Brexit

Laura Devine, Laura Devine Solicitors

With the first round of Brexit negotiations concluded, and as a new Minister of State for Immigration assumes office, we examine how these events will shape UK immigration in 2018 and beyond.

Laura Devine

Brexit Negotiations - Round One

On 8 December 2017, the negotiators of the European Union and the United Kingdom government issued a Joint Report (Report) on phase one of the ongoing Article 50 negotiations. This first stage of talks focused on three priority areas: the rights of EU nationals in the UK and UK citizens in the EU; a framework for handling Northern Ireland’s unique situation; and the UK’s pending financial settlement with the EU.

In concluding that “sufficient progress” was made in phase one, the European Commission recommended that the European Council allow talks to proceed to phase two. On 15 December 2017, the European Council concurred.

Notably, the Report states at the outset that the commitments agreed to in phase one were done so as a whole, rather than as distinct, divisible parts. Though the parties acknowledged that adaptations could be made to accommodate transitional arrangements, this approach means that individual, key aspects of the initial talks will not be up for renegotiation in phase two and beyond.

Citizens' Rights

The EU and UK agreed that the cut-off date (or “specified date,” as it is termed in the Report), for EU nationals in the UK and UK citizens in the EU to keep their right to reside, as under the present rules of free movement, would be the date the UK withdraws from the EU. As the UK invoked Article 50 on 29 March 2017, thus starting the two-year negotiation clock, it is anticipated, though not settled, that this “specified date” will therefore be 29 March 2019.

Agreement on this date was critical, as it will have significant impact on the future status and rights of EU and UK nationals seeking to remain in their respective host States. Under the agreed terms detailed in the Report, individuals will fall into three categories on the specified date:

  • individuals eligible for permanent residence: EU or UK citizens, who have legally resided in the UK or an EU27 member state respectively for a minimum of five continuous years on the specified date, will be covered by the Withdrawal Agreement and eligible for permanent residence 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. In the UK, this status will be referred to as “settled status”.
  • individuals eligible to remain: EU or UK citizens who are living in the UK or an EU27 member state respectively on the specified date, but who do not yet have five years’ continuous residence, will be permitted to stay under a temporary status for the amount of time necessary to reach five years of continuous residence. Thereafter, they will be allowed to apply for permanent residence.
  • individuals not covered under the Withdrawal Agreement: Individuals who meet neither of the above criteria (ie, they arrived in the host state after the specified date) will not be covered under the Withdrawal Agreement. Accordingly, should they wish to stay, they will need to apply under their host state’s future applicable immigration laws.

Family members will be permitted to remain in the host state or join EU/UK national rights holders as follows under the Withdrawal Agreement:

  • family members who were legally resident in the UK or EU27 member state on the specified date will be permitted to remain;
  • family members who were not resident on the specified date, but who were related to the EU/UK national rights holder on the specified date, and continue to be related to the individual, will be permitted to join them;
  • children born or adopted after the specified 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; and
  • children born or adopted after the specified 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.

Family members will include:

  • spouses;
  • civil partners;
  • unmarried partners (also referred to as durable relationships);
  • children who are under 21, or who are dependants; and
  • dependent parents and grandparents.

 Absences of up to five consecutive years will be permitted before permanent residence 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.

Finally, the EU has expressed its intent that EU nationals’ residence rights continue after the UK withdraws from the Union for a two-year transition period. While Britain is sure to object to this proposal, its hand appears to be steadily weakening, such that it may have to acquiesce to ongoing free movement in principle, though perhaps under a different name.

Process

With regard to process, the EU and 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;
  • allowing a minimum of two years to apply for status, during which applicants will have the rights conferred by the Withdrawal Agreement; and
  • committing to residence documents being either free of charge or 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.

In keeping in the spirit of the Report, 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. 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

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 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.

Finally, it was agreed that Northern Irish who exercise their birthright of choosing to be Irish would continue to enjoy all the rights of EU citizens.

New Immigration Minister

Outside of 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 potentially odd choice for the current government, as she had openly supported remaining in the EU in the June 2016 referendum.

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 faired well in the recent negotiations (at least by the government’s standards). Some of the more notable instances include the UK conceding a much later “specified date” than it initially proposed; EU jurisdiction, at least in part, continuing for eight years after withdrawal; and the Union now pressing for an extension of free movement rights during the transition period.

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 yet another 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 campaigners, the restrictions on immigration will be too little, take too long, with too many concessions for 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.

                                                                           ***

So 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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