Brexit

Laura Devine, Laura Devine Solicitors

On 19 March 2018, just under a year since the triggering of Article 50, the negotiators of the European Union and the United Kingdom agreed on a draft set of terms on the UK’s exit from the Union, including on EU citizens’ rights. While the agreement is preluded with “nothing is agreed until everything is agreed” it does provide the most comprehensive plan for EU citizens’ rights to date. 

Laura Devine

Citizens' rights

The parties agreed to a transitional period (also referred to as the “implementation period”) following the UK’s departure, lasting from 30 March 2019 to 31 December 2020. During this period, citizens from the UK and EU will retain their rights of free movement. This materially pushes forward the original anticipated cut-off date for free movement rights of 29 March 2019, as agreed in the Joint Report reached in December 2017.

Establishment of this date was critical, as it will have a significant impact on the future status and rights of EU and UK nationals seeking to remain in their respective host states. In the UK, EU nationals seeking to enter or remain in the UK post-Brexit will fall into three categories:

  • Individuals eligible to stay indefinitely: EU citizens who have lawfully resided (ie, they exercised their treaty rights by either working, being self-employed, studying or being self-sufficient) in the UK for a minimum of five continuous years on 31 December 2020, will be covered by the Withdrawal Agreement and eligible for permanent residence (in the UK, this status will be referred to as “settled status”). Those who already have a permanent residence document issued under the current framework will be entitled to exchange it for a new one at either a low cost or free of charge, subject to a criminality and security background check.
  • Individuals eligible to remain: EU citizens living in the UK on 31 December 2020, but who do not yet have five years’ continuous residence, will be permitted to stay under a temporary status allowing them to reach five years of continuous residence. Thereafter, they will be permitted to apply for settled status.
  • Individuals not covered under the Withdrawal Agreement: EU citizens who meet neither of the above criteria (ie, they arrived in the UK after 31 December 2020) will not be covered under the Withdrawal Agreement. Accordingly, should they wish to enter and remain, they will need to apply under the UK’s future applicable immigration laws, which are yet to be determined.

Family members of EU national rights holders will be permitted to remain in the UK under the following terms, in accordance with the Withdrawal Agreement:

  • Family members who were legally living with or joined the rights holder in the UK on or before 31 December 2020 will be permitted to remain and apply for settled status after five years of continuous residence.
  • Close family members (including spouses; civil and unmarried partners; and dependent children and parents) who were not resident on the 31 December 2020, but who had an existing relationship with the EU national rights holder on the cut-off date, and continue to be related to the individual, will be permitted to join them.
  • Children born or adopted after the cut-off date to either parents who are both covered by the Withdrawal Agreement, or, where one parent is protected by the Withdrawal Agreement and the other is a citizen of the host state, will be permitted to stay.
  • Children born or adopted after the cut-off date to a parent who is covered by the Withdrawal Agreement, and who has joint or sole custody of the child, will be permitted to stay.

Under the terms of the agreement, the UK government is required to allow a minimum of six months from the end of the transition period (ie, until at least 30 June 2021) for EU citizens and their family members to apply for a status document. However, the Home Office is expected to roll out the new scheme on a voluntary basis from later this year.

Absences of up to five consecutive years (up from two) will be permitted before settled status under the Withdrawal Agreement is lost.

It should also be noted that all applicants may be subject to criminality and security background checks. While restrictions on the basis of public policy or security for conduct before the specified date will be handled under EU law, restrictions on post-withdrawal conduct will be handled under the relevant national law.

 

Process

With regard to process, the EU and the UK agreed that the administrative procedures for applications would be “transparent, smooth, and streamlined”. Accordingly, they committed to the following:

  • only requiring what is necessary and proportionate;
  • avoiding unnecessary administrative burdens;
  • making applications short and simple, while working to help applicants and give them the opportunity to correct or supply incorrect/missing information;
  • giving proportionate responses to missing the deadline for good reason; and
  • committing to residence documents being either free of charge or at low cost.

For its part, the UK has conceded that the system presently in place for processing applications would be insufficient in light of the estimated 3 million EU migrants potentially seeking post-Brexit status in the UK. To address this issue, the government plans to roll out a new “streamlined, user-friendly and digital” online system to start running on a voluntary basis from the second half of 2018. Allowing rights holders and their family members to apply before the UK’s withdrawal from the EU would provide a sense of stability for applicants and ease the future administrative strain on the government.

