Short version: not a lot we did not know already

Long version…

Yesterday, the day after MPs began the process of the UK leaving the EU, the Government published a White Paper on Brexit. The formal title is The United Kingdom’s exit from and new partnership with the European Union White Paper Cm 9417. A White Paper is supposed to set out proposals for future legislation before a Bill is formally laid before Parliament. This time, the Bill preceded the proposals.

The White Paper only sets out the UK’s current negotiating position. Whether this position is realistic or not is quite another issue.

Immigration legislation needed

The White Paper recognises that legislation will be needed to deal with some of the immigration status consequences of withdrawal from the EU:

Parliament also has a critical role. First, legislation will be needed to give effect to our withdrawal from the EU and the content of such legislation will of course be determined by Parliament. This includes the Great Repeal Bill, but any significant policy changes will be underpinned by other primary legislation – allowing Parliament the opportunity to debate and scrutinise the changes. For example, we expect to bring forward separate bills on immigration and customs. There will also be a programme of secondary legislation under the Great Repeal Bill to address deficiencies in the preserved law, which will be subject to parliamentary oversight.

Any full legislation will be subject to proper parliamentary scrutiny and debate, which should prove interesting.

New legislation is needed because the Immigration Act 1971 criminalises any person who does not possess the “right of abode” and with some limited exceptions limits the right of abode to British citizens. The little known Immigration Act 1988 at section 7 exempts some non-citizens from that system of control:

7 Persons exercising Community rights and nationals of member States.

(1) A person shall not under the principal Act [the Immigration Act 1971] require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable right or of any provision made under section 2(2) of the European Communities Act 1972.

(2) The Secretary of State may by order made by statutory instrument give leave to enter the United Kingdom for a limited period to any class of persons who are nationals of member States but who are not entitled to enter the United Kingdom as mentioned in subsection (1) above; and any such order may give leave subject to such conditions as may be imposed by the order.

(3) References in the principal Act to limited leave shall include references to leave given by an order under subsection (2) above and a person having leave by virtue of such an order shall be treated as having been given that leave by a notice given to him by an immigration officer within the period specified in paragraph 6(1) of Schedule 2 to that Act.

When the UK leaves the EU this section will no longer have any force and the default position would be that all EU nationals and their family members would be subject to the full rigours of the Immigration Act 1971. This would mean they would require leave, would not have it and would therefore be committing a criminal offence by remaining.

New legislation could either:

1. Create a new carve out for EEA nationals and their family members which would be compatible with EU law rights ceasing to be enforceable; or
2. Confer by statute deemed leave to enter or remain on EEA nationals and their family members, or at least some of them.

It is theoretically possible that much-needed more ambitious immigration legislation could be brought forward to consolidate the current mess of over-amended and under-thought laws, but this seems unlikely. Parliamentary draftsmen and the Home Office will surely have enough on their hands already.
Immigration legislation is also almost certainly needed to secure the special position of Irish citizens in the UK, which is somewhat more uncertain than has previously been presumed to be the case. There is no real detail on this in the White Paper despite being covered in section 4 and in Annex 2.

End to free movement

The White Paper specifically states that free movement of persons, one of the fundamental pillars of the European Union and the Single Market and arguably the single greatest achievement of the EU bar the fall of the Berlin Wall, is to end. Well, sort of it does. What it actually says is:

We will design our immigration system to ensure that we are able to control the numbers of people who come here from the EU. In future, therefore, the Free Movement Directive will no longer apply and the migration of EU nationals will be subject to UK law.

This is presumably a reference to Directive 2004/38/EC, commonly referred to as the “Citizens’ Directive”. The default position on the UK leaving the EU is that this and any other EU legislation or treaty would no longer apply. Many have hoped that the UK might leave the EU but remain part of the EEA, in which case that particular Directive would still apply. Once again, this seems to be ruled out by the White Paper, pointing to a “Hard Brexit”.

This means that the status of EEA nationals and their family members in the UK will need specific legislation, so this is consistent with the earlier section on a new new Act of Parliament on immigration.

Status of EU residents of UK and UK residents of EU

There is a specific section of the White Paper on the status of EU residents of the UK and UK residents of the EU. This is said to be one of the Government’s “early priorities” but the White Paper goes on to say that an early agreement has not proven possible. Nevertheless:

The UK remains ready to give people the certainty they want and reach a reciprocal deal with our European partners at the earliest opportunity. It is the right and fair thing to do.

There is still no clarity at all on what offer the UK Government has made to the EU on the status of residents.

A “freezing” of free movement rights fully to preserve existing status for existing residents would be the best outcome, and it would potentially be possible to ensure ongoing oversight of the Court of Justice of the European Union for that existing group of residents, as argued for in a very good House of Lords Justice Committee Report. If the UK offer has fallen short of this, for example by simply offering unprotected domestic immigration status to existing residents, then this may well explain why an early deal has not proven possible.

