Beyond Bluish Passports: Uk/Eu Immigration Later On Brexit

Professor Steve Peers, University of Essex

In the lastly few days, in that location has been much debate nearly the Great Britain government’s intention to ‘return’ to bluish British passports after Brexit. It’s unfortunate that in that location direct maintain been faux statements on both sides of the declaration – that the alter inwards passports volition terms extra coin (the contract was due for renewal anyway) together with that the European Union forced the Great Britain to apply the burgundy color (there’s only a non-binding Resolution on this issue).

Some prefer the thought of a alter inwards color due to Brexit, but the number isn’t nearly ‘sneering’ at people who mightiness prefer 1 passport color to another. In fact, aesthetically I prefer my previous Great Britain passport color (which was black, non blue). But a passport should live judged non past times the color of its encompass but past times the content of the rights it confers.

In that light, it’s a skilful minute to review the rules on visits together with long-term immigration to the European Union that volition probable apply to Great Britain citizens after Brexit. This is an update of a previous post from 2014 on this issue, except it should live noted that in that location volition probable live dissever rules on Great Britain citizens who already alive inwards the EU27 states on Brexit Day – on the ground of the withdrawal agreement, as partly agreed before this month. I direct maintain discussed that partial bargain separately together with then I won’t hash out that category of people farther 1 time to a greater extent than here. My focus is on Great Britain citizens who are still inwards the UK on that dot (and who create non also direct maintain the citizenship of an EU27 country).

There are several full general points at the outset. First, it seems probable that a transition period volition live agreed as purpose of the withdrawal understanding (see give-and-take here). This may good hateful that European Union complimentary displace constabulary continues for a curt catamenia longer to apply betwixt the Great Britain together with the European Union after Brexit Day. Those who displace during the transition catamenia volition probable live treated the same as those who moved before Brexit Day, although this has yet to live confirmed.

Secondly, European Union immigration constabulary (by which I hateful the European Union laws to a greater extent than oft than non governing the immigration condition of non-EU citizens) does non apply to all Member States. In particular, the rules relating to short-term visas together with borders (and aspects of irregular migration) deriving originally from the Schengen opened upwards borders understanding don’t apply to the Great Britain or Ireland. They only partly apply to Romania, Bulgaria, Republic of Cyprus together with Republic of Croatia (although those U.S.A. are meant to bring together inwards future) together with direct maintain been extended exterior the EU, to Schengen associates: Norway, Iceland, Principality of Liechtenstein together with Switzerland. The rules relating to longer-term legal migration together with asylum apply to all Member U.S.A. except Republic of Ireland together with Denmark, but non to whatsoever non-EU countries (other than the Dublin rules on which State to apply for asylum in, which apply to the Schengen associates). 

Crucially, this agency that immigration betwixt the Great Britain together with Republic of Ireland after Brexit isn’t straight affected past times whatsoever of the laws discussed inwards this spider web log post. Also European Union complimentary displace constabulary volition silent apply to Great Britain citizens who are theater unit of measurement members of European Union citizens who displace to but about other Member State. 

Thirdly, the next analysis is based on EU constabulary as it currently stands, as it is applied to countries similar the Great Britain post-Brexit: ie, relatively wealthy non-EU countries which create non direct maintain complimentary displace amongst the EU. I’ll betoken where the constabulary is currently beingness revised. It’s possible that but about special post-Brexit bargain on but about or all aspects of immigration, falling curt of complimentary movement, mightiness live agreed betwixt the European Union together with Great Britain after Brexit. While this prospect can’t live discussed inwards detail, since the Great Britain regime has non indicated whether it would fifty-fifty wishing to seek such an understanding together with then there’s no indication of what the content mightiness live (or whether the European Union would concur to it), I’ll hash out this prospect to a greater extent than oft than non inwards a lastly section.

