Leaked Home Office policy paper on post-Brexit immigration controls

The Guardian reported yesterday evening on a leaked Home Office policy document, which provides a fascinating insight into the machinations of policy makers behind the scenes.

It is written, as usual, in the excruciating style of meaningless buzzwords and doublespeak, reminiscent of the political language criticised by Orwell as designed “to give an appearance of solidity to pure wind”.

Everything will be ‘smooth’, ‘fair’, ‘robust’ and there are lots of nice photos of happy citizens enjoying our ‘deep and special partnership’ with the EU.

The legal path towards an ending of free movement

The paper provides some detail on the legal approach to post-Brexit immigration control.

At present there are effectively two parallel systems of control. EEA nationals (and their family members) are covered by EU law and the Citizen’s Directive, transposed into UK law by the Immigration (European Economic Area) Regulations 2016. Non-EEA nationals are covered by the Immigration Act 1971, which provides for the Immigration Rules.

The paper notes firstly that the European Union (Withdrawal) Bill will convert most EU law into UK law. It will repeal the European Communities Act 1972, but would maintain the effect of the Immigration (European Economic Area) Regulations and the position of EEA nationals and their family members would be broadly unaffected legally.  This is despite the Citizen’s Directive ceasing to have effect in UK law after Brexit.

The Government would then propose at some stage that the Regulations would be ‘switched off’. This would be achieved by repealing section 7 of the Immigration Act 1988, which provides for an exemption for the general requirement under the Immigration Act 1971 to obtain leave to enter or remain if you are not a UK national. This would end the special status of EEA nationals and their family members, and require them to have leave to enter or remain, bringing them under the system for non-EEA nationals[1].

Then the Government will have the ability to control migration through the Immigration Rules, which may, or may not, have special provisions for EEA nationals. I think any immigration lawyer can say with confidence that whatever the Immigration Rules say they WILL be hideously complex and poorly drafted.

An implementation phase and ‘deemed leave’

The paper suggests that post-Brexit ‘we will not seek to make substantive changes to the access that EU citizens have to the UK labour market or their ability to study.’ This statement is somewhat at odds with the description that follows, which is in fact a fairly substantial and complex legal change. The paper suggests the implementation phase may last at least two years.

To achieve this ‘gradual transition’ the Home Office propose granting ‘deemed leave’ to EEA nationals to allow them to pursue work or study for a limited period (3 months), if entering after Brexit. This means they would not need specific prior permission to enter, though their ability to enter could cancelled by an Immigration Officer.

After the end of the period of ‘deemed leave’ the individual would need to seek extended permission to stay, through an application to the Home Office, and subject to potential conditions such as evidence of a job offer, or minimum salary.

‘Deemed leave’ is quite an unusual concept, it can operate in the case of diplomats who when in service are exempt from immigration control, and who can be ‘deemed’ to have been given 90 days leave to remain when that service ends[2].

It certainly has not been a widespread mechanic of immigration control in recent years, and suggests the creation of yet another legal minefield. Indeed within the policy paper it is suggested that employers will be liable for the range of civil and criminal penalties if engaging an EEA national beyond the deemed leave period without a further application having been made.

After the Implementation Phase

This section of the paper is less definite about the medium to long term, recognising that the future system will heavily depend on the outcome of negotiations.

It highlights that there are certain minimum obligations on the UK’s immigration system, imposed by the World Trade Organisation’s General Agreement on Trade in Services (GATS). This is a very interesting and little understood dynamic to our current system, immigration routes such as business visitors, intra-company transfers and sole representatives of overseas businesses are actually mandated by the GATS. Whilst the UK is currently obligated to that agreement as a member of the EU, it will presumably sign up to the GATS in its own right after Brexit.

The paper discusses possible mechanisms for control in the labour market, highlighting the sponsorship regime for non-EEA workers, the use of ‘resident labour market’ tests to justify the selection of a non-UK worker and skills charges to encourage the training of UK workers.

In effect what appears to be proposed are similar systems to those already in place for non-EEA students and workers, but with some potential modifications.

As regards family migration, the paper seeks to bring EEA nationals’ ‘rights’ in line with UK nationals. As is now commonly understood, the current system for family migration for family members of UK nationals is draconian. The paper notes that the preferential position enjoyed by EEA nationals in relation to family members entering the UK will end. Aligning with the system for non-EEA family members of UK nationals will essentially drastically curtail the current rights that EEA nationals have.

The paper highlights the role of the Migration Advisory Committee (MAC), which is a non-departmental body that advises the UK Government on migration issues. The MAC has currently embarked on a ‘Call for Evidence’ across the UK’s industries and business, seeking evidence on the extent to which migrant labour is utilised and the potential effect of that labour flow being restricted. The MAC is expected to report in September 2018 and the paper notes that their advice will form a critical part of the decisions around any new system after the implementation phase.

The paper is fairly brusque as regards the important topics of the Common Travel Area, the Refugee Convention, and the devolved administrations, along with Crown Dependencies and Overseas Territories. Various phrases such as ‘we will continue to work with’, ‘we are working closely with’, ‘will seek to cooperate with’, appear to suggest that little concrete policy progress has been made.

Summary

Overall the paper is somewhat predictable. Essentially what is proposed is a special transitional system to get to the point where EEA nationals are subject to the Immigration Rules.

These rules may be modified from their current form. That model is what immigration lawyers currently struggle with. What it is suggestive of, unfortunately, is yet further complexity, dense drafting, caveats and sub-clauses as the Home Office policy wonks seek to create an all encompassing beast, which can be fine tuned to cover all circumstances and removes human decision making.

Of course, as someone has pointed out, the whole assumption of the paper is that the UK remains an attractive place to migrate to and our economy is buoyant. Neither of which seems necessarily certain at this stage.

The paper is also suggestive of a deep incompatibility between the direction the UK government wants to go and what the EU27 nations demand as a minimum for any trade deal, the 3 red lines as described by Michael Barnier of free movement of persons, goods, services and capital.

 

 

 

 

 

 

 

 

[1] Except the Republic of Ireland

[2] It also operates to an extent when entry clearance is granted abroad, which technically is deemed leave to enter,  though that is a less useful example, since it demands a prior application and the entering individual will have their passport stamped on entry.