Post Brexit Immigration: Leaked Home Office Paper, Border, Immigration and Citizenship System After the UK Leaves the European Union

5th October 2017 by

Proposals contained within the leaked paper are yet to be endorsed by ministers and are subject to negotiations with EU.

Phased Withdrawal:

  • Document says the transformation of the UK’s immigration policy will take place in three stages
    • Initial phase (1): (before Brexit) introduction of an Immigration Bill
    • Second phase (2): implementation period of “at least 2 years”- free movement directive will no longer apply.
    • Final phase (3): tough new rules put in place. Introduction of UK rules to control the type of volume of both temp and permanent migration in the EU. Rules are not yet decided. Brexit will be not the end of EU migration but a more selective approach. Gov will take a view on the economic and social needs of the country when considering EU migration rather than leaving this decision entirely to those wishing to come here, and employers.

Phase 1- Before leave the EU- Bringing EU Migration within a UK Legal Framework

  • Government have committed to introduce to Parliament an Immigration Bill to repeal the current EU derived free movement provisions to enable EU citizens to be brought within a UK immigration regime. Earliest can do this is the date the UK leaves the EU.
  • The European Union (Withdrawal) Bill (also known as The Repeal Bill) will repeal the European Communities Act 1972. This will convert most EU law into UK law as it stands at the moment before we leave the EU. For Immigration, this means that the Immigration (EEA) Regulations 2016, for example, will remain in force, which effectively means that EU citizens’ rights to live and work in the UK will carry on now, until those Regulations are revoked.
  • To revoke the regulations, the government intends to take powers via an Immigration Bill to ‘switch off’ the Regulation and ensure that EU citizens, will in future, require permission to enter and remain in the UK under the 1971 Act. It will bring EU citizens within scope of the UK’s immigration system.
  • Expect to have this legislation in place before the UK leaves the EU so ready to make changes from that date, ‘if deemed appropriate’.

Phase 2- Implementation Period:

  • Those who arrive in the UK post- exit to undertake any lawful activity- (includes right to visit, work, self-employment, study, self-sufficiency.) – Will be an initial unrestricted period of ‘deemed-leave’ for set period (e.g. 3 or 6 months from entry into the UK).
  • Those wishing to stay longer must register with the HO to obtain residence permit for 2 years. The criteria for a residence permit will include basic proof of employment/ self-employment or study status, or self-sufficiency, building on the criteria set out in the EU Free Movement Directive
  • A minimum earnings threshold for workers/self-employed persons. Threshold currently set at £157 per week- envisage that the threshold and the process would be broadly similar to the one used to assess applications for documents proving EU citizen is exercising treaty rights
  • Government still considering an option to allow the highly-skilled to apply to the HO for a residence permit of 3-5 years (would have eligibility requirements of e.g. criminality check & basic proof of activity similar to that required in Free Movement Directive)
  • Following the end of the ‘implementation period’ will be required to meet further rules upon full implementation of system
  • There will be a requirement to register with the Home Office to obtain permission to reside, they will be able to do so from within the UK.

 

Phase 3 (after Implementation Period):

  • Future Immigration Controls: document sets out a range of potential options for new rules
  • The future of immigration regime for EU citizens will not necessarily be the same as the existing one for non-EU nationals.
    • For example, may wish to operate a preferential arrangement as part of any negotiated deal with the EU, either temporarily or permanently.
    • Or may decide that some feature s of the non-EU regime are impractical to apply, e.g. because of higher volumes, different patterns of migration, geography etc.
  • ‘Potential Measures could include:
    • Ensuring preference in the job market is given to resident workers through economic needs test that employers must complete to check whether suitable recruits can be found locally before hiring an EU citizen;
    • Requiring EU citizen to move to jobs already offered by UK employers rather than to job-seek e.g. through a requirement to demonstrate proof of a job offer prior to entering the UK if the purpose is to come to work;
    • Reducing the opportunity for workers to settle long-term in the UK and to bring their dependents, especially at lower skill levels; or
    • Limiting the number of EU citizens able to come to the UK to undertake low-skilled work, for example through a salary threshold, an assessment of the skill-level of the occupation and/or through a direct numerical cap on numbers. Restrictions could be combined with the option of a scheme for temporary or seasonal workers depending on the industry.’
  • Considering whether, and if so, how, the principles of sponsorship could be applied to take account of EU workers in the future.

 

Britain First and British workers prioritised

  • Language in the documents suggests the development of a more UK focused immigration policy
    • g. ‘Put, plainly, this means that, to be considered valuable to the country as a whole, immigration should benefit not just the migrants themselves but also make existing residents better off.’
    • g. ‘We are clear that, wherever possible, UK employers should look to meet their labour needs from resident labour.’
  • Some proposals under consideration will force UK employers to think twice before employing someone from the EU.

 

Passport and Border Controls

  • Document includes proposals to require EU nationals to show their passports when they come to the UK. Other types of ID will not be enough anymore.
  • To facilitate entry, propose to grant all EU citizens ‘deemed’ leave to enter allowing EU citizens to enter without the need to have their passport stamped.
  • Deemed leave could be cancelled by a Border Force officer if EU citizen refused entry because they have a criminal record or considered threat to UK.
  • May wish to impose this requirement as soon as we leave the EU, but will give adequate notice of any change in this respect.

