What Would An Extension Of Article 50 Mean For Immigration?


European Union, Migration Trends, Policy, Visas/Work Permits

Summary:

  • Freedom of movement to the UK would continue during any extension period. EU net migration has averaged 80,000 per year since the Referendum.
  • The extension of Article 50 may substitute for the transition period. However, as Martin Howe QC has argued, unlike during the transition period (during which free movement would also continue), the UK would retain a ‘vote and voice’ in the EU institutions.
  • The process of registering more than three million EU citizens would proceed.
  • The agreement regarding post-Brexit visa-free travel for visits between the EU and UK would likely remain in place.
  • The EEA family permit – named by the authorities as the ‘route of choice’ for those seeking to ‘frustrate’ immigration control – would remain in place.
  • The UK would continue to participate in the Dublin III arrangements, under which more asylum seekers are currently transferred to the UK from other EU countries than are removed to other EU countries from the UK.
  • The potential for secondary movement of refugees and their family members from other parts of the EU to the UK will be affected by the length of any extension.

On 21 March, the EU agreed to give the Prime Minister an unconditional extension of Article 50 until 12 April. In the event that her deal is approved by MPs, Brussels will give the UK until May 22 to pass the legislation that would implement Brexit. However, if the deal is not agreed by the April deadline, the UK will be forced to choose between a no deal Brexit or agreeing to hold European elections in return for a longer extension to the Article 50 process.

As to the length of any ‘longer period’, a number of sources have indicated a potential delay of between nine months and a year. Others have suggested a potential 21-month delay. Simon Coveney, the Irish foreign minister, said on 14 March that Britain needed a “long reflection period” lasting “21 months, to the end of 2020, or whatever the period would be”. So a ‘longer’ period might mean the UK leaving the EU at any point between the end of 2019 to the end of 2020 (or possibly longer).

What would be the implications for immigration of a longer extension period?

During the extension period, the UK would remain in the EU so would be bound to continue free movement by EU citizens to the UK (as now). EU net migration has averaged about 80,000 per year since the Referendum. Subject to approval, the Immigration Bill now proceeding through the House of Commons would pass into law (possibly during April or early May). This would end freedom of movement by EU citizens to the UK when the UK departed the EU (subject to any subsequently agreed transition period). If any transition period of 21-months were agreed subsequent to this, free movement could continue until late 2022 – after the date of the next General Election.

The government recently confirmed that the EU settlement scheme, aimed at giving more than three million EU citizens in the UK the chance to apply for settled or pre-settled status in order to remain permanently, will come into full operation on Saturday, 30 March 2019. This seems unlikely to change even should there be an extension to the Article 50 process. EU citizens would likely be able to continue registering their intention to remain permanently during any extension period.

The EU and UK have both agreed that visa-free travel for short-term visits should continue in both directions in the event of Brexit (whether there is a deal or not). Presumably this would remain in place during the extension and would come into effect upon the UK’s departure from the EU.

The EEA family permit currently allows the right to remain permanently to non-EEA close and extended family members of EEA citizens who are residing in the UK. About 24,000 of these permits are issued each year, although 36,500 were issued in 2018 (a 35% increase on the year before). The Home Office has identified the EEA family permit as the ‘route of choice’ for those seeking to frustrate immigration checks, while the former chief inspector of borders has said they are a significant threat to border control. As the UK would continue to be in the EU, the EEA family permit would remain in place during any extension. The Metock route (which allows non-EU nationals who are in the UK illegally to remain if they form a genuine relationship with an EU citizen) would also continue to operate, as would the Surinder Singh route (which allows non-EEA spouses to apply for an EEA family permit if they have lived in another EEA country with an eligible family member who’s a British citizen).

The UK has opted into some legal instruments in the Common European Asylum System (CEAS), notably the first versions of the Asylum Procedures, Qualifications and Reception Conditions directives and the Dublin III Regulation, the effectiveness of which has declined in recent years from the UK perspective . The inflow of asylum seekers to UK under the Dublin Regulations in 2018 was nearly six times the outflow, according to February 2019 Home Office statistics. Such instruments would continue to apply during any extension, as would the jurisdiction of the ECJ over asylum matters.

Since the UK has already opted out of other aspects of the CEAS, it seems at least possible that the UK would retain the ability to opt out of future measures that are agreed during any extension period. Meanwhile, the extension of Article 50 would not automatically or directly affect bilateral arrangements with France over juxtaposed controls at Calais (ie the Jan. 2018 Sandhurst Treaty).

Another consideration in the extension of Article 50 is the potential impact of secondary movement to the UK by any eventual share of the 1.4 million non-EU people who were granted international protection in other parts of the EU between 2012 and 2016.  Such recipients of international protection have the right to be joined in the EU by spouses and other family. The OECD has estimated that (for example) the average multiplier in terms of family members who subsequently joined Syrian refugees arriving in the period 2012-15 was 0.5 (International Migration Outlook, p.155). Another source (a German government report quoted by Bild magazine in 2015 – and reported by The Guardian here) suggested that each person granted protection could be followed by between four and eight family members. Those granted protection, and their family members, would gain the right to move to other parts of the EU within two to eight years of being granted protection. Someone granted asylum who has lived in Germany for six to eight years can apply for citizenship if they fulfill a number of conditions, while the time limit in Italy is five years and in Sweden it is four, according to the European Union Democracy Observatory.

The largest cohort of refugees arrived the EU in 2015 (a record 1.3 million people sought asylum in Europe in 2015, according to Pew Research) so the length of any extension will affect the potential for onward movement to the UK. Also significant will be the various push and pull factors at the time. Relative economic strength, the size of respective migrant communities in the UK, our flexible labour market, the English language and the availability of jobs would all play a role in determining our attractiveness vis-à-vis alternative EU destinations. In 2018, the UK remained Europe’s second most attractive country for the global workforce (ahead of Spain, France and Italy). It has been reported that Germany is keen to fill its labour shortage of 1.2 million vacancies with the help of refugees who arrived in 2015, but has had difficulties as many did not possess good German-language skills. Such issues may affect onward movement to the UK.

18th March 2019

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