1.1 We currently have two parallel systems in place which govern the immigration of EU citizens (and their family members) and non-EU nationals respectively.

1.2 While the UK is a member of the EU, EU citizens and their family members enjoy an EU Treaty-based right to enter and reside in the UK without the need to obtain individual immigration status, provided certain conditions are met.

1.3 Currently, the movement of people between EU countries is governed primarily by the Free Movement Directive  This sets out the rights of EU citizens and their family members to move, and reside freely, within the EU. This Directive consolidates various rights in the EU Treaties, and the Court of Justice of the European Union has the final say on how these rights are interpreted and enforced.

1.4 Non-EU nationals (other than family members of EU citizens) are generally subject to UK immigration law and therefore need permission to enter and remain in the UK, under the Immigration Act 1971. This is given, or refused, on a case-by-case basis by the Home Office according to the  immigration Rules in place at the time.

1.5 After we leave the EU and from the end of the Implementation Period, we will bring the migration of EU citizens within a UK legal framework, overseen by UK courts. This will ensure the Government can control EU migration in the national interest, economic and social need, and continue to attract those migrants who make apositive contribution to the UK.

The Free Movement Directive (the ‘Directive’) – overview

The Directive states that EU citizens (including their EU and non-EU family members) must be admitted to the UK and can reside for up to three months from the date of entry, provided they meet basic criteria, such as not becoming a burden on the social assistance system of the UK.

EU citizens wishing to stay beyond three months can generally only do so where they are exercising ‘Treaty rights’ -– until they become entitled to permanent residence in the UK (usually after exercising Treaty rights in the UK for five years). Exercising Treaty rights in this context means they must be working, self-employed, a student, a self-sufficient person or the family member of an EU citizen who is exercising Treaty rights. The Directive is primarily implemented in UK law through the Immigration (European Economic Area)Regulations 2016.

1.6 In the UK, the European Union (Withdrawal Act) 2018 will preserve, on the UK  statute book, the regulations that implement the EU Free Movement Directive, until the regulations are repealed and replaced by new rules. We intend to do that through an Immigration and Social Security Co-ordination (EU Withdrawal) Bill, as detailed in Chapter 14.

1.7 Within the current non-EU system, we differentiate between visitors who are coming to the UK for short periods as tourists or to do specified business activities and who intend to leave at the end of their visit; and migrants coming to work, study or to join family. Some in the second category have the right to settle permanently.

1.8 All non-EU nationals entering the UK need to be given specific leave to enter for a given period and generally with conditions. Sometimes this requires permission to be obtained before arrival, while others can be granted leave to enter on arrival at the border. “Visa nationals” (e.g. Nigerians, Ukrainians or Pakistanis) always require a visa to cross the UK border, even as visitors. “Non-visa nationals”, (e.g.
Canadians or Japanese), do not need a visa to come to the UK as visitors. However, they must obtain permission in advance of travel to work or study in the UK. We intend to build on these arrangements in the future system, as explored in more detail in Chapters 5, 6 and 7.

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