Finally, piece but about mightiness travail to combat that whatsoever novel difficulty for Great Britain citizens moving or travelling to the European Union after Brexit would constitute but about cast of ‘punishment’ past times the EU, this would live profoundly dishonest. The Great Britain regime seeks – as most Leave voters supported – to buy the farm a non-EU province without complimentary displace after Brexit. Ending complimentary displace constabulary necessarily agency that it’s non only harder for European Union citizens to see together with remain inwards the UK, but also the other way around: the clue is inwards the words ‘free movement’. It should non live as good much to promise that people direct maintain the integrity to bring the responsibleness for the consequences of the resultant which they advocated.

Visas together with edge controls

‘Visas’ are an number for both longer-term immigration together with short-term travel; hither I’ll hash out short-term travel, which (like edge controls) has been fully harmonised past times the European Union as purpose of the Schengen process. While it’s sometimes argued that Great Britain citizens volition confront short-term visa requirements to see the European Union after Brexit, the electrical flow constabulary of the European Union (the visa listing Regulation) suggests that they volition non (as I hash out inwards to a greater extent than especial here). That’s because it’s European Union policy non to apply visa requirements to fairly wealthy non-EU countries, or to most neighbouring European Union states, provided that the countries concerned reciprocate past times non imposing visa requirements on European Union citizens.

However, the European Union is planning to ready an electronic go advance authorization system (ETIAS). I previously discussed this thought here; inwards the meantime, the legislation to institute ETIAS has been proposed past times the Commission, agreed past times the Council together with is right away under negotiation amongst the European Parliament. The text as agreed past times the Council (and the most recent EP/Council negotiation text) would apply the ETIAS to all non-EU countries without complimentary movement, hence including the UK. Some inwards the Great Britain would similar to create ready a this MP – that null volition alter as regards longer edge queues are hence misstating the legal position. The comparing amongst Switzerland past times the same MP is fifty-fifty to a greater extent than bizarre, given that Switzerland has signed upwards non only to complimentary displace but also to the Schengen system.

UK citizens volition also live dependent area to the planned European Union entry-exit system, on the ground of newly adopted legislation, 1 time that organization is laid up.  Again, that system, which volition bring records of all those entering together with leaving the EU, volition apply to all non-EU countries without a complimentary displace agreement.  Similarly, Great Britain citizens who direct maintain a tape of criminal offences or immigration constabulary breaches volition live dependent area to entry bans for the entire European Union enforced past times agency of the Schengen Information System (which is beingness revised), for the same reasons.  (The Great Britain currently participates inwards other aspects of that System, as regards exchanges of criminal constabulary together with policing information, but it remains to live seen if this remains the instance after Brexit: run across farther give-and-take here).

Long-term migration

Of course of pedagogy in that location volition silent live but about Great Britain citizens moving to European Union countries on a long-term ground after Brexit. The dot is that they (like European Union citizens moving inwards the other direction) volition no longer direct maintain the correct to create then on the real liberal terms start out inwards complimentary displace law, but instead volition live moving on the ground of to a greater extent than restrictive rules start out inwards national law. On the European Union side, those national laws direct maintain been partly harmonised past times European Union law. (Retirement of Great Britain citizens inwards the European Union volition live alone dependent area to the national laws of Member States).

First of all, as regards moving for work, in that location is European Union legislation on highly-skilled non-EU migrants (the ‘Blue Card’ Directive, currently beingness revised as discussed here); the single permit Directive, which sets out mutual rules for equal handling of non-EU migrants allowed to work; the Directive on seasonal workers (discussed here); together with the Directive on intra-corporate transferees (discussed here). To but about extent, this legislation sets only minimum standards or allows Member U.S.A. to ready parallel national regimes.  

As regards students together with researchers, a revised European Union constabulary (discussed here) volition apply from 2018 (so before Brexit). Great Britain students volition lose the correct to equal handling as regards tuition fees together with admission inwards European Union universities that they currently taste as European Union citizens (unless otherwise agreed). However, according to ECJ instance constabulary (discussed here) non-EU students must live admitted if the (more stringent) standards inwards the electrical flow version of the European Union legislation on non-EU students are met. (There’s no ground to retrieve that instance constabulary won’t apply to the newer version of the law).

