A major consequence of Brexit is that EU free movement laws will no longer apply to the UK. Before free movement is brought to an end, the Government must answer three significant questions:

  • What is to be the immigration status of EU citizens currently resident in the UK and what rights will they have?
  • What is to be the new immigration policy to regulate migration from the EU?
  • What border checks should be conducted on EU citizens coming to the UK?

Due to the significance of the changes, the previous Government announced in its White Paper on Brexit its intention to bring forward a new Immigration Bill. Existing rules may continue to apply during an implementation period in which new policies are phased in.

The latest available data suggests there were around 900,000 British citizens living in other EU countries in 2011, and around 3.2 million citizens of other EU countries living in the UK in 2015.

Securing the status of British and other EU migrants

For both the Government and European leaders, a top priority in the Brexit negotiations will be to secure the rights of British citizens living in the 27 remaining EU Member States and those of EU citizens living in the UK.

Although there is a broad consensus on the need to protect migrants’
rights and agreement on the importance of an early resolution of the issue, it is more complicated than it first appears.

The Government must decide:

  • Shall those EU citizens with a right to permanent residence in the UK keep all the rights they currently enjoy?
  • What cut-off date should apply to those EU citizens currently living in the UK but who have not acquired a right of permanent residence?

The first issue may be a sticking point in negotiations: for instance, EU citizens in the UK (and British citizens living in other EU Member States) currently enjoy greater rights than British citizens in the UK in terms of bringing family members to live with them. The EU wants these rights protected (or ‘frozen’) for the lifetime of these migrants.

A new immigration policy for migration from the EU

A future policy may be subject to the terms of any trade deal struck between the Government and the EU.

The Scottish Government and the Mayor of London have called for a regional visa system to take account of regions’ specific needs. The May Government took the view that such a change would complicate the immigration system and harm its integrity.

The Immigration Rules applicable to non-EU migrants would, if applied to EU migration, dramatically cut the numbers of medium and low skilled workers coming to the UK. The Exiting the EU Committee highlighted that a future migration policy must be flexible to meet the labour needs of all sectors of the UK economy. The NHS predicts a shortage of nurses, and the agriculture and horticulture industry has warned of the consequences if it’s unable to recruit ‘low skilled’ labour from the EU27.

Immigration control and EU citizens

If the Government opts to add EU Member States to the list of those countries whose citizens enjoy visa-free travel to the UK it must still decide what checks will be conducted before or upon arrival. Subjecting EU citizens to the same checks applied to non-EU visitors would place huge additional demands on Border Force staff. Online pre-travel screening has been suggested as a means of alleviating pressure at airports and ports.

The refugee crisis and the future of the Dublin III Regulation

Aid agencies warn that 2017 will see no let-up in the numbers of people crossing the Mediterranean to seek asylum in Europe. Whilst the UK’s obligations under the 1951 Refugee Convention are unaffected by Brexit, the Government must decide whether it will seek to continue UK participation in the Dublin III Regulation, which determines which EU Member State is responsible for an asylum seeker. To date, successive Governments have been very much in favour of the Dublin Regulation, under which the UK has transferred many more asylum seekers to other Member States than it has received.

Outside the EU, the UK would not be able to opt out of proposed changes to the Regulation that would ease the burden on southern Member States through a more even distribution of asylum seekers throughout Europe. Declining to participate further would probably end, at least in the short to medium term, the UK’s ability to transfer asylum seekers to other states. Hitherto there has been no need for the UK to negotiate agreements with other states for the return of asylum seekers. Other countries may be unwilling to accept transfers from the UK with nothing in return.

This article is part of Key Issues 2017 – a series of briefings on the topics that will take centre stage in UK and international politics in the new Parliament.

Image: Border control at Heathrow T5 by gigijin; Creative Commons Attribution 2.0 Generic (CC by 2.0)