules to be, which might then become more generous in return for trade concessions from the EU. When it might emerge given the ongoing political storm is anyone’s guess.


CJ McKinney

CJ is Free Movement's deputy editor. He's here to make sure that the website is on top of everything that happens in the world of immigration law, whether by writing articles, commissioning them out or considering submissions. When not writing about immigration law, CJ covers wider legal affairs at the website Legal Cheek and on Twitter: follow him @mckinneytweets.

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