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What happens to EU immigration and asylum law after the "great poisonous puffball of Brexit" is punctured?

08 October 2019 Iain Halliday Blog

As the Brexit crisis trundles on, and we edge closer to the deadline of 31 October 2019, many are trying to pin down what happens to EU immigration and asylum law after the UK leaves the EU (or, to use the Prime Minister’s words, after we puncture “the great poisonous puffball of Brexit”).

The government’s stated aim is to leave the EU, with or without a deal, on 31 October 2019. If there is a deal, there will be a transitional period. During this time nothing will change and EU law will continue. Under the deal negotiated by Theresa May, that period would last until 31 December 2020. The period under any deal negotiated by Boris Johnson is likely to be the same or similar.

The more pertinent question, given that very little progress has been made towards concluding a deal, is what happens if there is a no-deal Brexit?

The UK will leave the EU by automatic operation of law on 31 October 2019. The Benn Act requires the Prime Minister (whoever that may be at the time) to seek an extension from the EU to 31 January 2020 if a deal has not been approved by Parliament before 19 October 2019. Boris Johnson has suggested to Parliament and the general public that he will not comply with this Act (although he has assured the Court of Session that these statements do not reflect the Government’s understanding of their legal obligations and that he will, in fact, comply with the Act). It is impossible to predict what may happen over the courser of the next few weeks. In any case, complying with the Act would not prevent no deal; merely delay it until January.

So what exactly is the status of EU immigration and asylum law in the UK after no deal?

For the most part, EU law continues after Brexit thanks to the European Union (Withdrawal) Act 2018. This Act creates a body of “retained EU law” which can then be changed by Parliament as and when they wish after Brexit. The Act prevents the immediate repeal of huge swathes of EU law on Brexit day, which would have left gaping chasms in the UK’s legal system.

EU free movement law will continue after Brexit as the Immigration (EEA) Regulations 2016, and directly effective rights under the Free Movement Directive, will become “retained EU law”. In due course, the 2016 regulations will be repealed. This will most likely be done by the Immigration and Social Security Co-Ordination (EU Withdrawal) Bill which has been revived following the Supreme Court’s decision to quash the prorogation of Parliament. The Bill currently contains no safeguards or transitional provisions which would avoid a sudden loss of rights on the day the 2016 Regulations are repealed. It is currently unclear what protection will be put in place for EU nationals (and EEA and Swiss nationals) who have not yet applied for settled status (they have until 31 December 2020 to do so meaning there will be a gap between repeal of free movement law and full subscription to the settled status scheme. The Euro TLR scheme does not plug this gap as it is only for people entering after Brexit). Numerous amendments have been tabled to the Bill attempting to correct this (and other) deficiencies. However it remains to be seen which of them make it in to the Bill (if the Government ever brings it back to Parliament).

Some form of protection, through transitional provisions, will be put in place. It would be nice if the Government told us what legal form that protection will take rather than causing mass panic by making legally inept announcements about ending free movement overnight to the press. However it seems with the current Government that is too much to ask. 

The Government have already made provision for some changes to be made to the 2016 Regulations immediately after Brexit, however these only relate to EEA nationals who commits a criminal offence after Brexit day.  Also some EU asylum law, such as the Dublin Regulation which allows the UK to send asylum seekers back to the first EU country they entered, will become defunct immediately after Brexit. Other than this, very little changes overnight after Brexit. For a more detailed look at what will change immediately, and what will not, when we leave the EU see my post on the Free Movement blog here.

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