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McGill & Co is a Scottish immigration law firm specialising in UK immigration, nationality and refugee law.

What’s going on with Brexit?

31 January 2019 Iain Halliday Brexit & EU Migration

There’s been a lot of Brexit news this week: on Monday Parliament debated the Immigration and Social Security Co-Ordination (EU Withdrawal) Bill which will bring an end to EU free movement law in the UK;

on the same day, the Government announced how they intend to deal with EU migrants coming to the UK after 29 March 2019 in the event of a no deal Brexit; on Tuesday Parliament debated and voted on a variety of proposals put forward by MPs culminating in Theresa May confirming that she would return to Brussels to renegotiate the draft Withdrawal Agreement concluded between the UK and the EU in November 2018; on Wednesday the EU rejected this request; and today a report from the Institute for Government raised grave concerns about the UK Government’s lack of preparation for a no deal Brexit.

Meanwhile the EU Settlement Scheme, which opened to the public at the start of last week, seems to be trundling on with limited fanfare. All the while the timer counts down to our impending departure from the EU through automatic operation of law on 29 March 2019. Unless a Withdrawal Agreement is concluded, or Article 50 is revoked or extended, before that date this will be a ‘no deal Brexit’ i.e. there will no Withdrawal Agreement and no transitional period.

So, how will all of this affect UK immigration law? The position between March 2019 and December 2020 depends on whether or not there is a Withdrawal Agreement. Thereafter, from 2021, the whole immigration system will be reformed so that there is one system for all foreign nationals coming to the UK (except Irish nationals).

What if there is no deal?

If no Withdrawal Agreement is concluded then there will be two distinct schemes for EEA and Swiss nationals in UK immigration law:

1. the EU Settlement Scheme (aka settled status scheme) for EEA and Swiss nationals and their family members who started living in the UK before 29 March 2019 (at the moment only EU nationals can apply, however after 29 March 2019 EEA and Swiss nationals will also be able to apply). The deadline for applications will be 31 December 2020;
2. European Temporary Leave to Remain for EEA and Swiss nationals and their family members who started living in the UK between 29 March 2019 and 31 December 2020.

Why is this necessary? Because the Government (and in particular Theresa May) want to end EU free movement after Brexit. But they can’t require millions of people who have made the UK their home to leave (hence the EU Settlement Scheme); and there simply isn’t time to implement a whole new immigration system which applies to everyone who isn’t either British or Irish by 29 March 2019 (hence European Temporary Leave to Remain). So, free movement isn’t really ending. It is just undergoing some Brexit related re-branding. Deal or no deal, EEA and Swiss nationals will continue to be able to come to the UK with only very limited restrictions until 31 December 2020.

However the changes aren’t entirely cosmetic. At present EEA nationals and their family members who are refused a residence card have a right of appeal to an independent tribunal. No such right will exist for those refused settled status or European Temporary Leave. Also rights are currently automatically acquired; there is no need to make any application to the Home Office. This will not be the case post-Brexit. This requirement to make an application and be granted status, and the possibility that many may miss the deadline and become unlawful migrants, is what has led some to claim that the scheme will cause the next Windrush scandal.

This is a real concern. Most will make applications and be granted status; however some may not. The Immigration and Social Security Co-Ordination (EU Withdrawal) Bill contains no safeguards or transitional provisions which would avoid a sudden loss of rights on the day EU free movement law is repealed. The Government have indicated that, if there is no deal, they plan to “end free movement as soon as possible” through clause 1 of this Bill. It is currently unclear what protection will be put in place for 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 European Temporary Leave scheme does not plug this gap as it is only for post-March 2019 entrants).

The Bill, as introduced to Parliament, is a worrisome piece of legislation. It gives the Government broad powers to alter immigration legislation with only very limited oversight from Parliament (through what is called a Henry VIII clause - named after the 16th century King’s fondness for executive diktat). It does, however, have the potential, with significant amendments, to make positive change. Many, including the Public Law Project and the Law Society of Scotland’s Immigration & Asylum Committee, have lobbied for a right of appeal against refusal of settled status to be included in the Bill to ensure that, even if there is no deal, there is a right of appeal. There are also reports that MP’s propose to table an amendment to bring an end to indefinite immigration detention. The Bill also provides much needed protection to Irish citizens in the UK, fixing the defects in the current Common Travel Area provisions. All of this requires primary legislation.

