The draft Immigration, Nationality and Asylum (EU Exit) Regulations 2019, laid before Parliament on 11 February, make major changes to the law on deportation of European Economic Area and Turkish citizens after Brexit. They will kick in on the date of Brexit, if there is no deal, or at the end of a transition period if there is a deal.

This article, informed by the Public Law Project’s Statutory Instruments Filtering and Tracking (SIFT) project, summarises the changes to the deportation regime. Non-lawyers should note that we are talking about “deportation” in its strict legal sense, which generally has to do with people who have committed crimes.

The new regulations change the grounds on which a decision can be made to restrict admission or residence in the UK of an EEA national or their family members, or to deport an EEA national or their family. They do this by amending the existing Immigration (European Economic Area) Regulations 2016, commonly referred to as the “EEA Regulations” for short.

The law on deporting EU citizens

An EEA national under the current law can only be deported on EU law grounds of public policy or public security, as per Regulation 27 of the EEA Regulations and Articles 27 and 28 of the 2004 Free Movement Directive. These provide a higher level of protection against deportation than non-EEA citizens enjoy.

Under Regulation 27, any decision to deport has to:

• Take into account proportionality
• Be based exclusively on the personal conduct of the person concerned
• The personal conduct of the individual has to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society

Where an EEA national or their family member has established a permanent right of residence, a decision to refuse admission, exclude, revoke residence or remove the person from the UK, is only permitted on serious grounds of public policy or public security.

The Home Office’s guidance on EEA decisions on grounds of public policy and public security notes that “serious grounds” is not defined in the EEA Regulations or the directive. To justify a decision on serious grounds, there has to be stronger grounds than would be applicable for a person who does not have a permanent right of residence.

For EEA nationals with 10 years’ residence in the UK and for children, removal from the UK  is only permitted on imperative grounds of public security.

What’s changing?

In the EEA Regulations

The 2019 regulations add an additional provision to the EEA Regulations: regulation 27A. This states that an EEA national can be deported, for conduct after the regulations come into force, where that deportation would be “conducive to the public good”.

Decisions taken on conducive grounds 27A.—

(1) An EEA decision may be taken on the ground that the decision is conducive to the public good.

(2) But a decision may only be taken under this regulation in relation to a person as a result of conduct that took place at or after the time when this regulation comes into force.

This is a lower test than is currently in force.

The new regulations also add a clause reinterpreting the definition of public policy and public security under Regulation 27 to give the UK greater latitude than it previously had.

(12) In Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.), for paragraph (1) substitute—

“(1) The United Kingdom enjoys considerable discretion, acting within the parameters set by the law, to define its own standards of public policy and public security, for purposes tailored to its individual context from time to time.”.

The explanatory notes describe the amendments as allowing the following:

• The refusal of admission or leave to remain if an EEA national has violated “clear sentence-based thresholds”;
• Exclusion or deportation from the UK where the Home Office deems it conducive to the public good; and
• A presumption of deportation where an EEA national has received a custodial sentence of at least 12 months.

For EEA nationals (and their non-EU family members) who are resident in the UK before exit day, these new tests will apply to any conduct committed by them after the new regulations come into force.

This is a major policy change for EEA nationals, who will now find it easier to be deported by the UK government, no matter how long they have been living in the UK or the status of their residence in the UK. Under the pre-exit day position, if an EEA national had been resident for ten years or was under 18 they could not be deported without there being imperative grounds of public security. This was an extremely high threshold requiring serious criminality. Now a prison sentence of 12 months will give rise to a presumption of deportation.

This seems like a significant policy change to be implementing via statutory instrument. Particularly given the government’s earlier statements that the statutory instruments facilitating Brexit would not be a “vehicle for policy changes”.

In primary legislation

This change is further shored up by changes to the UK Borders Act 2007.

The exceptions to automatic deportation under section 33 of the Act will only apply to EEA nationals where:

…the foreign criminal—

(i) was lawfully resident in the United Kingdom immediately before commencement day by virtue of the EU Treaties, or

(ii) has leave to enter or remain in the United Kingdom which was granted by virtue of residence scheme immigration rules,

and (b) the offence of which the foreign criminal was convicted as mentioned in section 32(1)(b) consisted of or included conduct that took place before commencement day.

This further confirms that the EEA exemption from the presumption of deportation does not apply to any crimes committed after exit day, no matter how long the person has been a permanent resident in the UK.

The explanatory memorandum notes that these changes to free movement are: “pending the passage and implementation of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill that is currently being considered by Parliament. If enacted, that Bill would end free movement and other retained EU law on immigration, which would otherwise be retained in UK law by the European Union (Withdrawal) Act 2018”.

Rights of Turkish nationals

The new regulations also disapply the Ankara Agreement so that after exit day any Turkish nationals who commit an offence in the UK can also be subject to deportation, as described above.

The explanatory memorandum states that there is

a change to the criminality threshold for Turkish workers and business persons in respect of conduct after exit. Under the ECAA, which is retained EU law until Parliament has passed the Immigration and Social Security Coordination (EU Withdrawal) Bill, any such criminality is considered against the EU test of public policy or public security. This will be replaced, for post-exit conduct, by the UK’s sentence-based criminality thresholds and by provision for exclusion and deportation from the UK where it is conducive to the public good. It aligns treatment of Turkish workers and business persons with the treatment of EEA nationals described in paragraph 7.10, below.

The provision states:

Disapplication of rights etc. 49.—

(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which fall within paragraph (3) cease to be recognised and available in domestic law so far as they are inconsistent with or otherwise capable of affecting a relevant decision taken in respect of a person.

(2) A decision is relevant for the purposes of paragraph (1) if—

(a) it is taken by reference to any conduct of the person that takes place at or after the time when this regulation comes into force; and

(b) it restricts or removes the ability of the person to enter or remain in the United Kingdom.

(3) A matter falls within this paragraph if it—

(a) continues to be recognised and available in domestic law by virtue of section 4 of the European Union (Withdrawal) Act 2018; and

(b) derives from the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963.

These are significant policy changes to the deportation thresholds for EEA and Turkish nationals. It will be interesting to see whether altering immigration policy via secondary legislation will become a post-Brexit trend.

This article is informed by the Public Law Project’s Statutory Instruments Filtering and Tracking (SIFT) project. Any errors are my own.