How will the UK immigration system cope with no deal Brexit?

Thursday 22 August 2019

This article was written by Patrick Lewis of the Garden Court Chambers Immigration Team and Anne Morris of Davidson Morris.

It was originally published on The Bar Council's website

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UK immigration reform is imminent. The Government's 2018 White Paper proposals for a new immigration system appear to be here to stay and a no deal Brexit looks more likely than ever. 

The pressure is on the Home Office to deliver the biggest shake-up in our immigration regime since joining the EU within an eye-watering time frame.   

While the leaked Yellowhammer report revealed the extent of Whitehall's no deal preparations, there is little to suggest this is being matched within the frontline institutions responsible for administering UK immigration, borders and citizenship. 

Implementing Brexit, in immigration terms, is complex and resource-intensive, both for the Home Office and the immigration courts and tribunals. Implementing a no deal Brexit, given the fast-approaching deadline, will be a mammoth undertaking for an infrastructure that demonstrably struggles under the current status quo.  

An expanding remit 

EU free movement would have continued during the transition period until 31st December 2020 under the agreement negotiated by Theresa May, but the new Home Secretary, Priti Patel, has stated that under a no deal Brexit, free movement would come to an end on 31st October 2019.  

It is difficult to see how she proposes to achieve this. The Immigration and Social Security Coordination (EU Withdrawal) Bill, which would end free movement, has passed Committee stage in the House of Commons, but has not yet gone to Report stage. 

Given the limited parliamentary time left before 31st October (with Parliament in recess until 4th September, and the conference season recess beginning on 13th September), it appears unlikely that the Bill will pass the Commons and Lords and receive Royal Assent within this timeframe. 

Regardless of Brexit terms and timeframes, a new UK immigration system is expected to be in place by January 2021. This means new rules, different rights and revised processes are to be developed, communicated and implemented before the end of 2020. 

Under the Government's proposed new regime, EU citizens will become subject to the full reach of the UK immigration rules, with a focus on 'skills over nationality' in determining eligibility to enter and remain in the UK. 

This is an additional, sizable cohort that must be supported across the entire immigration piece - from applications through to appeals, enforcement and deportations. 

The operational implications for the Home Office and the courts system of this expanded remit cannot be understated. 

Changes will affect both EU citizens coming to the UK after Brexit and EU citizens already in the UK. The latter are already required to register under the EU settlement scheme to remain lawfully in the UK after we leave the EU. Those who fail to register - even where otherwise entitled to live in the UK - will be left undocumented and could inadvertently become illegal residents after Brexit. This is wholly predictable, demanding proactive management by the Home Office to avoid another Windrush-style scandal. 

Existing problems 

While the courts struggle with delays and backlogs in immigration hearings, and Home Office issues relating to flawed decision-making, technical deficiencies and outright negligence persist, the country's immigration infrastructure, both under-resourced and under-funded, offers weak foundations on which to deliver a whole new immigration regime affecting a greater number of people. 

Application processing is inconsistent, inefficient and slow. In the year to March 2019, 52% of immigration appeals were overturned when challenged in court. This was an increase from 39% three years earlier. 

With rights to appeal all but eroded, applicants are routinely turn to the media to shame the department into responding to their case.

Home Office statistics in March 2019 show the mean average time to clear immigration appeals in the First-tier Tribunal across all categories is now 40 weeks, with average times of 42 weeks and 47 weeks for human rights and EEA appeals respectively. Although an improvement on the previous year, appellants continue to face lengthy waits. 

While new technologies should offer potential solutions, the Home Office's track record in digitisation of services is poor at best. Systems integration and data sharing with other departments such as HMRC, DWP and DVLA have seen issues relating to data management and privacy and there is little understanding of the Home Office's use of secretive algorithms to decide application outcomes. 

Meanwhile, the impact of a small-scale digital service pilot for Immigration and Asylum appeals as part of HMCT's reform programme has yet to be reported. 

Outsourcing remains an option of choice for the Home Office, , but its £91 million application processing arrangement with UKVCAS continues to cause issues since launching in November 2018.

What lies ahead 

No deal emergency planning diverts resource and attention away from the White Paper vision of building an immigration system that is fit for purpose. 

As the Home Office and the courts system struggle to meet the demands of the current regime, we can only be concerned for what lies ahead.

Anne Morris is an experienced immigration solicitor, and the founder and managing director of UK immigration law firm Davidson Morris

Patrick Lewis is a barrister at Garden Court Chambers, specialising in all areas of immigration, asylum, nationality, deportation, detention, EU free movement and human rights law.

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