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Report recommends cut off date for new arrivals from EU

Report recommends cut off date for new arrivals from EU

A hardline report chaired by prominent Leave campaigner Gisela Stewart into the status of EU nationals in the UK has recommended a cut off date for new arrivals from the EU, likely to be April 2017, and a massive registration programme for existing EU residents. EU citizens arriving after the cut off date would be subject to the full force of UK immigration law on Brexit, presumably meaning they would become unlawfully resident on that date. Existing EU residents would also become subject to UK immigration laws and would have to apply for Indefinite Leave to Remain.

UPDATE: the British Future report might usefully be contrasted with a subsequent excellent one of the House of Lords EU Justice Committee, which recommends continuation of EU law for existing EU residents.

The report, which has been co-ordinated by organisation British Future, assumes a total end to EU free movement law in the UK, “hard Brexit”, departure from the European Economic Area and Single Market and expulsion on non qualifying EU residents and family members. Essentially, it proposes a UKIP future for the United Kingdom.

The report recommends that the Home Office simplify the application process for permanent residence. Applications would be compulsory and would involve cross checking against multiple government databases rather than reliance on documents produced by the applicant. The power to make decisions on status would be devolved to local authority staff, who would refer difficult cases to the Home Office. New legislation would be needed to delegate decision making powers in this way, and the Scottish Government would presumably ask why it was not permitted immigration decision making powers.

The report assumes that it is possible to register all EU residents of the United Kingdom. Frankly, it seems unlikely that literally millions of applications could be processed in the time remaining before Brexit occurs. By April 2019 there would need to be tens of thousands of decisions on these applications per day.

Further, the method proposed looks to me fundamentally incompatible with EU law. It involves imposition of a good character test and an application for ILR rather than permanent residence. How this could occur while the UK remains a member of the EU and EU citizens therefore continue to enjoy free movement rights is unclear, but it does not look very well thought through.

Those with permanent residence would have their status converted to “bespoke” Indefinite Leave to Remain (ILR) under the UK immigration rules. What “bespoke” means or how it would differ from “normal” ILR and be distinguished from it when it is called the same thing is not explained.

The report at least proposes a five year “transition” for EU nationals who were qualified persons or had permanent residence at the cut off date. This would allow those people to bring their family members to the UK under the equivalent of EU rules, which are far more family-friendly than the extremely harsh UK immigration rules. Entry of parents and grandparents is basically banned under UK rules but remains feasible under EU rules, and under EU rules there is no real minimum earnings requirement for sponsoring a foreign spouse, unlike the £18,600 requirement under UK rules.

After those five years, though, EU residents would be treated the same as other migrants, with extremely limited family immigration possibilities, no discrimination protection on access to welfare benefits and similar and virtually no protection against deportation if they were to end up in trouble with the police.

The report is not an official or Government report but was co-ordinated by British Future. How likely the recommendations are to find their way into UK Government policy is questionable. This is particularly so as the report in effect abandons tens or hundreds of thousands of existing EU national residents of the United Kingdom who are currently lawfully present in the UK because of EU free movement laws.

This is because the report focuses on “qualified persons”, meaning those who are working, self employed, self sufficient with comprenehsive health insurance or students with comprehensive health insurance. It does not address long term residents from the EU who are not qualified persons (for example the non-working EU national spouse of a British citizen who does not have comprehensive health insurance) nor does it address third country family members from outside the EU but who have or had a relationship with an EU national in the UK.

The report itself states that only 64% of EU nationals resident for over 5 years have qualified for permanent residence. Few will actually have applied for documentary evidence of their status, though. If it is assumed that there are 2.8 million EU nationals in the UK, that means over 1 million have not qualified for permanent residence. Many therefore probably never will. The report proposes that these qualified EU nationals (e.g. workers and the self employed) be allowed to apply for ILR status but that they be screened for good character.

The report seems to assume that non qualified EU nationals will be expelled at the end of a five year transition period, in what would be the biggest mass expulsion of population from this country since 1290, when Edward I infamously ordered the Jews of England into exile.

Given that no-one in their right mind was proposing removing qualified persons, the only group to benefit from the proposals in the report, one wonders what the point of the exercise was. The extremely limited protections proposed are basically the absolute minimum anyone could possibly expect and the report dodges the very hard questions faced by Ministers and civil servants.

One also wonders about the impact of adoption of such hardline proposals on British citizens in the EU. On a reciprocal basis, a British citizen in Spain would become subject to Spanish immigration law and would be completely beyond the protection of the British Government or the EU if Spain were to decide unilaterally to change his or her status in future. If the UK were to subject EU nationals to this regime, we would not only be selling unqualified EU citizens down the river but British citizens in the EU as well.

Colin Yeo
A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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