Last week the UK government announced that current freedom of movement rules “will end on 31 October when the UK leaves the EU”, but recent reports suggest that the risk of legal challenges make an abrupt end to freedom of movement next month unlikely.
A spokesperson for the Home Office said: “Freedom of movement as it currently stands will end on 31 October when the UK leaves the EU, and after Brexit the Government will introduce a new, fairer immigration system that prioritises skills and what people can contribute to the UK, rather than where they came from.”
So far so much uncertainty for EU nationals who have already, or plan to, settle in the UK to live and work.
As it stands, free movement of EU citizens will not end automatically if there is a no-deal Brexit on 31 October as the EU law will have to be replaced, but they must still apply for settled status with the Home Office in order to remain in the country longer-term, with 31 December 2020 the deadline to apply.
In a blog post for TechUK published last week, Vinous Ali, associate director for policy at the technology industry trade body wrote: “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.”
There is legislation currently working its way through Parliament to end freedom of movement by repealing Section 7 of the Immigration Act 1988, in the form of the Immigration and Social Security Coordination (EU Withdrawal) Bill, but with the government in a state of flux, it is unlikely to get passed before 31 October.
“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,” explained Ali. “Therefore, it is highly likely that this announcement may result in policy tweaks to freedom of movement rather than a straightforward cut off as reports are currently suggesting.”
Naomi Hanrahan-Soar, managing associate at law firm Lewis Silkin told Techworld: “It would be unlawful to change the immigration law that dramatically by secondary legislation and there isn’t practically enough time to get new primary legislation through at this stage with Parliament expected to be prorogued next week until 14 October.”
“Proper time and consideration should be given to a new immigration system and if that means extending free movement a little longer, they should not be averse to doing that.”
What is under threat?
What is at threat here is that any EU, EEA and Swiss citizens that have settled in the UK under previous freedom of movement rules will have to apply for settled status in order to live and work in the UK after Brexit.
The Home Office announced on 15 August that over 1 million people have been granted settled or pre-settled status under the EU Settlement Scheme, but many are only being given temporary status for five years. There are an estimated 3.3 million UK-based EU citizens, who previously did not have to register their presence in the UK.
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