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Brexit and Scots Law: Immigration and Citizenship

Document Cited authorities 4 Cited in Related
Vincent
DOI10.3366/elr.2018.0464
Pages132-138
Date01 January 2018
Author
Published date01 January 2018
INTRODUCTION

The effects of Brexit on the entry and residence rights of EU citizens in Scotland look set to be the same as those felt across the rest of the UK: they will be integrated into the UK's national immigration system by some future date, which could depend on individual circumstances, could be the end of whatever transitional period may eventually be agreed, or could be as early as Spring 2019 if the UK “crashes out” of the EU without an agreement. And yet, since the Brexit vote, a groundswell of support has arisen for the idea that Scotland should have a differentiated immigration settlement. This article surveys the institutional limitations on Scotland having separate immigration policies, highlights areas where diverging policies have developed, and considers the prospects for difference in Scotland in the Brexit context. While the prospects for developing separate policies depend largely on the emergence of a genuinely inter-governmental approach at UK Government level, there is also scope for the Scottish Government to take the initiative.

 FREE MOVEMENT RIGHTS AFFECTED BY BREXIT

The EU free movement regime includes rights of residence for longer than three months for economically active EU citizens,1 family rights, the right to equal treatment, and to permanent residence after five years. These rights are – broadly speaking – drawn from the Citizens Directive,2 although other rights are also relevant.3 Both sides of the Brexit talks have repeatedly said that agreement on Free Movement of Persons (“FMOP”) is their priority, but the UK Government and the EU-27 states have very different starting points. As far as possible, the EU wants to protect the rights of EU citizens to live and work in any EU state (including UK citizens resident in EU-27 states, as well as EU-27 citizens resident in the UK),4 and it therefore seeks to maintain the status quo for prior residents. While the UK Government has undertaken to guarantee the rights of EU nationals in the UK, in the expectation that the EU will offer reciprocal treatment for UK nationals in EU-27 states, it also wants to integrate EU citizens into the UK's national immigration system.5 Meanwhile, progress on Brexit talks keeps stalling and, according to Ryan, it is “uncertain” whether an Article 50 agreement will cover rights to remain.6 A transitional arrangement may be achievable, which could give more time for agreement to be reached and, perhaps, an extension of the status quo during that time.

The FMOP regime operates as a quasi-exemption from UK immigration control. EU citizens exercise their free movement rights under EU law and do not have to apply for a visa before travelling to the UK, nor are they required to provide biometric data. Their family reunion rights extend to a slightly broader range of family members, and long-term residents gain other “civic” rights – such as voting rights in local and Scottish Government elections, and access to social rights such as education and healthcare – in line with EU equality principles.

Integrating EU citizens into the UK's immigration regime involves transferring to a very different system. The UK system grants leave to remain based on compliance with detailed immigration rules,7 and a confusing picture...

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