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 to Parliament and the general public that he will not comply with this Act (although he has assured the Court of Session that these statements do not reflect the Government’s understanding of their legal obligations and that he will, in fact, comply with the Act). It is impossible to predict what may happen over the courser of the next few weeks. 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?
For the most part, EU law continues after Brexit thanks to the European Union (Withdrawal) Act 2018. This Act creates a body of “retained EU law” which can then be changed by Parliament as and when they wish after Brexit. The Act prevents the immediate repeal of huge swathes of EU law on Brexit day, which would have left gaping chasms in the UK’s legal system.
EU free movement law will continue after Brexit as the Immigration (EEA) Regulations 2016, and directly effective rights under the Free Movement Directive, will become “retained EU law”. In due course, the 2016 regulations will be repealed. This will most likely be done by the Immigration and Social Security Co-Ordination (EU Withdrawal) Bill which has been revived following the Supreme Court’s decision to quash the prorogation of Parliament. The Bill currently contains no safeguards or transitional provisions which would avoid a sudden loss of rights on the day the 2016 Regulations are repealed. It is currently unclear what protection will be put in place for EU nationals (and EEA and Swiss nationals) who have not yet applied for settled status (they have until 31 December 2020 to do so meaning there will be a gap between repeal of free movement law and full subscription to the settled status scheme. The Euro TLR scheme does not plug this gap as it is only for people entering after Brexit). Numerous amendments have been tabled to the Bill attempting to correct this (and other) deficiencies. However it remains to be seen which of them make it in to the Bill (if the Government ever brings it back to Parliament).
Some form of protection, through transitional provisions, will be put in place. It would be nice if the Government told us what legal form that protection will take rather than causing mass panic by making legally inept announcements about ending free movement overnight to the press. However it seems with the current Government that is too much to ask.
The Government have already made provision for some changes to be made to the 2016 Regulations immediately after Brexit, however these only relate to EEA nationals who commits a criminal offence after Brexit day. Also some EU asylum law, such as the Dublin Regulation which allows the UK to send asylum seekers back to the first EU country they entered, will become defunct immediately after Brexit. Other than this, very little changes overnight after Brexit. For a more detailed look at what will change immediately, and what will not, when we leave the EU see my post on the Free Movement blog here.
I’ve been on holiday for the past two weeks. Unlike my colleague John I thankfully managed to hold on to my passport - although I did follow his advice of travelling with a photocopy just in case. Whilst I’ve been away I have had only occasional access to the internet and have not been paying much attention to what has been happening in the UK. So what did I miss? Not much surely; it’s only been two weeks. Wrong.
In this webinar, we cover specifically the financial requirement which is the most predominant of all five requirements. Introduced in 2012, it requires the UK sponsor to be earning at least £18,600 to sponsor their partner with a further £3,800 for the first non-British child and £2,400 for each additional non-British children. We touch upon the variety of different income streams that are allowed and cover the evidence requirement for the most common income streams: employment income and savings. We also outline the possibility of sponsoring your partner if you are on certain benefits.
With the introduction of eGates across UK airports from 20 May 2019 onwards, what effect might this have on visitors to the UK overstaying their visa? I take a closer look at the policy and possible reprecussions in my recent article on FreeMovement.
We are commencing a series of webinars addressing the common issues arising in applications for family migration to the UK.
We will be providing guidance on the legalities and processes involved in bringing a loved one to the UK.
Our first video serves as an introduction to the topic.
The documents can be kept either as paper copies or in an electronic format. There is no prescribed method for storing the documents, but you must be able to make them available to the Home Office on request.
Earlier this week a cross-party group of MPs published a highly critical report on the Home Office’s treatment of visit visa applicants from Africa. The report was issued jointly by three All Party Parliamentary Groups: the APPG for Africa; the APPG for Diaspora, Development and Migration; and the APPG for Malawi. It forms part of an ongoing inquiry into the high level of visa refusals for Africans seeking to visit the UK for professional or business reasons. I gave evidence to their inquiry back in January 2019 and was asked to review and comment on a draft of the report prior to publication.
If you are an EU citizen or the family member of one, who wishes to remain in the UK after Brexit, you must make an application through what is known as the EU Settlement Scheme. Doing so will grant you either 'settled status' or 'pre-settled status', depending on how long you have resided in the UK. In this blog, the settlement scheme process will be broken down into three stages.
Last week I covered the important case of Rehman (EEA Regulations 2016 – specified evidence)  UKUT 195 (IAC) for the Free Movement blog. The case concerned the Home Office’s attempt, through the Immigration (EEA) Regulations 2016, to implement a mandatory application process, with mandatory documents, for EEA applications. The Tribunal held that, although EU law allows administrative procedures to be put in place to ensure consistency, they cannot go beyond what is strictly necessary to establish the relevant right of residence under EU law.
In our latest contribution to the Free Movement blog Iain Halliday considers the case of Bhavsar (late application for PTA: procedure)  UKUT 196 (IAC), a case which concerned the procedure in the First-tier Tribunal when an application for permission to appeal is received after the 14 day deadline. The Upper Tribunal held that the correct approach in such cases is for the First-tier Tribunal to refuse to admit the application rather than considering and refusing permission to appeal. The applicant will then have another opportunity to explain the reason for the delay in their application to the Upper Tribunal.
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