From next year there will be two categories of EEA national:

1. Those who began their residence in the UK before 31 December 2020; and
2. Those who began their residence in the UK after 31 December 2020.

The law a person is subject to will depend on which category they fall into. Family members of EEA nationals will be similarly categorised. They get all the same rights as the EEA citizen, even if they are a national of a non-EEA country.

EU law rules on deportation will continue to apply to EEA nationals and their family members who fall within the first category, at least for any crimes committed before the end of 2020. For those in the second category, the harsher UK rules on deportation will apply.

This has been the government’s policy for a long time. But it has only just published the legislation to make this the case: the draft Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020.

These regulations come into force when the Immigration (EEA) Regulations 2016 are revoked. This will probably be on 1 January 2021.

Preserving the old EU law rules on deportation

The government has a new habit of revoking European laws and then immediately reinstating them. It did this with the European Communities Act 1972, which was repealed on 31 January 2020 but continues to have effect for the duration of the transitional period. This somewhat confusing legislative mechanism seems to be how the government has decided to ensure certain aspects of EU law continue to apply after Brexit.

The same thing will happen with the EEA Regulations on 1 January 2021. They will be revoked, but continue to apply in modified form. This is necessary to ensure that EEA citizens who relocated to the UK before 31 December 2020 can continue to benefit from EU free movement law and its more lenient approach to deportation (as required by the Brexit Withdrawal Agreement).

These preserved EU deportation rules will apply to anyone granted settled status, pre-settled status or a family permit under Appendix EU (Family Permit). They will also apply to anyone eligible to apply, even if they have not done so.

However, the EU rules will only apply to crimes committed before 31 December 2020. This is due to a different new provision, regulation 7 of the draft Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. This allows for UK deportation rules to apply where the criminal conduct occurred after the end of the Brexit transition period. This is in keeping with article 20 of the Withdrawal Agreement.

So if you commit a criminal offence after 31 December 2020, you will not get the benefit of the EU deportation rules. 

What’s the difference between EU and UK deportation rules?

The EU rules on deportation focus on rehabilitation and risk of re-offending. A person must be a threat to be deported. They cannot be deported solely because of their conviction, or in pursuance of a policy of general prevention. An EEA national cannot be deported because the government want to send a political message that the UK is tough on foreign criminals. The decision to deport must be based exclusively on the personal conduct of the person concerned. It is up to the Home Office to justify why deportation is necessary.

The UK rules on deportation are almost the direct opposite. Someone sentenced to over a year in prison is automatically subject to deportation. The Home Office does not need to justify deportation, beyond pointing to the criminal conviction which makes the person a “foreign criminal”. Deportation of foreign criminals is in the public interest, and it is up to the individual to show that one of the stringent exceptions to deportation applies.  

Given these stark differences, the preservation of the EU rules on deportation is not a mere technicality. It provides significant protection to EEA citizens against removal from the UK.

If you are an EEA citizen, and find yourself on the wrong side of the law, the first question your immigration lawyer will likely ask you is: did you come to the UK before or after 31 December 2020? The second will be: was the criminal offence committed before or after 31 December 2020? The answer to these questions will most likely determine whether or not you are able to stay in the UK.

This article has been updated. We originally thought that EU law deportation protections would apply to all EU nationals who moved here before 31 December 2020 even for crimes committed after that date. That was too good to be true; the position is as stated above.