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The legal status of new arrivals from the EU after a no-deal Brexit
Credit: Dannyman via Wikimedia

The legal status of new arrivals from the EU after a no-deal Brexit

The government’s preparations for Brexit include passing a law to remove the right of free movement for EU citizens. This right is ultimately derived from the EU treaties, but is also expressed in UK legislation, notably section 7 of the Immigration Act 1988, and in the Immigration (European Economic Area) Regulations 2016 (SI 2016 No. 1052).

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which will have its second reading in the House of Commons on Wednesday 16 January, will revoke these and other “EU-derived domestic legislation” providing for free movement. That will allow the government to bring in new rules on migration from the EU in future.

The government’s white paper on immigration says that these new rules will only kick in from the start of 2021. Under the draft Brexit withdrawal agreement, free movement will continue between the planned date of Brexit on 29 March 2019 and the end of the planned transition period on 31 December 2020.

Unless you have been living under a rock, you may have noticed that the draft withdrawal agreement (“Theresa May’s Brexit deal“) is in a spot of bother. There may be no withdrawal agreement at all. In this “no deal” scenario, there would be no transition period in which EU law free movement rights continue.

For EU citizens already living here by 29 March 2019, that should not be a major problem. The government has said that it will still operate the EU Settlement Scheme, which allows existing residents to apply to stay in the UK after Brexit, whether or not there is a deal (albeit in slightly watered down form). But there is no way on earth that over three million currently resident EU citizens can be processed by 29 March 2019. What law would underpin the residence rights of EU residents in the meantime?

And what about EU nationals who propose to move here after 29 March 2019, if there is no Brexit deal? There is as yet no indication that the government proposes slam down the shutters on that date — apart from anything else, the new immigration system would simply not be ready in time. What legal basis would new arrivals have for living in the UK?

The answer for both those current EU residents who have not been granted leave and new entrants after 29 March seems to be that the EEA Regulations 2016 will remain in force in the short term. Section 2 of the European Union (Withdrawal) Act 2018 says that

EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day.

That would mean that entrants from the EU after Brexit will have the same (or at least very similar) rights as entrants before Brexit. But these rights will be derived solely from domestic law, without the possibility of recourse to EU institutions if there is a problem or if domestic law does not accurately reflect EU law.

Employers and landlords, who as part of the hostile compliant environment policy have to check the immigration status of employees and tenants, would still therefore check whether a person has an EU passport or ID card. If they do, then the EEA Regulations would mean that they still have a right of residence in the UK. Admitting (or rather not admitting) that current EU law would effectively continue even in the event of there being no deal with the EU was what tied immigration minister Caroline Nokes in knots before the Home Affairs Select Committee back in October 2018.

It is worth observing that although the UK would unilaterally continue EU-type free movement rules in domestic law for EU citizens after a no deal Brexit because the government is simply not equipped or prepared do do otherwise, the same is not true in reverse. Unless each EU country legislates otherwise, British citizens travelling to EU countries would immediately be treated as third country nationals, meaning we would lose our free movement rights immediately.

Of course, none of this would work if the new Immigration Bill mentioned at the outset has repealed the EEA Regulations. Schedule 1, part 1, section 2(2) specifically says that “the Immigration (European Economic Area) Regulations 2016… are revoked”. If the Immigration Bill becomes law before Brexit day, the commencement of this provision would have to be delayed. Otherwise there would be no obvious legal basis for EU citizens already resident but not yet granted leave to remain lawfully, or for new EU citizens to enter after 29 March, meaning chaos at the borders.

At some point, the EEA Regulations would have to be scrapped in order to phase in the new immigration system. Since it is also these regulations which preserve the status of existing EU residents, the government would want to be sure that most of these have been processed by the EU Settlement Scheme — which grants either indefinite or limited leave to remain under UK law — before switching off those regulations. The end of 2020, or perhaps the Settlement Scheme application deadline of 30 June 2021, seems like a reasonable guess for when this might happen.

New EU entrants after whatever date is chosen would be subject to the same system as everyone else, meaning that they will need leave to enter. That is unless the next set of negotiations with the EU, this time on the future EU-UK relationship, gives EU migrants special treatment. While you will never hear the current government describe this as the return of free movement, it has left the window open for “mobility concessions” in return for better access to EU markets in future. But the starting point is that EU and non-EU migrants would be treated in the same way.

What all this leaves unresolved is the long-term status of EU citizens who arrive between the date of a no-deal Brexit and the implementation of the new system. The government has specifically said that, if there is no deal, the EU Settlement Scheme will only be open to those living in the UK before 29 March 2019. In other words, those arriving after that date would have no way of guaranteeing their legal right to stay once the EEA Regulations are abolished. Presumably they would have to apply for limited leave, either from within the UK or from abroad, through a mechanism yet to be determined. Or simply leave.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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