In the meantime, the UK has been hardening rather than softening its position on the current status of EU nationals and family members. The latest guidance, (European Economic Area (EEA) and Swiss nationals: free movement rights, published by the Home Office on 1 February 2017) adopts the position that an EU national who is physically present in the UK but who does not have a right of residence is in breach of immigration laws:

Colette, a Belgian citizen, came to the UK for a holiday in August 2003 but then remained without permission or entitlement under community law. Any residence in the UK after her entitlement under community law came to an end was residence in breach of the immigration laws.

Logically, this would apply to those who are self sufficient and do not claim benefits but who do not have comprehensive sickness insurance. Classically, such a person might be the spouse of a British citizen who has not worked or been self employed.

According to Home Office guidance, such a person will be barred from naturalisation as a British citizen on good character grounds and logically would also be committing a criminal offence and be liable to up to 6 months in prison.

I really do not think the Home Office has thought through the logic and effect of its position on this because it seems unlikely that this approach would in fact be adopted against the spouse of a British citizen.

I had always thought that Articles 20 and 21 of the Treaty on the Functioning of the European Union (“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States…”) and the right of admission in EU law (Article 5 of Directive 2004/38/EC) meant that, even without a right of residence, an EU national could be lawfully present in the territory of another Member State.

If those aren’t enforceable Community rights (see Immigration Act 1988 section 7, above) then I don’t know what is.

The Home Office evidently takes a different view. In the latest regulations, the Immigration (European Economic Area) Regulations 2016, the Home Office has adopted a new power to curtail the right of entry and physical presence in the UK of EU nationals. Accompanying new guidance on misuse of rights and verification of EEA rights of residence includes a whole section on EEA nationals “who may be engaging in conduct intended to circumvent the requirement to be a qualified person.”

New immigration system

What will replace free movement? We still don’t know, and that is because the Government doesn’t know either:

We are considering very carefully the options that are open to us to gain control of the numbers of people coming to the UK from the EU.

All we are offered is platitudes about, I kid you not, encouraging the “brightest and the best to come to this country” and welcoming “genuine students and those with the skills and expertise to make our nation better still.”

An evidence gathering process will be undertaken, apparently, in which central Government will assess and decide what the UK economy needs and where.

Unsurprisingly, the White Paper does not address the weakness of this as a negotiating position with the remainder of the EU: we will take the citizens you want to hang onto yourself but no-one else.

When will it happen?

Article 50 is likely to be triggered during March 2017 which would mean that the UK will leave the EU by March 2019 unless there is a mutual agreement to the contrary, which is unlikely. However, many doubt that there is enough time to put all the necessary arrangements in place before then.

The White Paper recognises this difficulty, stating in the section on immigration:

There may be a phased process of implementation to prepare for the new arrangements. This would give businesses and individuals enough time to plan and prepare for those new arrangements.

This might potentially allow for transitioning to the EEA in the meantime, although this seems politically unlikely at this point in time.

End to jurisdiction of the Court of Justice of the European Union

I struggle to see why this is such an important issue for Theresa May if free movement laws are ending in any event. The only CJEU judgments the UK has considered problematic which I can think of have been on immigration and privacy, and both were surely manageable. The rest of the EU is likely to consider final arbitration by the CJEU very important.

Nevertheless, the White Paper says:

We will take control of our own statute book and bring an end to the jurisdiction of the Court of Justice of the European Union in the UK.

Well. The jurisdiction of the CJEU in the UK will obviously end when the UK leaves the EU. However, any lawyer and any victim of a crime or breach of a contract will tell you that laws and agreements — for example governing aspects of the deal between the UK and remainder of the EU — aren’t worth the paper they are written on without a court or dispute resolution mechanism to enforce them.

The White Paper explicitly recognises the need for some sort of dispute resolution mechanism, saying “the UK will seek to agree a new approach to interpretation and dispute resolution with the EU”. As Mick Jagger once said, you don’t always get what you want, of course. The White Paper seems relatively realistic on this front:

The actual form of dispute resolution in a future relationship with the EU will be a matter for negotiations between the UK and the EU, and we should not be constrained by precedent. Different dispute resolution mechanisms could apply to different agreements, depending on how the new relationship with the EU is structured. Any arrangements must be ones that respect UK sovereignty, protect the role of our courts and maximise legal certainty, including for businesses, consumers, workers and other citizens.

Annex A sets out four pages of examples of dispute resolution mechanisms which do not involve a court.

The White Paper does not mention the European Free Trade Area Court. This Court tends to follow the jurisdiction of the Court of Justice but it is not the Court of Justice and is therefore not ruled out by the White Paper.
If free movement rights were to be preserved for existing residents then the Court of Justice of the European Union would need to retain jurisdiction for that existing group. This would be a very limited ongoing jurisdiction in the UK and is not necessarily inconsistent with the White Paper.