Recently the government published a White Paper on Brexit which is supposed to set out proposals for the future legislation before a Bill is formally laid before Parliament. The White Paper only sets out the UK’s current negotiating position. Whether the position is realistic or not, is another matter.
When the UK leaves the EU, all EU nationals and their family members would be subject to the full rigours of the Immigration Act 1971. This would mean that they would require leave, would not have it and would therefore be committing a criminal offence by remaining.
END TO FREE MOVEMENT
The White Paper specifically states that free movement of persons, one of the fundamental pillars of the EU constitution and the Single Market, is to end. It specifically says:
“We will design our immigration system to ensure that we are able to control the numbers of people who come here from the EU. In future, therefore, the Free Movement Directive will no longer apply and the migration of EU nationals will be subject to UK law.”
The default position on the UK leaving the EU is that this and any other EU legislation or Treaty would no longer apply. Many of us hoped that the UK might leave the EU but remain part of the EEA, which would mean that particular Directive would apply. However, this seems to have been ruled out in the White Paper, suggesting a “Hard Brexit”.
Therefore, the status of EEA nationals and their family members in the UK will need specific legislation.
EU RESIDENTS OF THE UK AND UK RESIDENTS OF THE EU
There is a specific section of the White Paper on the status of the above residents. Unfortunately, there is still no clarity at all on what offer the UK government has made to the EU on the status of residents.
The UK has been hardening its position on the current status of EU nationals and family members. The latest guidance, European Economic Area (EEA) and Swiss nationals: free movement rights, published by the Home Office on 1st February 2017, adopts the position that an EU national who is physically present in the UK but who does not have a right of residence, is in breach of immigration laws.
In the latest regulations, the Immigration (European Economic Area) Regulations 2016, the Home Office has adopted a new power to curtail the right of entry and physical presence in the UK of EU nationals. Accompanying new guidance on the misuse of rights and verification of EEA rights of residence, includes a whole section on EEA nationals “who may be engaging in conduct intended to circumvent the requirement to be a qualified person.“
WHAT IS THE NEW IMMIGRATION SYSTEM?
In short, no one, including the government, knows yet.
An evidence gathering process will be undertaken, apparently, in which central government will assess and decide what the UK economy needs and where.
WHAT NEXT?
Article 50 is likely to be triggered during March 2017 which would mean that the UK will leave the EU by March 2019.
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