 

Free Movement during phase 2 (implementation period) and biometric identification

  • During the implementation period people who want to reside her for an extended period of time will have to provide proof of citizenship either with a passport or ‘a Home Office biometric immigration document’

 

Permits, fingerprinting- and cost

  • Anyone applying for residence permit for the UK will have to provide certain documents and their fingerprints
  • May introduce the taking of fingerprints of new arrivals who are registering and, as now, will carry out a security check. Aim to ensure that the registration process is straightforward, reasonably-priced and as digital as they can make it.

 

Restricting the rights of EU family members to enter and remain in the UK

  • Contentious issue- particularly for other members of the EU.
  • The HO outlines a much tougher regime while will restrict residency to ‘partners, minor children, and adult dependent relatives…’
  • There is a proposal that ‘Extended family members’ other than durable partners will no longer qualify as family members under new UK law aligning with the current system for non-EU nationals.
  • Documents says ‘there is virtually no limit on the distance of the relationship between the EU citizen and the family member’ in the current system.
  • Proposed to define family members as direct family members only, plus durable partners’
  • Also will not allow non-EU nationals to stay on the basis of so-called EU “derivative rights” where this goes beyond provisions already made in the rules, e.g., the non-EU carer of a British child.

 

Income requirements for some EU nationals

  • No precise details given in the documents, but there is the proposal to introduce an income threshold for some EU citizens before they will be allowed to reside here.
  • Propose to introduce a reasonable, but specific, income threshold for EU citizens to come to the UK as a self-sufficient person to ensure that they have a sufficient income to be able to support themselves.
  • If an EU national living in the UK wants to bring their spouse from outside the EU here, they will have to earn a minimum of £18,600 a year bringing EU nationals in line with the restriction already imposed on Britons.

 

Refusing Entry

  • Paper states the UK intends ‘to strengthen our ability to refuse entry to EU citizens with a criminal record or whom we consider a threat to the UK.’ The vetting process may be aided by an online screening procedure.
    • Propose to introduce requirement for certain travellers to have to have obtained an Electronic Travel Authorisation before they travel (similar to ESTA system in US).
    • EU has existing proposal for similar system called ETIAS, for certain non-EU travellers who do not need a visa to travel to the EU.
    • Will discuss with the EU whether the respective proposal should apply to UK and EU citizens.

 

Other Covered Areas

 EU Case Law

  • For EU citizens arriving in the UK in the future, the government will bring an end to the jurisdiction of the Court of Justice of the EU (CJEU) in the UK. Disputes about immigration will not go to the CJEU but be decided by the UK courts.
  • This means for those who arrive after our exit, cases such as Zambrano, Surinder Singh and Metock will no longer be binding in the UK.

 

EU Citizens already in the UK

  • Although proposal set out in leaked paper focus on arrangements for EU citizens who are not resident in the UK before the specified date, paper does set out:
  • As set out in policy document (published 26.06.2017) gov wants to ensure EU citizens (and their family members) who arrived and became resident before specified date- not earlier than the date triggered article 50- are able to continue to be able to live here as they do now but also enjoy other rights, such as access to healthcare, social security and pensions.
  • They will be eligible to apply for settled status in the UK.
  • Planning to set us an application process before we leave the EU to enable those who wish to do so to get their new status in advance of our exit.
  • Expect there to be a grace period of up to 2 years after we leave during which qualifying EU citizens can apply.
  • Suggest there is no need for EU citizens to seek residence documentation now under current free movement rules in order to secure their status post-exit, unless they intend to apply for citizenship before we leave.

 

Migration Advisory Committee (MAC)

Have commission the independent Migration Advisory Committee (MAC) to undertake a technical study which explores how the economy makes use of, and recruits, including non-traditional modern patterns of work, and the potential impacts of changes in EU migration in the economy.

  • Asked MAC to publish its report by September 2018 for Phase 3 future immigration systems (the MAC not advising on phase 2 implementation period)

 

Sources:

https://www.scribd.com/document/358064862/THE-BORDER-IMMIGRATION-AND-CITIZENSHIP-SYSTEM-AFTER-THE-UK-LEAVES-THE-EUROPEAN-UNION#fullscreen&from_embed <accessed 04.10.2017>

https://www.theguardian.com/uk-news/2017/sep/05/leaked-document-reveals-uk-brexit-plan-to-deter-eu-immigrants <accessed 04.10.2017>

https://www.theguardian.com/uk-news/ng-interactive/2017/sep/05/post-brexit-immigration-10-key-points-from-the-home-office-document <accessed 04.10.2017>

https://www.ft.com/content/558ff194-92f5-11e7-bdfa-eda243196c2c <accessed 04.10.2017>

ILPA Briefing for the House of Commons’ Second Reading of the EU (Withdrawal) Bill on 7 September 2017 (5 September 2017) http://www.ilpa.org.uk/resource/33511/ilpa-briefing-for-the-house-of-commons-second-reading-of-the-eu-withdrawal-bill-on-7-september-2017- <accessed 05.10.2017>

 

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