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No deal planning: Home Office forgets about Scotland
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No deal planning: Home Office forgets about Scotland

Depending on which pundit you speak to, a no-deal Brexit has either got more likely or less likely over the last couple of weeks. It remains the default if the UK-EU withdrawal agreement is not passed at the third time of asking, and a further extension is not agreed by 12 April 2019.

The recent extension does not solve the problem; it merely delays it. Despite two separate votes in Parliament decrying a no-deal Brexit, legally speaking no deal remains very much on the table. Those votes were not binding.

So a no-deal Brexit could still occur. If this happens, European nationals entering the UK after Brexit will not have an automatic right to live here. There will be an automatic right of entry for up to three months, but if these new arrivals wish to stay for longer than three months they will need to apply for European Temporary Leave to Remain.

European Temporary Leave to Remain is a long-winded way of saying “visa”. It is a special type of visa designed specifically for Brexit. The government has proposed it to bridge the gap between the UK’s departure from the EU (whenever that may be) and the UK’s new immigration system in 2021 (as envisaged in the recent white paper).

The visa will be valid for three years. It cannot be extended. After three years, holders would have to apply for a new visa under the post-2021 immigration system — the specific requirements of which are not yet known.

This creates a problem for EU students hoping to study in Scotland after Brexit. A Scottish Bachelor’s degree with Honours usually lasts four years, unlike in England where a degree generally last three years. A three-year non-extendable visa is not particularly useful for a four-year degree course.

Horses for courses

Lawyers love pointing out technicalities that no one else has noticed. Scottish lawyers get to indulge in this guilty pleasure more than most — we are generally the small voice at the back of the room saying “actually the law is different in Scotland”. In this case, however, it’s not just lawyers kicking up a fuss. Scottish politicians have highlighted the damaging effect that granting a visa for only three years would have on Scottish universities.

On 28 February MP Jo Swinson wrote to the Home Secretary to highlight that the proposed visa scheme asks students “to commit to a four year course with the promise of only a three year visa”. She also points out that degrees across the UK in certain areas — such as medicine, languages, and architecture — last longer than three years.

The Russell Group, which represents two dozen of the UK’s most prestigious universities, has also criticised the “bizarre” proposal, suggesting it is “most likely unintended consequences of an ill-considered government policy”. It has called for the Home Office to guarantee that students starting courses in the 2019/20 and 2020/21 academic years will be able to stay in the UK to complete their degrees. I understand that the response has not been reassuring.

To ensure they will be able to remain in the UK for the duration of their degree, those studying for longer degrees could apply for a Tier 4 (General) student visa. But the Tier 4 process can be bureaucratic and cumbersome, particularly when compared with how easy it is for EU students to come and study in the UK now (see this comparison of the procedures for more detail). Many will find it easier to simply study elsewhere. This is a headache for English universities, but will have a devastating impact on Scottish ones.

Actually, Minister

This is a classic example of the UK government implementing a UK-wide scheme without realising it won’t quite work in Scotland. It reminds me of the episode of the TV comedy Yes Minister in which the otherwise unflappable civil service chief Sir Humphrey Appleby is caught out by the differences between Scottish and English leases. Sir Humphrey is revealed to be responsible for wasting £40 million of taxpayers’ money, having drafted a Ministry of Defence lease for a Scottish island in ignorance of the relevant Scottish law. This leads to forfeiture of the land when the lease comes to an end.

Hopefully the Home Secretary will take heed of the warning that his planned visa scheme will not work in Scotland and, unlike Sir Humphrey, fix the problem before it is too late.

Iain Halliday

Iain Halliday is a solicitor at McGill & Co, a Scottish law firm specialising in immigration and nationality law. He regularly assist clients with applications, appeals and judicial reviews in relation to EEA free movement rights, the right to private and family life and the best interests of the child, the Points Based System applicable to entrepreneurs and international workers, and naturalisation and registration as a British citizen. Iain is a member of the Immigration Law Practitioners’ Association and a member of the Law Society of Scotland's Immigration and Asylum Committee and has been involved in drafting submissions to Parliamentary Committees at both Westminster and Holyrood.

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