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Briefing: the status of EU immigration and asylum law after Brexit
Credit: Markus Spiske on Unsplash

Briefing: the status of EU immigration and asylum law after Brexit

Following the Conservative Party’s victory in the December 2019 general election, and the passing of the Withdrawal Agreement Act on 23 January 2020, the UK has now left the European Union with a divorce deal. 

Under the deal, formally called the Withdrawal Agreement, there is a transitional period running from Brexit day (31 January 2020) until 31 December 2020. During this time nothing much will change and EU law will continue to apply in the UK. But what will happen to EU immigration and asylum law on 1 January 2021?

EU free movement law after Brexit

The date the UK leaves the EU is referred to in Brexit legislation as “exit day”. This is 31 January 2020.

Despite the political significance of this date, legally speaking nothing has changed. The European Communities Act 1972, which implements EU law in the UK, was repealed on exit day. However the European Union (Withdrawal Agreement) Act 2020 says that the 1972 Act continues to have effect in the UK during the transitional period, despite being repealed.

(Delaying repeal of the 1972 Act until 31 December 2020 would have been a far simpler solution, but then the government wouldn’t be able to make a song and dance about getting rid of it on Brexit day.)

The important date, for the purposes of the continuing effect of EU law, is the end of the transitional period. This is referred to in the legislation as “IP completion day” (IP meaning implementation period). This is 31 December 2020.

Various things happen automatically on IP completion day. 

Firstly, under section 2 of the European Union (Withdrawal) Act 2018 (as amended by the 2020 Act), all UK legislation derived from EU law continues to have effect. Directly effective EU rights also become part of UK law automatically at the end of the transition period (under section 4 of the 2018 Act, as amended). Where the EU legislation concerned is a directive, only rights which have been recognised by the courts prior to exit day become part of UK law. But the supremacy of EU law continues in relation to laws passed before the end of the transition period.

This is the default, to ensure continuity in areas where Parliament has not yet got around to changing or repealing EU-derived UK legislation and directly effective EU law. 

Between now and 31 December 2020, Parliament will be passing legislation to change this inherited EU law in preparation for the end of the transition period. It will be on the statute book, ready and waiting to come into force on 1 January 2021.

Such legislation will displace the default setting of everything remaining the same. EU laws that are not amended will automatically continue in force, however.

Parliament can, at any point in the future, change this retained EU law, without any limits being imposed by EU membership. So we will have to keep track of any amendments made.

An example is the EEA Regulations 2016, which implement the detail of EU free movement law in the UK. Legislation passed in March 2019 under the Theresa May government puts in amendments to those regulations that will apply from the end of transition. The changes are summarised in this post: Sweeping new immigration regulations herald the end of free movement. One of the main ones is to abolish the rules on deporting EU citizens and replace them with a system more favourable to the Home Office: see How new immigration regulations will make it easier to deport EU citizens after Brexit.

In reality, it is very likely that the EEA Regulations will be repealed in their entirety on 1 January 2021 by the forthcoming Immigration and Social Security Co-Ordination (EU Withdrawal) Bill 2020 (announced in the Queen’s Speech). Otherwise free movement would continue — albeit in a modified form — after the end of the transitional period, which is something the government has repeatedly stated that it is not in favour of. 

Can there still be a no deal?

Talks are taking place on the future relationship between the UK and the EU after 31 December 2020. The prospect of there being no future relationship agreement is often referred to as a “no deal” Brexit.

This is liable to cause confusion. Failing to conclude a future relationship agreement by 31 December 2020 will not be the same as leaving the EU without the Withdrawal Agreement would have been, particularly when it comes to the rights of EU citizens in the UK. 

The failure to conclude a future relationship agreement cannot affect the EU Settlement Scheme, the deadline for applying for settled status (30 June 2021) or the rights of non-EEA family members under the scheme. All of this is set out in the citizens’ rights section of the Withdrawal Agreement and will remain in place regardless of whether or not a future relationship agreement is concluded. 

EU asylum law after Brexit

Due to the Common European Asylum System, Brexit will also affect those claiming asylum in the UK.

Asylum law is based on a variety of international, European Union and domestic legislation.  The international law — the Refugee Convention and the European Convention on Human Rights (ECHR) — will not be affected by Brexit. Despite the name, the ECHR is not an EU treaty. Domestic legal provisions — such as the asylum section of the Immigration Rules — will also remain substantially unchanged. 

The EU law — namely the Qualification Directive and Procedures Directive — and EU-derived domestic law such as the Refugee of Persons in Need of International Protection (Qualification) Regulation 2006 which implement the Qualification Directive in the UK will become retained EU law on IP completion day.

The Qualification Directive and the UK regulations implementing them outline the criteria for determining asylum clams. However, as they are based on international treaties such as the Refugee Convention and ECHR which will remain unchanged by Brexit, the underlying law is unlikely to change substantially even if they are repealed after Brexit.  