Family reunion for Great Britain citizens who displace to the European Union volition also live harder after Brexit, whether their theater unit of measurement are Great Britain citizens or citizens of other non-EU countries, on the ground of the standards inwards the EU’s family reunion Directive. While Member U.S.A. tin laid higher standards than the Directive, they oft create non create so.

Finally, what nearly asylum? European Union citizens are all but banned from applying for asylum inwards other Member U.S.A. (the exception is discussed here), but Great Britain citizens volition no longer live European Union citizens after Brexit. Like the UN Refugee Convention, European Union refugee constabulary (which is currently beingness revised: run across give-and-take here) defines a refugee as somebody who is exterior their province of rootage due to a genuine fearfulness of persecution past times ground of race, religion, nationality, political view or especial social group. Persecution is defined as entailing but about cast of violence or other severe restriction on human rights. As things stand, despite obnoxious headlines from the UK’s most toxic newspapers, those calling for murder of Remain supporters are a tiny extreme fringe together with in that location is no sign that the Great Britain regime is unable or unwilling to answer to whatsoever farther violence which they mightiness commit. Nor is in that location whatsoever displace to lock upwards or ban the complimentary spoken language of Remain supporters. Let’s promise this e'er remains the case.

Irregular migration

Finally, it should live noted that Great Britain citizens who breach the immigration constabulary of the European Union and/or its Member U.S.A. – which would manifestly live to a greater extent than probable after Brexit as less liberal rules would apply – would live dependent area to the EU’s Returns Directive, which governs many aspects of the procedure of removing non-EU citizens who are non legally resident. This Directive has been dependent area to a relatively liberal interpretation past times the ECJ, as I hash out here), but nonetheless it is rather to a greater extent than restrictive than the rules on expulsion or detention as start out inwards European Union complimentary displace law.

Special deal?

Could the European Union together with Great Britain sign as special bargain on immigration after Brexit? (I am leaving aside the probable transition catamenia inwards the withdrawal agreement). As regards visas together with borders, this would probable live an understanding amongst the entire EU, since the grade of harmonisation inwards this champaign agency that the ECJ would probable dominion that the European Union has exclusive competence. In practice, the European Union has been willing to sign treaties amongst non-EU countries on links amongst the edge agency Frontex, together with on visa waiver together with readmission treaties. Would the European Union live willing to buy the farm further, together with (for instance) concur reciprocal non-application of the electronic go authorization rules on each side?

On legal migration, the European Union has harmonised the constabulary less together with the Treaties reserve a national competence regarding the numbers of non-EU citizens admitted to work. Moreover, European Union legislation inwards this champaign ordinarily expressly states that Member U.S.A. tin come inwards into bilateral treaties amongst non-EU countries.  So whatsoever understanding would either live ‘mixed’ (needing ratification past times the European Union together with its Member States), or purely bilateral betwixt the Great Britain together with private Member States. In but about cases the European Union has been willing to sign an association understanding amongst non-EU countries which contains limited rules on immigration.

More broadly, the number of whether the Great Britain together with European Union should sign a special immigration bargain after Brexit may cast purpose of the broader talks, amongst but about inwards the Great Britain willing to offering a merchandise of limited preferential labour marketplace access inwards render for bigger access to the European Union services market, for instance. Others mightiness live unwilling on regulation to offering whatsoever commitment regarding immigration. One component that shouldn’t live overlooked is that such a bargain would live reciprocal – preserving every bit but about possibility of facilitated immigration for Great Britain citizens to the EU, non only the other way around.

*This spider web log post service was supported past times an ESRC priority grant on "Brexit together with UK/EU immigration policy"

Barnard & Peers: chapter 27, chapter 26

JHA4: chapter I:3, I:4, I:5, I:6, I:7

Photo credit: Telegraph

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