Freedom of movement to end on first day of a no deal Brexit

The Home Secretary, Priti Patel, has announced that in case of a no deal Brexit EU nationals’ freedom of movement will end on 31 October 2019. Patel’s position is a departure from that of Sajid Javid, her predecessor, who emphasised the importance of a temporary system for a sensible transition period. Ben Sheldrick, managing partner at Magrath Sheldrick LLP, reminds us that the UK is ‘still hoping for an amended deal’ and the announcement could be seen in the context of positioning a ‘last minute negotiation with the EU’, while also highlighting the logistical difficulties of this policy. Furthermore, Sophie Barrett-Brown, senior partner at Laura Devine Immigration, questions the roll out of the European Temporary Leave to Remain.

This shift in position has invited criticism from:

• The 3 million group, an organisation campaigning for the rights of EU nationals who have said, ‘this will open the door to discrimination’ as ‘there are no systems in place’ for this scenario
• Ed Davey, a spokesperson for the Liberal Democrats, described it as being ‘detached from reality’ and an ‘utter mess’ of Brexit

“Chaos at the airports”

Sheldrick highlights that the rhetoric around Brexit has ‘shifted considerably’ since Boris Johnson ‘entered Downing Street’. But Sheldrick maintains that a ‘game of political poker’ is being played, meaning this announcement may just be ‘part of the strategy’.

Sheldrick further comments that it is ’practically and logistically impossible 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. The result would be chaos at the airports.’

He highlights that ‘a more likely way forward in a no-deal scenario will be by way of reliance on the policy announced by the May government. This would include the grant of three months deemed leave to enter for EU nationals entering through the e-gates who then be eligible to apply for European Temporary Leave to Remain (ETLR) for a three-year period. The previous government envisaged that this new ETLR scheme would operate until the end of December 2020 by which time a new immigration scheme would be agreed and legislated.’

The importance of the EU Withdrawal Act 2018 and the Immigration, Nationality and Asylum (EU Exit) Regulations 2019, SI 2019/745 is noted by Sheldrick. These will ‘provide for existing EU law to be retained in domestic legislation in the event of the UK’s departure from the EU. This means while, ‘the Home Secretary is right to say that EU free movement will end on 31 October [2019]’, the ‘UK domestic provisions must then kick-in to provide a temporary solution to the practical reality of international mobility.’ This must happen ‘while at the same time enabling political leaders to say that the country has left the EU institutions.’

Barrett-Brown highlights that fact that the ‘government has consistently stated that EU free movement would end on exit day (currently expected at 11pm on 31 October 2019)—UK law would then govern the immigration permission of arrivals from the EU, as with all other countries.’ However, she points out that ‘the rights of EU nationals and their family members resident in the UK prior to exit day would not change—they will remain eligible to apply for immigration permission under the EU Settlement Scheme until 31 December 2020’. This has been confirmed by the government who have reassured ‘EU nationals who may be overseas on exit day that they will be allowed to re-enter the UK and remain eligible to apply under the EU Settlement Scheme.

Barret-Brown, much like Sheldrick, questions the roll out of the ELTR and highlights that the ‘government has not yet expanded on these alterations’. Instead ‘the Home Office has merely stated that details of other changes immediately after 31 October [2019] and improvements to the previous government’s plans for a new immigration system are being developed’. Barret-Brown ‘hopes that the government’s

Source: LexisNexis