What can immigration lawyers do when immigration law is uncertain?

This was not, admittedly, the advertised theme of the Immigration Law Practitioners’ Association annual seminar on free movement, which took place on 4 October. But the enervating effects of unpredictability and ambiguity in immigration law and policy ran through most every contribution.

Elspeth Guild’s opening remarks reminded us of the lack of legal certainty for EU citizens in the UK, with some clients beginning to “pack up and leave”. It was a point ably taken up by ILPA chair Adrian Berry, who took us at a rapid clip through the latest policy papers and declarations of the government.

Even policy positions released as recently as June are at risk of obsolescence, such are the vagaries of politics and international negotiations. But, as Adrian reminded us, proposals now temporarily shelved may provide insight into what passes for thinking in Marsham Street.

We know, for example, that sponsorship visas for EU nationals are under consideration. The paper airing this notion – leaked to the Guardian in September – may have been disavowed by the Home Secretary. Nevertheless it would be a surprise, the chair reminded us, if the next official paper were to be completely different from the “dystopian vision of the future” offered up by that document.

There are some signs of realism. Amber Rudd’s speech to the Conservative Party conference promised “no unnecessary burdens” for business. This at least recognises that with the end of free movement, there will indeed be burdens. Industry will doubtless take comfort in the assurance that they will not be unnecessary.

For the time being, though, there is no one solid plan on citizens’ rights or a future immigration system to which practitioners can refer clients.

Judge John McCarthy of the Immigration and Asylum Chamber at Birmingham spoke on recent free movement case law in the courts and tribunals. Naturally, there was no hint of political controversy here – but plenty of apolitical uncertainty to ponder.

In over 300 pending cases in Birmingham alone, we heard, the Sala decision is pleaded – but the Court of Appeal will hear argument on 12 October on whether or not Sala was rightly decided. What, in the meantime, is an immigration judge to do with the 300 cases? Answers on a postcard, please.

Two other major issues were canvassed in Judge McCarthy’s review of the case law. The decision in Awuku is one. As Colin wrote when that decision was handed down in March, the Court of Appeal “held that the Upper Tribunal has been wrong all along about proxy marriages and EU law”. It was not for Judge McCarthy, as a member of the UT panel to be overruled in that case, to criticise that decision. He did, however, point out that its view of the law as expressed in Kareem had stood for some three years.

Ambiguity also besets the tribunals in the last major area reviewed by the learned judge: that of interim orders to prevent removal in deportation cases and who has jurisdiction in some matters.

https://twitter.com/mckinneytweets/status/915535371332669440

Michal Meduna of the European Commission spoke next, beginning with the Brexit negotiations. Hearteningly, we heard, discussions on citizens’ rights are more advanced than the other potentially show-stopping issues of money and Northern Ireland.

That’s not saying much: “clear divergence” remains on access to the Court of Justice, family reunification, criminality checks, loss of settled status and voting rights (where the EU offering is for a change less generous than the UK position).

What we do know from the latest negotiating round is that for existing residents, “it makes sense to apply for a [permanent] residence document” – a viewpoint echoed by many practitioners throughout the day. The Home Office, mysteriously, disagrees.

Michal also reviewed some recently decided and upcoming CJEU cases. We need not dwell on these here, as you can read all about them on Free Movement.

Professor Bernard Ryan examined the relationship between EU free movement law and the domestic regulation of immigration – “two streams of immigration law that never quite meet”. Reimagining this status quo for Brexit will, it turns out, be rather complicated.

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With the repeal of section 7 of the Immigration Act 1988, leave to enter and remain will re-emerge as “organising concepts” for the position of EEA citizens in the UK. Some such citizens will be required to register with the Home Office on arrival, or else face a “proportionate response”. Whatever that means.

One thing, Bernard said, is certain: the “return of leave” is going to be messy.

Professor Steve Peers returned to the Brexit negotiations, taking us through the agreed comparison of progress on citizens’ rights produced after the September round of talks. There were some tentative predictions of UK concessions to come – this may prove prescient, but we will know more after this week’s talks.

Seconded: EU is expecting "substantial progress" on citizens' right next week, inc ECJ. Let's see. https://t.co/0PVDCRiHmP

— Jennifer Rankin (@JenniferMerode) October 7, 2017

Again, though, Steve recalled that things are in flux. Take the government’s legislative intentions: the published EU Withdrawal Bill and forthcoming Immigration Bill may well run into trouble in the House of Lords. The former is certain to be amended in the Commons. The hardness of Brexit, like so much else, is up for grabs as yet.

Matthew Evans of the AIRE Centre ended the seminar on a gloomy note: removals of EEA nationals are at their highest since records began. CJEU case law on deportation – widely perceived as positive – is not in fact consistent, Matthew pointed out, and has blurred the distinction between “public security” and “public policy”. This threatens to undermine protections for the (mostly Eastern) European nationals targeted by the Home Office under Operation Nexus.

Here, though, there was a perverse note of certainty. Of the 20 or so administrative removal cases in which Matthew has acted over the past year and a half, the Home Office has lost every one. Some things never change.

This non-practitioner is profoundly grateful for the opportunity to attend the seminar; practitioners who are not already ILPA members should certainly consider joining.