There was widespread criticism of the Labour Party’s decision to abstain during the Second Reading of the Bill, which resulted in a last minute change of policy to oppose it (although not in time to prevent it from being passed). However if the Bill had been defeated at Second Reading there would have been no opportunity to legislate to include a right of appeal, end indefinite immigration detention, or protect Irish citizens in the UK. It is much easier to amend Government legislation (particularly when the Party in Government does not have a majority in the House of Commons) than to get a separate private members Bill through the Commons. The Bill must progress through Committee Stage, Report Stage, and a Third Reading in the both the House of Commons and the House of Lords before it becomes law. If the Bill manages to make it through the Committee and Report stages without significant amendment then it can be opposed at Third Reading. Stopping it ever getting off the ground by opposing it at Second Reading would have achieved very little.

What if there is a deal?

If a Withdrawal Agreement is concluded between the UK and the EU then there will be a transitional period lasting until 31 December 2020, during which time EU free movement law will continue to apply as it does now.

The European Temporary Leave scheme will be unnecessary as EEA and Swiss nationals will continue to have an automatic right to come to the UK until the end of 2020. The EU Settlement Scheme will, however, still be necessary as all EEA and Swiss nationals will need to have been granted under the scheme before the end of the transitional period. However, unlike in a no deal scenario, the scheme will be open to everyone entering the UK before 31 December 2020 and there will be a right of appeal against refusal. There will also be oversight, until the end of 2028, from a newly created independent authority and the Court of Justice of the EU.

What if I’m not European – does any of this affect me?

In the short term, no. However the reason the schemes outlined above all run until 31 December 2020 is because, from 2021, the Government plan to introduce a new immigration system which will apply to all migrants coming to the UK. The Government outlined their plans in a White Paper published in December 2018. The system isn’t really ‘new’ – rather than introducing wholesale reform, the White Paper actually suggests a series of changes and improvements to the existing Points Based System for highly skilled migrants in anticipation of EEA and Swiss nationals becoming subject to this system post-Brexit.

There are many positives in the White Paper; the cap on the number of skilled workers who can enter the UK and the resident labour market test have been abolished; and the skill level required to obtain a work visa has been lowered. This will make it easier for UK employers to recruit foreign nationals. However, there are also negatives: the Government propose to retain a £30,000 minimum salary threshold which will make it difficult for small and medium sized businesses to recruit foreign nationals.

During the parliamentary debate and commentary on the Immigration and Social Security Co-Ordination (EU Withdrawal) Bill many seemed to conflate the proposals in the White Paper with the provisions of the Bill. The Bill does not enact any of the specific proposals in the White Paper. This will need to be done through changes to the UK’s immigration rules, which must be laid before Parliament. Parliament can prevent the rules coming in to force by passing a resolution disapproving of the rules (which rarely happens but which, in my view, should happen more often).

As such there is still plenty of time to lobby for a more suitable post-Brexit immigration system and to highlight concerns with the proposals within the White Paper. Essentially the White Paper is the beginning of an ongoing public consultation on what the UK’s post-Brexit immigration system should look like. The system introduced in 2021 may end up being very different to the system envisaged by the White Paper. Those who will be affected by the changes should take the opportunity to engage with the Government, outlining the difficulties the proposals would cause and making suggestions for positive changes.

Finally I am often asked by clients who are pursuing human rights applications or appeals, for instance on the basis of their private and family life in the UK, how Brexit will affect them. It won’t. The European Convention on Human Rights and the Human Rights Act are not connected to the EU and will remain in place after Brexit. The Government have suggested that, once the Brexit process has been completed, they will once again turn their attention to repealing the Human Right Act. There is likely to be considerable popular support for repeal, at least initially. However, much like Brexit, once repeal of the Act becomes a reality, and the loss of rights this would entail for all UK residents is confronted, people may begin to question whether it is such a good idea after all. In any case, for the time being, the Act is here to stay. Preventing its appeal, if and when the Government begin taking steps to do this, is a fight for another day.

If you are a foreign national in the UK looking for more information on how all of this could affect you, or if you are a UK employer who relies on overseas workers to run your business and want to ensure you are prepared for future changes, then get in touch via our contact page.


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