The Government has indicated a shift in policy affecting the timeframe for ending free movement, if the UK leaves the EU without a deal on 31 October. Immigration experts argue the Government is not ready to implement a new system from 31 October.
This Insight examines what needs to happen before free movement can end in the UK and what it may mean for EU citizens living in the UK before exit day. It does not consider the implications of the policy changes on future EU arrivals to the UK or UK citizens in the EU.
As this is a fast-moving policy area in which there is a lack of clarity on the Government’s position, this Insight should be read as correct at the time of writing.
What legal changes are needed to end free movement in the UK from 31 October?
The free movement of EU citizens to the UK does not end automatically as a result of the UK’s withdrawal from the EU. The Government will need to end free movement by changing UK law.
On exit day, the European Union (Withdrawal) Act 2018 (EUWA) will convert much of EU law into retained EU law. As a result of the Act, the free movement of EU citizens would continue to be law in the UK until its legal foundation is repealed.
Theresa May’s Government also passed secondary legislation giving EU citizens arriving after exit day an automatic right to enter for up to three months.
What did the May Government plan to do?
In a no-deal Brexit scenario, Theresa May’s Government was planning to “end free movement as soon as possible through the Immigration and Social Security Co-ordination (EU Withdrawal) Bill.”
However, the Bill has not been considered in Parliament since completing its committee stage in the House of Commons in March 2019.
What has the Johnson Government said it will do?
The Home Office has confirmed the Government intends to end free movement, “as it currently stands” as of 31 October 2019.
News sources have reported that Home Secretary Priti Patel is considering a ‘new plan’ to end free movement by secondary legislation, suggesting that the Immigration Bill (which is primary legislation) will not be taken forward. The details of how free movement could be repealed by secondary legislation have not been announced.
Secondary legislation can only be made under a power set out in primary legislation. Some pieces of primary legislation create powers to make secondary legislation that can amend other pieces of primary legislation (called ‘Henry VIII powers’).
Alexandra Sinclair, a fellow at the Public Law Project, writes:
“A provision repealing free movement is presently contained in clause 1 of the stalled Immigration and Social Security Co-ordination (EU Withdrawal) Bill. But if that bill cannot be passed in time, in order to revoke freedom of movement by statutory instrument, the government would need to use a ‘Henry VIII’ power. That is because freedom of movement is protected by both domestic primary legislation (in particular the Immigration Act 1988) and directly effective EU Treaty provisions which EU(W)A converts into domestic law on exit day.”
Some have speculated that the Government could end free movement using the Henry VIII power in section 8 of EUWA – a power to correct deficiencies in retained EU law. Alexandra Sinclair has said that if the Government did so, it “might run into difficulties.” The Institute for Government’s Joe Owen said such an act “would be wide open for judicial review.”
What are the implications for EU citizens living in the UK before 31 October?
Following the initial reporting of the Government’s plan, various groups and immigration experts raised questions about what it would mean for EU citizens currently living in the UK. In particular, questions were raised over whether the policy affects the deadline for making settled status applications.
The Home Office subsequently stated: “The Prime Minister has made it clear that all EU citizens resident here by 31 October will be welcome to stay and they are eligible for the EU Settlement Scheme.”
It confirms that EU citizens who reside in the UK prior to 31 October will have until “at least 31 December 2020” to apply for settled status. Questions remain, however, as to what the legal basis would be for their continued residence in the UK after 31 October. While the Immigration Rules relating to those who have received pre-settled or settled status are already in place, it is unclear what right those who are eligible for status, but have yet to obtain it, could rely on.
Nicholas Hatton, co-founder of the3million – a campaign group representing EU citizens in the UK, said:
“Ending freedom of movement without putting legal provisions in place for those EU citizens who have not yet successfully applied through the settlement scheme will mean that millions of lawful citizens will have their legal status removed overnight.”
If free movement were to end on 31 October, changes to the legislation / Immigration Rules would need to be made prior to exit day. These changes would need to set out a new or amended immigration status, providing lawful residence to those EU citizens who are eligible for settled status, but have not applied as of 31 October.
How would EU citizens show evidence of their rights after 31 October?
Questions have also been raised about how EU citizens who are eligible to apply to the Settlement Scheme would prove their right to live and work in the UK after free movement ends. Employers and landlords, among others, are required to check the immigration status of those they employ or rent to.
“Enforcing new immigration rules for EU citizens arriving after 31 October would also require the Government to give status to all those EU citizens already living in the UK. Less than a third of the 3.5 million or so EU citizens eligible for settled status have actually gone through the process of securing their rights, leaving millions in limbo after Brexit day. There would be no way for employers to distinguish between those EU citizens who have lived and worked in the UK for decades, but are yet to get settled status, and those who arrive in the days after a no-deal Brexit without a visa or permission to work.”
The Home Office suggests that the process for proving the right to work / rent will not change for EU citizens who are living in the UK before 31 October. It states:
“[F]or those who haven’t applied when free movement ends, they will still have the same entitlements to work, benefits and services and will be able to prove these in the same way as they do now.”
‘The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19’, House of Commons Library, 25 January 2019.
About the authors: This Insight was written by Hannah Wilkins, an immigration and asylum researcher at the House of Commons Library, with assistance from Daniel Ferguson, Melissa Macdonald and Vaughne Miller.