Post-Brexit Immigration


The Conservative Party annual conference revealed Prime Minister Theresa May dancing to Abba and also – less exciting but probably more important in the long run – her and Home Secretary’s Sajid Javid’s ideas and proposals about European immigration after Brexit.

As we have often explained and discussed, the current regime about immigration from Europe is a very liberal one. Under principles of European free movement law EEA nationals and their family members (of whatever nationality) have powerful rights to come to the UK, work here and live here long-term. Under further principles of “derivative rights” developed by the Court of Justice of the European Union (the supreme court for European law) another, different, cohort of non-EEA nationals also have rights – not as strong but nonetheless significant.

When Brexit has come and gone (on 30 March 2019) there will be a transition period, which will last until 31 December 2020, during which current immigration rights are likely to be preserved. But on 1 January 2021 we will (on current information) wake up to the completely post-Brexit world, and the general expectation about this is that EEA nationals and their family members will lose the special rights they have at the moment.

In their speeches to the conference and in other fringe meetings Mrs May and Mr Javid confirmed that this will indeed be the case. They said that, after Brexit, EEA nationals and their family members will be treated the same as everybody else.

Mr Javid somewhat broadened the subject and indicated that there would be yet stricter requirements for non-EEA immigration. (A potentially uncomfortable subject for him because his Pakistani forebears came to the UK under a relatively liberal regime, ie previous versions of the UK Immigration Rules.)

However, undeterred by this, one of the things that Mr Javid talked about was the immigration English language requirements; they are not tough enough, he says. Good English is a powerful tool for social integration. Which serves to remind us of one the basic legal facts about European immigration: there are currently no English language requirements for Europeans and family members, even those who apply for permanent residence. It is not until they apply for British citizenship that they encounter any English language requirement.

Inevitably this is going to change; EEA nationals and their family members applying for UK visas will become subject to English language requirements – as is the case for the large majority of non-EEA visa applicants, in either work or family categories.

Mrs May and Mr Javid talked particularly about unskilled European immigration. Under the present system EEA nationals and family members have the right to come to the UK and, as we said, carry out work. But work (like so many other things in European law) is very loosely defined. Self-employment and employment, of any type, are permitted – however skilled or unskilled.

Not surprisingly, historically, those who were unable to secure work in their own country came to the UK to find work, in many cases unskilled work. These migrants constituted a large pool of workers which undoubtedly made life easier for employers who needed to recruit staff. According to well-established legend, these migrants were willing to do jobs that the British did not want to do.

But this is going to have to change. The immigration scheme for Europeans after Brexit is going to favour skilled workers, and unskilled workers may not be able to qualify for work visas. So the UK will somehow have to produce more of its own unskilled workers.

These politicians’ statements and speeches do not, of course, create new law; a new Bill and Act will have to go through Parliament to establish a detailed legal regime. And the legal specialist might come up with a few interesting questions and issues: what will be the differences between the new scheme and the current Tier 2 visa scheme which, by its very nature, favours and engenders skilled immigration? If it is not going to be different or very different then why not just subsume European immigration into the Tier 2 scheme and just increase the numerical limit on Tier 2 visas (which is currently under some pressure in any case)?

And there is also the issue of dependants/family members. At present the European definition is much broader than the British definition. Under the UK immigration rules a dependant is (with minor exception) a partner or minor child. The European definition (family members and extended family members) extends far wider than this. It seems a fair guess that this liberal scheme will be reduced, possibly to the same scheme as for the UK immigration rules.

As details emerge we will keep our readers informed. But it is safe to take as a guiding principle that European immigration is likely to come sharply into line with immigration under the British rules.

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