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An eventful two weeks

17 September 2019 Iain Halliday Blog

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.

There were two major immigration policy announcements whilst I was away: the return of the post study work visa; and changes to the Tier 2 work visa rules which remove the provision which prevented skilled chefs from working in restaurants offering a take away service, branded by the Sun newspaper as introduction of “vindaloo visas”.  My colleague Darren drew attention to this issue back in June in the BBC programme ‘Who Should Get to Stay in the UK?’. These announcements were accompanied by a lengthy Statement of Changes to the immigration rules which made numerous changes to work visas (including the “vindaloo visas” change) and the asylum rules. The re-introduction of the post study work visa was not included within the Statement of Changes; it remains to be seen when this will be implemented.

Then there’s Brexit.

 

Brexit – the distant past of late August

When I left for my holiday, there was still no clarity on immigration status checks for EU citizens after a no-deal Brexit. The Home Secretary, Priti Patel, had told the Telegraph and Independent that free movement of EU citizens would end on 1 November 2019. The fact that the Home Secretary was toying with the idea of ending free movement overnight, without an Act of Parliament (which, as Alexandra Sinclair explained on the Free Movement blog, would most likely have been unlawful) caused much consternation among EU citizens and immigration advisors.

The Prime Minister, Boris Johnson, had also announced that he planned to prorogue (suspend) Parliament until 14 October 2019, restricting the time Parliament would have to scrutinise the Government’s Brexit policy and to pass legislation in preparation for a no-deal Brexit. This prompted court actions to be commenced or accelerated in all three of the UK’s legal jurisdictions. The Court of Session in Scotland had heard the case brought by Joanna Cherry QC and others when I jetted off on holiday, although had not yet issued their decision. 

  

Brexit – the present day of mid-September

Whilst I was away, the Home Office rowed back on the ludicrous plan to end free movement overnight by executive diktat, reverting to the previous plan of implementing a system of European Temporary Leave to Remain (rebranded as Euro TLR) for EU citizens who enter the UK after 31 October 2019. On 5 September 2019 the Government finally got their act together and published a policy paper, generally a more acceptable way of communicating major policy changes than sending out legally incomprehensible snippets of information through the media. Free Movement covered the proposals in detail a few days later here. Whilst this ends an unfortunate period of uncertainty over the Government’s post-Brexit immigration plans, there are still many unanswered questions for some categories of people, such as frontier workers, as explained here.

The Statement of Changes mentioned above also included changes to the EU settled status scheme, which applies to EU citizens resident in the UK before Brexit. As noted by Chris Desira on Free Movement, the rules were replaced in their entirety, making it very difficult to figure out what changes had been made. It’s almost as if they’re trying to hide something…      

The litigation on the legality of the Prime Ministers prorogation also continued at pace. The Outer House of the Court of Session decided the prorogation was lawful on 4 September 2019, only to be overturned by the Inner House of the Court of Session on 11 September 2019 which decided that the prorogation was unlawful (despite being on holiday I couldn’t resist reading these decisions – cases such as this do not come along every day!). The High Court in England & Wales and the High Court in Northern Ireland subsequently issued judgements following the cases lodged in those jurisdictions deciding the prorogation was lawful. The Supreme Court will hear all three cases in a conjoined hearing this week.

Whilst the prorogation of Parliament (and whether this was lawful of unlawful) does not have a direct impact on immigration law, I am frequently asked by clients how likely a no deal Brexit is, what rights they will have in the event of a no deal Brexit, what protections will be put in place through legislation to prevent EU citizens resident in the UK becoming unlawful migrants overnight. My advice on such issues is informed by the prevailing political circumstances.

Until recently I was advising clients that a no deal Brexit was quite likely (given Boris Johnson’s obsession with leaving on 31 October 2019). However the rights of EU citizens in the UK will be protected by section 2 of the European Union (Withdrawal) Act 2018 until free movement law was repealed by the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which was making its way through Parliament. Although there were numerous problems with the Bill as enacted, I was relatively confident, given the numerous amendments tabled, that Parliament would ensure protections were put in place before EU free movement law was repealed.  

Now I would advise that a no deal Brexit has become less likely as the Prime Minister is legally required to seek an extension from the EU to avoid no deal (I am assuming, perhaps naively, that Boris Johnson will comply with the law or resign so that someone else can). However, if a no deal Brexit does occur, it is very unclear what the post-Brexit position of EU nationals will be given the speed with which things can change, the confusion caused by the Government’s recent announcements, and the fact that, if Parliament is prorogued, no legislation can be passed in preparation for Brexit (the Immigration and Social Security Bill was not carried forward to the new parliamentary sessions so, if the prorogation is upheld as valid and lawful, it will not be enacted).

Next week, my advice may be different. The constantly evolving political crisis over Brexit can therefore have a significant impact on the day to day advice I provide to clients.

 

So things change, what’s your point?

All of this happened during the first two weeks of September. People often complain that UK immigration law changes too often, making it difficult to keep up. I spend my days reading (and writing for) the Free Movement blog, reading immigration and Brexit related news articles in the media, reading Government announcements on the gov.uk website, and reviewing new case law, policies, and legislation. It is the only way to ensure I have the most up to date information and I am correctly advising my clients.

However not everyone can do this. The average migrant has other things to do - a job unrelated to immigration law, a family, hobbies, and interests which go beyond UK politics. How are they supposed to keep up with the constant changes?

The answer is they don’t. They are like me on holiday: busy enjoying themselves and getting on with other things, blissfully unaware of the numerous policy announcements and changes emanating from the Home Office and wider UK Government. This, in a nutshell, is the problem with our current immigration system. If people do not know what the rules are, how can they ensure they comply with them? They can’t. Instead they invariably inadvertently fall foul of the rules and are forced in to the various vagaries of the hostile environment. All because they had the temerity to  spend their time doing something other than keeping up to date with the ever changing world of UK immigration law.

This complexity benefits immigration lawyers of course, as it means people need to pay a lawyer to explain the rules to them. However as immigration barrister Colin Yeo pointed out back in May 2016 many immigration lawyers yearn for their own redundancy: continually advocating for a simple and fair system which would render us unnecessary. Unfortunately, if the last two weeks are anything to go by, this utopian future of a simple, stable and understandable immigration system seems further away than ever.

 

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