Mishcon de Reya page structure
Site header
Main content section

Anticipated impact of Brexit on Immigration law

Posted on 21 July 2016

Anticipated impact of Brexit on Immigration law

The unprecedented decision of the British people to leave the EU has thus far created great cause for debate. Although at this stage there is no conclusive answer to the questions concerning the impact of Brexit, with Theresa May assuming the role of Prime Minister, we should start to see a clearer immigration policy taking shape. In the meantime however, it is possible to assess potential outcomes based on the current and expected political feeling and business practicality.

For access to the European single market to continue for the UK, we would not expect the EU to allow the UK to be free from the movement of people rules. Tariff-free access to the world's largest trading bloc and the UK's largest export market is too important to lose even to most Brexiteers. It is therefore possible that the UK could stay open to immigration from EEA nationals. Migrants from outside of the EEA would continue to apply for entry to the UK under the points based system. A 'hard' Brexit approach if the UK formally left the EU may require EEA nationals to apply for visas to work in the UK, but this seems a distant possibility based upon current political and economic factors.

In order for the UK to leave the EU, the British Parliament would need to repeal the 1972 European Communities Act and formally trigger Article 50 of the Lisbon Treaty, which requires a minimum two years to leave the EU. The current mood in London suggests this may not happen for some time therefore providing some short term certainty. The UK remains a member of the EU, and EEA nationals should be able to continue to move to the UK without too much difficulty in this exit period. There is a sense of reluctance to potentially worsen the UK's financial position by formally initiating divorce proceedings.

Others argue, instead, that complete separation is inevitable. The position will develop with more certainty over the coming months. However, even at this stage, there are some points that remain clear with regards to immigration.

About 6.6% of the total British workforce is made up of EEA nationals currently living in the UK - approximately three million people. Almost three-quarters of these have been here for five years or more, meaning they qualify for permanent residence. According to comments made by prominent Leave politicians, the others are likely to have their rights “grandfathered” so they too, can stay in the UK.

The message Westminster seems to be sending now is that the UK immigration position of those EEA nationals currently in the UK should be protected as, in addition to being the fair thing to do, any action the British government takes in respect of these European migrants will clearly have an impact on the millions of British citizens living overseas in the EEA.

In addition, the UK remains open for business and the UK domestic Immigration Rules are designed to allow businesses to prosper by having access to the world-wide pool of talent. With the current unemployment rate at just 5% there have never been more people in work in the UK. It does not seem probable that the UK would instigate any unnecessarily restrictive immigration policies that would prevent the functionality of British businesses.

Apart from restrictions on family members of EEA nationals' ability to claim benefits and other possible minor changes to the current rules, we expect that EEA nationals will continue to be able to live and work in the UK, while the UK continues its access to the single market.

Were the UK to decide that it is more important to control immigration that it is to have access to the free market, it seems probable that EEA nationals would continue to have the option of moving to the UK, but would need to apply to do so though the domestic points based system. The most likely category for skilled workers would be Tier 2, which allows employers in the UK to sponsor skilled migrants from outside of the EEA to work for that business in the UK, although there is also a currently inactive Tier 3 category for unskilled migration. These categories could become the main route for EEA nationals to come to the UK to work.

The implications of the Brexit result on UK immigration policy are too early to predict with any certainty. However, with the UK's long history of nurturing business and upholding the principles of free market economics, we remain optimistic for the future landscape of UK immigration law.

For more information please contact Steven Bostock

How can we help you?

How can we help you?

Subscribe: I'd like to keep in touch

If your enquiry is urgent please call +44 20 3321 7000

Crisis Hotline

I'm a client

I'm looking for advice

Something else