The Government decided to start the week by creating confusion and panic amongst individuals and employers alike by sort of announcing that Freedom of Movement would end on 31 October 2019 as Britain leaves the EU. The devil, as always, is in the detail and unfortunately there is no detail on this one. So, let us take a look at what we do know.
Where did the announcement come from?
Initial reports that the new Home Secretary was planning on ending Freedom of Movement on 31 October 2019 if the UK left the EU with No Deal appeared in the Sunday papers.
On Monday, Home Office and Downing Street spokespeople doubled down on those reports giving statements that "Freedom of movement as it currently stands will end on 31 October when the UK leaves the EU” adding that "tougher criminality rules" would be introduced at the border.
No further details were made available, however, leaving many questions unanswered.
What has changed?
This announcement would present a change to the previous administration’s approach. The Home Secretary’s predecessor, Sajid Javid (now Chancellor) made it clear that it would “take time” to implement a new system and in a January policy paper made clear the intention not to enforce immigration checks on EU citizens until December 2020 to allow for EU citizens to apply and be granted settled or pre-settled status.
The big question: is this possible?
As things stand Parliament has legislated for Freedom of Movement to continue after the UK leaves the EU, this was done in the Withdrawal Act which transposed EU law onto the UK statute book to ensure a smooth transition.
While there is a legislative vehicle currently in Parliament (the Immigration and Social Security Coordination (EU Withdrawal) Bill) that would end Freedom of Movement by repealing Section 7 of the Immigration Act 1988 that has been stalled for some time. Even if the Government resurrected the Bill, which is due for its Third Reading in the House of Commons, it is unlikely that it would pass all the relevant stages before the 31 October 2019. In short, primary legislation is a no-go.
Reports have suggested that the Home Secretary is looking at invoking Henry VIII powers in order to get around this but, as legal and political commentators have pointed out, that is likely to be fraught with difficulty and subject to legal challenge.
Therefore, it is highly likely to that this announcement may result in policy tweaks to Freedom of Movement rather than a straightforward cut off as reports are currently suggesting.
What could these policy tweaks look like?
The previous Prime Minister had set out No Deal mitigations for EU citizens coming to the UK the day after No Deal. That essentially would have seen EU, EEA and Swiss citizens continue to be able to travel to the UK as they do now with an additional requirement to apply for European Temporary Leave to Remain if they were intending on staying for longer than 3 months. This was due to take those individuals up to the point when a new immigration system would be in place that they could then apply to transfer across to.
The new administration could tweak this package in a number of ways. For example, by requiring EU, EEA and Swiss citizens to apply ahead of arrival or by reducing the length of time the ETLR is valid for.
This would create additional burdens for the Home Office as well as individuals but could be do-able.
This doesn’t address the issue of EU citizens already in the UK. The UK’s Settled Status Scheme has been successful with 1m already going through the process. However, that does leave approximately 2m EU citizens who have yet to register. If the UK intends on enforcing immigration rules immediately after the 31 October, this leaves ‘unregistered’ EU citizens and employers in a precarious position. As Joe Owen from the IfG put it – “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.”
How the Home Office intend to resolve that issue is as yet to be revealed. techUK has made its concerns about these reports known and will be forceful in pushing back on any changes to the current mitigations given how close we now are to exit-day. The confusion and uncertainty caused by this announcement is unhelpful and helps no one prepare for a smooth No Deal exit.