What would a Brexit mean for UK Immigration Law and Policy?

Legal Background

The concept of transnational citizenship underpins the EU (Art. 9 of the Treaty on European Union), and rights of free movement stem from transnational citizenship.  The Immigration Act 1988 was introduced to ensure that Europeans with rights of free movement were not subject to UK immigration rules.

Scenario 1: Pure Brexit

A pure Brexit would end free movement rights between the UK and the EU.  EU citizens and their family members would be subject to immigration control in the UK.

The UK would have to decide what to do about EU nationals and their family members already living in the UK.  The scope of such a project is unknowable because there is no reliable data on how many EU nationals are living in the UK – their passports are not stamped on entry; they are not required to obtain national insurance numbers; and they are not required to obtain documentation of their right to live in the UK as EU nationals (although many do for purposes of facilitating prospective employers’ right to work checks, or to support other types of citizenship and immigration applications). 

The government has not suggested how it would deal with the revocation of free movement rights of EU nationals already living in the UK.  They might create new immigration categories under the Immigration Rules to bring EU nationals and their family members under immigration control.  EU nationals and their family members could then apply to use these new routes.  It is likely that such individuals would have to support their applications with any documentation of their EU rights that they have obtained and/or evidence that they have been exercising EU treaty rights in the UK. 

Alternatively, the government might choose to allow EU nationals to “switch” into analogous immigration routes which already exist under the Immigration Rules.  EU nationals might be able to apply to the Tier 2 route for sponsored skilled workers or the domestic family member routes without having to leave the UK.  EU nationals with rights of permanent residence might also be eligible to apply for indefinite leave to remain, which is similar to permanent residence but is granted under the Immigration Rules.  Both the Tier 2 route and the family route are extremely complex.  Each is based on an intricate combination of Immigration Rules, appendices to the Rules, and policy guidance.  It is possible that these routes would not be able to sustain the increase in the number of applications that would result from a Brexit scenario where the government does not create particular immigration categories for EU nationals.  Processing of applications under these routes could grind to a near halt if the system is not overhauled to accommodate the potential flood of applicants. 

Any such ability to switch into categories under the Immigration Rules, whether new or existing, are likely to be transitional arrangements which will only be available for a certain amount of time and only available to EU nationals who are already living and working in the UK.  The government might also choose to differentiate between those EU nationals who have obtained documentation of their EU rights and those who have not, only allowing those with documentation to switch easily into categories under the Immigration Rules.  It is possible that EU nationals living in the UK without documentation would be forced to obtain documentation, showing that they have been exercising treaty rights in the UK, before being able to switch.  Otherwise, after a certain transitional period, the UK could consider them to be in the UK unlawfully.

The government has not announced plans for the resources that would be required to amend the Immigration Rules, process EU nationals’ applications and issue documentation.  The government is likely to pass these costs on to the applicants wherever possible.

Scenario 2: The UK Negotiates an Agreement with the EU

Under this scenario, the UK and the EU would retain freedom of movement, the UK would retain access to the single market and the UK would pay into the EU budget.  The UK would have a relationship with the EU similar to that of Norway or Iceland.  This Brexit scenario would result in very little change in practical terms.

The UK could negotiate an association agreement with the EU.  EU citizens would still benefit from rights of free movement in the UK, and vice versa.  EU citizens would not have to apply to new or existing categories under the Immigration Rules.  Instead, the UK would develop domestic legislation similar to the current legislation which lifts EU nationals out of the system of immigration control.  The new legislation would be based on the agreement between the UK and the EU, rather than on EU law.

Scenario 3:  The UK Negotiates Agreements with Particular EU Countries

Another possibility is that the UK would negotiate agreements with certain EU countries, but not with the EU as a whole.  Under this scenario, nationals of the countries with which the UK negotiates agreements would benefit from rights of free movement, and UK nationals would also benefit from rights of free movement in those countries.  The UK would develop legislation to keep nationals of the countries with which it negotiated agreements free from immigration control. 

Nationals from other EU countries could be afforded time-limited opportunities to apply under new or existing Immigration Rules, as described under Scenario 1 above.  If the UK negotiates agreements with several EU countries, it is possible that the government would require nationals of other EU countries to leave the UK or be considered to be in the UK unlawfully.  This could potentially cause a significant level of socio-economic disruption.

Effects on the UK Economy of Potential Changes to Immigration Law and Policy

The effects on laws, international agreements, regulations and rules relating to UK migration would differ under each scenario.  However any Brexit scenario involves a degree of uncertainty, and this uncertainty would have a larger effect on the UK economy than changes to migration policies.

Migration policy changes that incentivise EU nationals to leave the UK would leave gaps in the UK labour market and so affect the economy.  EU nationals currently fill both skilled and unskilled roles in the UK labour market. 

Under Brexit scenarios where EU nationals are afforded the opportunity to regularise their status under the Immigration Rules, workers might choose to leave rather than pay ever-increasing visa fees.  A sponsored skilled worker now incurs costs and fees totalling at least £8,452 for a Tier 2 (General) visa and dependant visas for 2 family members covering 5 years in the UK.  Employers would be likely to incur significant costs to support immigration application processes, for example to obtain and use a licence to sponsor skilled workers. 

Industries that rely on migrant workers would be most affected by a Brexit.  The manufacturing and retail and hospitality industries would suffer, with EU nationals making up 10.4 percent and 7.7 percent of their workforces respectively.  Transport and finance could also be significantly affected because of the significant proportions of EU nationals making up those workforces. 

Jurisdictions: 

Partner, Lewis Silkin LLP