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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

As the Brexit crisis trundles on, and we edge closer to the deadline of 31 October 2019, many are trying to pin down what happens to EU immigration and asylum law after the UK leaves the EU (or, to use the Prime Minister’s words, after we puncture “the great poisonous puffball of Brexit”).

The government’s stated aim is to leave the EU, with or without a deal, on 31 October 2019. If there is a deal, there will be a transitional period. During this time nothing will change and EU law will continue. Under the deal negotiated by Theresa May, that period would last until 31 December 2020. The period under any deal negotiated by Boris Johnson is likely to be the same or similar.

The more pertinent question, given that very little progress has been made towards concluding a deal, is what happens if there is a no-deal Brexit?

The UK will leave the EU by automatic operation of law on 31 October 2019. The Benn Act requires the Prime Minister (whoever that may be at the time) to seek an extension from the EU to 31 January 2020 if a deal has not been approved by Parliament before 19 October 2019.

Boris Johnson has suggested he will not comply with this Act. In any case, complying with the Act would not prevent no deal; merely delay it until January.

So what exactly is the status of EU immigration and asylum law in the UK after no deal?

EU free movement law after Brexit

The date the UK leaves the EU is referred to in Brexit legislation as “exit day”. Various things happen automatically on exit day.

Firstly, under section 2 of the European Union (Withdrawal) Act 2018, all UK legislation derived from EU law continues to have effect. This includes, for example, the Immigration (EEA) Regulations 2016 — the legislation that implements EU free movement law in the UK.

Directly effective EU rights, including those in the Free Movement Directive, also become part of UK law automatically on exit day (under section 4 of the Act). Where the EU legislation concerned is a directive, as is the case with much of the detail of free movement law, only rights which have been recognised by the Court of Justice of the EU prior to exit day become part of UK law. The supremacy of EU law continues in relation to pre-Brexit law so, as is the case now, where the 2016 Regulations and rights recognised under the Free Movement Directive are in conflict, the directive prevails (needless to say, the supremacy of EU law does not apply to post-Brexit UK law). As such, very little changes overnight on exit day.

That being said, from exit day onwards all this “retained EU law” can be changed in future by the UK Parliament, without any limits being imposed by EU law. So we will have to keep track of any amendments made.

What we already know is that on exit day the 2016 Regulations will be amended by legislation passed back in March 2019 by Theresa May’s government. 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.

Other changes were going to be made by the Immigration and Social Security Co-Ordination (EU Withdrawal) Bill. This bill was revived recently following the Supreme Court’s decision to quash the prorogation of Parliament.  However it has fallen away again following the prorogation of Parliament on 8 October 2019.  Schedule 1 contains a list of EU immigration laws, including the 2016 Regulations, that would have been repealed once that bill had been passed and come into force. The Government is likely to introduce new legislation in due course to bring free movement law to an end. 

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 exit day in the same way as the 2016 Regulations.

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 exit 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 Brexit. 

An important example of legislation which will be repealed on exit 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 Brexit. 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 exit 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 after Brexit. UK courts will not be bound by future Court of Justice decisions after exit day and will not 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 Brexit (and post-Brexit EU legislation, in fact) if they want. 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. They 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 Brexit? This will apply when interpreting retained EU law, and all lower courts are required to follow it.

However, the Supreme Court can depart from this 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. In December 2019, the UK having left the EU with no deal on 31 October 2019, 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 31 December 2020 to do this. She appeals the decision to refuse her child benefit to the First-tier Tribunal.

The legal basis for Henrika’s residence in the UK will be the Immigration (EEA) Regulations 2016 and the Free Movement Directive, both of which would have become retained EU law on exit day. The First-tier Tribunal must 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. The Supreme Court may decide to depart from this Court of Justice decision, however, lower courts are required to follow it.

If Dakneviciute had instead been a post-Brexit Court of Justice case, the tribunal would not have to abide by the judgment and could decide in the UK government’s favour.

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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