The UK Government has said that EU free movement rules will cease to apply immediately if there is a no-deal Brexit on 31 October.
Whilst much has been made of this in the media, the announcement (by way of an informal media briefing rather than a formal policy document) should be viewed with caution.
Background and Context
Since Boris Johnson entered Downing Street and appointed a cabinet of committed Brexiters the rhetoric surrounding the UK’s departure has shifted in tone. A no-deal Brexit on 31 October is now the default position and, it would appear, the most likely outcome.
It is important however to remember that the Government is still hoping for an amended deal, preferably without the Irish backstop or with a time-limit to its operation. Indeed, the Prime Minister has written this week to Donald Tusk, President of the European Council, committing the Government to “work with energy and determination, to achieve an agreement”.
We therefore have to see this latest communication in the context of positioning the final negotiation with the EU. We are witnessing a remarkable game of political poker and the language on the end of free movement and the imposition of borders is part of the strategy. Citizens’ rights and border controls are a central neuralgic issue in the Brexit negotiation and it is perhaps unsurprising that the Government has emphasised this hard-line approach whilst at the same time reaching out for a deal.
It is correct that free movement under the EU Treaties will end when the UK leaves the EU regardless of the date this takes place. However this does not automatically mean that the practical status quo will change.
Under Theresa May’s Withdrawal Agreement (“WA”) the UK would enter into a transition period for approximately two years after exit day during which time the free movement of people would continue. However this would be governed by the WA which would have the status of an international treaty. The transition was originally intended to end on 31 December 2020; however the extension to the article 50 notice period coupled with Parliament’s refusal to ratify the WA mean that this date is no longer likely to apply.
Under the EU (Withdrawal) Act 2018 EU law will be retained in UK domestic law on exit day whether the country leaves with a deal or not. This means that the Government may continue to allow freedom of movement into the UK after 31 October under domestic law whilst at the same time stating that the country has left the Single Market including the “four freedoms”.
The instrument that ends the EU’s rules on free movement in the UK and other retained EU law is the Immigration and Social Security Co-Ordination (EU Withdrawal) Bill. This bill has not been passed by Parliament and is unlikely to be passed by 31 October, not least because it is an instrument that could be used by MPs determined to prevent a no-deal Brexit as a vehicle to force a request for a further extension to article 50. Boris Johnson’s Government will not risk a parliamentary ambush.
No-deal Immigration Policy
The previous Government’s policy on movement into the UK for EU nationals following a no-deal Brexit contained two important provisions:
- EU nationals would be granted deemed leave to enter the UK for a three month period during a transition period to a new immigration scheme to be launched at the beginning of 2021.
- EU nationals wishing to stay longer than three months to work, study or run a business would be able to apply for a 36 month extension of stay under a European Temporary Leave to Remain (“ETLR”) scheme available during the transition period.
It is this policy that is under review, although it is unclear what will replace it.
The Home Office media factsheet published on 19 August says:
“EU citizens will still be able to come to the UK on holiday and for short trips, but what will change is the arrangements for people coming to the UK for longer periods of time and for work and study. Details of other changes immediately after 31 October and improvements to the previous Governments plans for a new immigration system are being developed”.
The factsheet emphasises that EU citizens residing in the UK on or before 31 October can apply under the EU Settlement Scheme. However it is silent on the question of what schemes will be available for long term economic migrants from EU27 from 1 November.
What happens next?
Talking of an end to free movement without explaining what will replace it has undoubtedly caused a great deal of concern and anxiety for EU nationals and their employers.
Further announcements should be expected in the coming days. In the meantime stakeholders should note the following:
- EU Citizens resident in the UK by 31 October remain eligible to apply under the EU Settlement Scheme.
- EU citizens will have until at least 31 December 2020 to apply.
- Qualifying EU citizens are advised to apply as soon as possible under the scheme. This is because there is a lack of clarity from the Government over the documentation that will be required to establish a right to reside after 31 October in the absence of registration under the scheme.
- Irish citizens will not be affected by changes to freedom of movement because of a bilateral agreement between Britain and Ireland and the maintenance of the Common Travel Area.
- More information regarding arrangements for entry to the UK for EU nationals after 31 October will be published as the situation develops over the next few weeks.
In addition to the legal framework set out above, the announcement to end free movement must be seen in the context of practical and logistical reality. It will not be possible to require EU national arrivals or returnees to undergo “examination” under the Immigration Act 1971 on arrival at the airports. This would require presentation to an immigration officer who would ask questions with a view to determining whether or not to grant “leave to enter”. There are insufficient numbers of IOs (or desks) to be able to impose this requirement overnight. To do so risks creating chaos at the airports.
The Home Office has recently expanded e-gates to a number of non-EU countries to cater for the existing volume of traffic to the UK.
A more likely outcome is a version of the European Temporary Leave to Remain scheme. However at this stage of the Government’s attempt to reopen the WA it is unlikely to offer this solution on a unilateral basis.
The Government will not have come up with a new immigration framework or an “Australian Points Based System” by 31 October. Some form of interim measure is inevitable.
Mobility is now being used as leverage in the attempt to renegotiate the terms of withdrawal.
We will continue to keep our clients and professional contacts informed of developments as announcements are made.