Maintaining the spirit of the Agreement, the UK’s proposed digital application system would be inexpensive and require minimal documentary evidence on the part of applicants. To assist in simplifying the process, the government would draw on existing data wherever possible, including, for example, HM Revenue and Customs records to evidence residence as a worker. Additionally, applicants may be able to scan passport images and upload selfies to complete the process. Under the government’s proposal, fees would be kept at or below the cost of a British passport, which for a standard adult first passport is presently £72.50.

 

Jurisdiction

Despite the prime minister’s repeated promises to remove the UK from the EU’s legal jurisdiction, under the Withdrawal Agreement, opinions from the Court of Justice of the European Union (CJEU) will be given “due regard” by UK courts and tribunals even following the specified date. Additionally, a mechanism will be established where, for eight years after the citizens’ rights portion of the Withdrawal Agreement is given force, UK courts will be able to ask the CJEU questions of interpretation.

 

Northern Ireland

In the Joint Report, both the UK and the EU agreed that the 1998 Good Friday (Belfast) Agreement must be “protected in all its parts,” including the avoidance of a hard border, as well as ongoing respect for the constitutional status of Northern Ireland and the principle of consent. The parties made it clear that while this section of the Report must be upheld, it would not dictate the rest of the agreement. Rather, it must be viewed independently.

Moreover, the UK reiterated its commitment to ongoing north-south and east-west cooperation, and the parties agreed to continue financing related peace programmes, with a proactive commitment to maintain such funding in the future.

Though the parties agreed in the Report to “establish mechanisms to ensure the implementation and oversight of any specific arrangement to safeguard the integrity of the EU Internal Market and the Customs Union,” no details were given and clearly much of the hard work will be agreeing to the necessary particulars.

In a blow to the UK, however, under the EU’s subsequent draft Withdrawal Agreement Northern Ireland would remain part of the EU’s single market and customs union. Though this backstop option would avoid a hard border between the Republic of Ireland and Northern Ireland, critics in Britain maintain that it threatens the constitutional integrity of the UK. Prime Minister May stated that the draft agreement, in its present form, and in particular with regard to Northern Ireland, was unacceptable.

 

New immigration minister

Outside the Brexit negotiations, Prime Minister Theresa May appointed Romsey and Southampton North MP Caroline Nokes to replace Brandon Lewis as the UK’s latest minister of state for immigration. Ms Nokes, who assumed office on 8 January 2018, has shown little interest in the topic of immigration during her tenure in Parliament. Indeed, the appointment of the former CEO of the National Pony Society was seen as a peculiar choice for the current government, as she had openly supported remaining in the EU in the June 2016 referendum. Most recently, the new minister upset some in her party when she voiced her support for the outsourcing of production of the new British passport to a European company by stating that the UK should behave like a “global, outward-looking trading nation.”

Ms Nokes is the sixth immigration minister since the Conservative Party took power in 2010.

 

Analysis

The past year has been a bumpy ride for the prime minister and her Conservative Party. First, the UK has not fared well in the recent negotiations (at least by the government’s standards). Some more notable instances include the UK conceding a much later cut-off date and longer transitional period than it initially proposed; EU jurisdiction, at least in part, continuing for eight years after withdrawal; and the potential for Northern Ireland to remain in the EU’s customs territory as a legal fallback position should the parties not agree to an alternative before Brexit day.

Add to these Brexit woes a distinctly weakened and, by many accounts, sharply divided government following a miscalculated general election, and the UK appears to be in a challenging space for future Article 50 negotiations. While the PM clearly hoped to inject some new blood into her cabinet with the most recent shuffling of positions, it is not clear what Ms Nokes will bring to the table with regard to the future of UK immigration, as she has apparently never previously shown any interest in sitting at it. Moreover, given the prime minister’s own history and strong positions on immigration, it seems rather unlikely that she would have appointed someone who would challenge her approach to the issue. Indeed, the MP from Romsey and Southampton North may simply be a ministerial placeholder.

Unfortunately, the actions of the past year seems to point to an outcome – generally with Brexit and specifically with immigration – that will please no one. For Leave supporters, the restrictions on immigration will be too few and take too long, with too many concessions to the EU. Remainers, on the other hand, will almost certainly feel that the UK’s draconian rules and future immigration legislation will ensure economic, cultural, social, and soft power decline.

***

While the UK may have achieved “sufficient progress” to limp forward in the withdrawal negotiations, this progress may, in fact, simply be the first step toward a difficult and unwanted stagnation.

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