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Some asylum legislation has already been earmarked for immediate repeal on IP completion day by those March 2019 regulations mentioned earlier. Anything which is not included in these regulations will become retained EU law and remain in place, until amended or repealed after the end of the transition period. 

An important example of legislation which will be repealed on IP completion day is the Dublin III Regulation. This is the piece of EU law which allows the UK to return asylum seekers to an EU country they passed through on their way to the UK. It is marked down for immediate repeal because it is meaningless without cooperation of other EU member states. Under transitional provisions, some parts of the Regulation will continue to apply to requests for family reunion which have been made, but not decided, before the end of transition. However, for most purposes, the Regulation will no longer be part of UK law.   

For a full list of the asylum-related EU legislation which will be revoked on IP completion day see here. Again, there may be more such changes in future, but anything not explicitly repealed is kept in force.

EU case law after Brexit

Case law, for those who are not lawyers, refers to the decisions of courts and tribunals interpreting and applying legislation and common law rules. It often clarifies the meaning or effect of legal provisions and is frequently used by lawyers to support a particular interpretation or application of the law. Such cases set precedents that become part of the law, meaning that the same issue does not need to be litigated over and over again.

The Court of Justice of the European Union interprets and applies EU law. Its judgments are binding on UK courts (and, despite its habitual reluctance, the UK government).

This will end on 31 December 2020. UK courts will not be bound by future Court of Justice decisions after IP completion day and will not generally be able to refer questions of EU law to that court.

UK courts “may have regard” to Court of Justice case law handed down after the end of transition if they want. The same goes for post-transition EU legislation. But they do not have to. It is essentially up to UK judges to decide if, and to what extent, certain provisions of EU law are to apply in the UK after Brexit.

So to know which new EU cases are relevant to UK immigration law, we will have to keep an eye on the UK case law. The EU cases will not be automatically relevant, as they are now. 

If a helpful Court of Justice case is handed down, lawyers can highlight this and seek to persuade the UK court or tribunal to follow it; in the same way that a Scottish lawyer might highlight a non-binding decision of an English court with a view to having it followed in the Scottish courts (or vice versa).  

What about Court of Justice case law from before the end of transition? This will apply when interpreting retained EU law, unless the government decides that it should not. The 2020 Act contains controversial provisions allowing the government to pass regulations dictating to courts how and when to apply retained EU case law. It remains to be seen how frequently this “broad and constitutionally significant” power will be exercised, and what areas of the law the government will target. 

Even in the absence of such regulations, the Supreme Court can depart from pre-Brexit case law if it wishes. This can be done in the same way that the Supreme Court can depart from its own case law i.e. when in the circumstances of the case “it would be right for it to do so”. For instance, when adhering to a previous decision “would produce serious anomalies” or other “plainly unsatisfactory” results; when there has been “a fundamental change in circumstances”; or when there is experience showing that the previous decision has resulted in “unforeseen serious injustice” (see Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28 at paragraphs 24 to 26 for further details). The test for departing from Court of Justice case law after Brexit will be the same. 

Case study

Henrika is a self-employed Lithuanian citizen who has lived in the UK since June 2019. As she entered the UK before the end of the transition period, she benefits from the Withdrawal Agreement and can apply to the settled status scheme. In February 2020, Henrika stops working for three months in order to give birth to her child. 

She claims child benefit from the UK government. She is told that, as she was not working for three months, she had no right to reside in the UK and is not entitled to child benefit for that period. She has not yet applied for pre-settled status as she has until 30 June 2021 to do this. She appeals the decision to refuse her child benefit to the First-tier Tribunal and the hearing takes place in January 2021.

The legal basis for Henrika’s residence in the UK prior to 31 December 2020 was the EEA Regulations 2016 and the Free Movement Directive, both of which became retained EU law on exit day. The First-tier Tribunal will most likely apply the pre-Brexit Court of Justice case of HMRC v Dakneviciute (which due to my staggering lack of imagination has remarkably similar facts). This case decided that a woman retains the status of being a self-employed person during her maternity leave, providing she returns to work within a reasonable period after the birth.

Applying this case the tribunal should decide that Henrika was entitled to child benefit during the three months of her maternity leave in early 2020. The Supreme Court may decide to depart from this Court of Justice decision, however. And lower courts and tribunals could also be required to depart from this decision if the government passes regulations requiring them to do so.

If Dakneviciute had instead been decided after 31 December 2020, the tribunal would not have to abide by the judgment and could decide in the UK government’s favour.

This article was originally published in September 2019 and has been updated so that it is correct as of the revised publication date shown.

Iain Halliday

Iain Halliday is a solicitor at McGill & Co, a Scottish law firm specialising in immigration and nationality law. Iain is also Vice Convenor 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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