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BREXIT – Where are we now ?

By Dominic Magne

BREXIT was mandated on the promise to: -

• Take Back Control
• Based upon a malaise on Immigration.

I shall provide a brief summary on:-

• Control of clandestine Immigration post BREXIT
• EU Citizens resident in the UK before Withdrawal
• The Immigration Rules since.

Clandestine Entry

Pre Brexit

Control of clandestine entry from Europe was regulated prior to BREXIT through the Dublin convention.

A Readmission agreement between EU member states that the EU country of first arrival is responsible will readmit an individual who has made a refugee claim elsewhere in the EU

As UK was on the north western edge of Europe surrounded by sea, the expectation was for a significant amount of returns from the UK back to the EU. This never happened:

Only a few hundred were returned a year whilst the total number of applicants varied from 26,000 to 35,000 a year.

So the Dublin mechanism was ineffective for the UK as a means for seeking re admission of clandestine migrants to Europe.

Post Brexit

What has changed is the method of clandestine entry. The number of small boat crossings has grown from a few hundred in 2018 to over 45,000 in 2022.

The Government’s Response

2022 Nationality Borders and Immigration Act
2023 Illegal Immigration Act

• Obliges the Secretary of State to make arrangements for removal of those who arrive without permission having transited via another country
• Whilst declaring inadmissible asylum claims
• And derogates explicitly from the ECHR.

It is a readmission policy. Without the agreement of readmitting countries. So BREXIT has not changed the underlying challenge, but has replaced a weak mechanism with an inoperative one and engendered a more perilous crossing without deterrent effect.

 EUSS Scheme – The protection of EU citizens present in the UK prior to BREXIT.

Under the Withdrawal Agreement EU citizens present in the United Kingdom prior to the 31st December 2020 would have their rights protected provided they made an application before July of the following year under the Immigration Rules.

The relevant Appendices to the Immigration Rules are Appendix EU and Appendix EUFP. The focus of these two appendices was to define eligibility for inclusion in the protection .

And those eligible were:

All EU citizens resident in the UK before the 31st December 2020 and their family members.

Under Appendix EU

The definition of “ relevant EA Citizen “ under this appendix is 731 words. The criteria for their inclusion under Appendix EU is 152 pages of A4 supplemented by Guidance which is 238 pages long and which has been amended 51 times since initial publication in January 2018.

So far it has worked comparatively well but of note: -

At the time of BREXIT official estimates were of 3 to 3.5 million EU citizens resident in the UK. The EU Settlement Scheme has received over 7 million applications.

A two stage process of five years permission to remain followed by settlement has been ruled unlawful and there are plans for an automatic transition to settlement.

It is a virtual immigration status which relies upon the individual updating their passport details as time passes , so there remains a vulnerability that applicants and their children may lose evidence of their status as happened to the Windrush generation. Neither do we know how Carriers will act when faced with passengers whose new passports do not reflect the original details enrolled before the Home office. The scheme operated well, but it is still  potentially 7 million individuals with a virtual immigration status who have an ongoing duty to maintain their records.

All new arrivals are under the same Immigration Rules

Family life

Family migration has always been at the discretion of the Secretary of State as set out in the Immigration rules. EU nationals can no longer rely on a right of family reunion, but must meet the requirements of Appendix FM to the Immigration rules

Economic Migration

Since 2008 most commercial migration to the United Kingdom has been predicated upon a sponsorship from a UK organisation approved by the Home Office and would only permit occupations of degree level or higher to be filled by overseas workers.

Since BREXIT the list of occupations suitable for sponsorship has grown from c 97 to 225 whilst the skilled level itself has been substantially reduced from a minimum Degree level to “ Rail Ticket Assistants” . There were c267, 000 grants of Skilled Workers visas to main applicants in the year ending September 2022, as opposed to the net migration statistics of 212,000 for 2019 . Changes regarding the rules concerning employed migrants exist to meet domestic labour shortages. They do not facilitate international trade.

The current reality

By way of comparison, the French equivalent to the UK Immigration Rules is the “ Code de l'entrée et du séjour des étrangers et du droit d'asile. » In 2023 it was subject to 7 amending pieces of legislation and runs to some 71 pages. Pertaining to the UK Immigration Rules to date in 2023 there have been 11 versions, carrying approximately 302 pages of paragraphs of insertions and deletions over a document in the region of 1280 pages long. But this is not BREXIT. – Most of the last ten years have been similar.


BREXIT has exacerbated the difficulties the British government has in controlling irregular migration. – whilst ending free movement of goods has resulted in a switch to a more perilous method of clandestine entry through the use of small boats.

BREXIT has made it harder to meet labour shortages but made it substantially easier for skilled youth outside Europe to come to the UK.

That the UK Government has for decades been unable to manage migration has lead to an increasingly sclerotic administration of Immigration. This is the overarching trend.

Most EU citizens resident in the UK have had their rights secured quite seamlessly, but there remains the possibility of future administrative debacle.

21st November 2023

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Tel: 0208 399 3939

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