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Sweeping new immigration regulations herald the end of free movement


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The government has published two draft sets of changes to UK immigration law to cater for the UK’s exit from the European Union. They include ending the “Dublin III” system under which asylum seekers are sent back to Calais and elsewhere in mainland Europe, which would be scrapped as early as next month if there is no Brexit deal.

Other changes include a system of granting temporary admission to the UK for EU migrants who arrive after the date of a no-deal Brexit. This recognises that, with EU free movement law potentially ending as early as 30 March 2019, there is simply no time to set up a comprehensive new immigration and border system.

The Immigration, Nationality and Asylum (EU Exit) Regulations 2019

First up, the EU Exit Regulations. These are about making sure that the UK’s existing immigration laws make sense after Brexit.

Not being in the EU any more gives the government the opportunity to make wholesale changes to the system: see the immigration white paper and Immigration Bill published just before Christmas. But that will take time. Meanwhile, laws that refer to the EU or won’t work without the co-operation of EU countries will no longer make sense and will need to be adjusted or scrapped.

The explanatory memo says:

All the provisions in this instrument will commence on exit day in a ‘no deal’ scenario, or in a ‘deal’ scenario from the end of the planned implementation on 31 December 2020, as set out in the draft Withdrawal Agreement with the European Union published on 14 November 2018. This is so that the UK’s statute book and current arrangements can continue to operate effectively, until free movement is ended. This instrument also contains provisions that delay the effect of some of the measures until the “appointed day”, which is the day on which new immigration rules providing for the new skills-based immigration system come into force.

There are around 50 amendments in these regulations. Some are authentically holding measures to preserve the status quo in the short term. For example, where policing laws say that citizens of “a member state” are eligible to become special constables, this wording previously included British citizens. After Brexit, it would not. This needs changing to “an EEA state or the United Kingdom” so that British citizens are still eligible.

Other amendments involve change from the status quo, albeit that they just reflect the reality of non-membership. The landmark Dublin III regulation on the swift removal of asylum seekers to mainland Europe goes, as does the Eurodac fingerprinting system and the European Asylum Support Office. It is the UK’s exit from the Union that really ends our participation in these institutions, not this legal tidying up, but it does bring the reality of Brexit into sharp relief. As Colin has consistently pointed out, successive UK governments have enthusiastically embraced the Dublin removal system.

There is also a whole schedule repealing EU laws on co-operation between members, such as joint removal flights, immigration officer liaison and the European Migration Network.

Another significant change is to remove the higher EU law protection against deportation for minor crimes:

EEA nationals (and their family members), coming to the UK for the first time after exit day, will be subject to UK rules on criminality. These include requirements which provide for the refusal of admission or leave to remain based on clear sentence-based thresholds, for exclusion or deportation from the UK where it is conducive to the public good, and for a presumption of deportation where a person has received a custodial sentence of at least 12 months. For EEA nationals (and their family members) who are resident in the UK before exit day, these tests will also apply to conduct committed after the commencement of this instrument.

There are various other technical, transitional and saving provisions.

The government has the power to make all these changes to existing Acts of Parliament using mere secondary legislation because of the European Union (Withdrawal) Act 2018.

The Immigration (European Economic Area Nationals) (EU Exit) Order 2019

Next, the EU Exit Order. This is much shorter. It seems to be the legal implementation of the government’s plan for future EU immigration if there is no deal. It’s hard to keep up with the various deal and no-deal permutations affecting different groups of people, but this is the business of allowing new arrivals into the country for an initial period of three months. The changes making this happen, according to the explanatory memo, “will come into force when the Immigration (European Economic Area) Regulations 2016 are revoked and free movement is brought to an end”.

Accordingly, under the EU Exit Order, an EEA national or a national of Switzerland would have leave to enter to the UK (article 2) for three months (article 6) unless they are subject to a deportation, removal or exclusion order (article 3).

There are also some changes related to the EU Settlement Scheme for existing residents. For example, those granted settled status under that scheme are placed on the list of people exempt from the immigration health surcharge.

The memo also mentions in passing that the order

is not the means to protect the rights of EEA nationals resident here before exit. In a no deal scenario, the Government intends to protect these rights by making regulations under clause 4 of the Immigration and Social Security Co-operation (EU Withdrawal) Bill, once enacted.

This seems to be an answer to the puzzle of what law would protect the legal status of EU citizens living in the UK before Brexit, before they apply to the Settlement Scheme, if there is no deal and the government scraps the EEA Regulations as promised. The government would replace the existing regulations that give EU citizens their right to be in the UK with new ones under clause 4 of the Immigration Bill, preserving their legal status for the couple of years it will take everyone to apply to the Settlement Scheme. Thanks to Jonathan Kingham for pointing this out, with the caveat that it was only a first glance interpretation. No doubt there is plenty more to digest in all this.

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CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.