Daniel Thym, Professor of Public, European and International Law at the University of Konstanz

Immigration was a key issue during the Brexit debate, with “taking back control” becoming a central theme. In her January speech in Lancaster, Theresa May emphasized that controlling immigration was a primary goal of the Brexit negotiations. She stressed the public’s message that Brexit must equate to managing the influx of people from Europe to Britain.

The “breaking point” poster used by UKIP before the referendum, depicting migrants and asylum seekers moving through the Western Balkans, remains memorable. This poster became a turning point, linking the EU to disorder and uncontrolled borders for both EU citizens and those from non-EU nations.

From a legal standpoint, the “breaking point” poster presents an ironic situation. While Brexit could grant the UK greater legal control over the entry and residence of EU citizens, it doesn’t automatically simplify the management of non-EU immigration, including asylum seekers. Paradoxically, it might even complicate control over non-European immigration to a degree.

Current Situation: A Broad Opt-Out

This irony is rooted in the UK’s legal position. Having opted out of the Schengen Area, the UK has always maintained significant control over its external borders regarding non-EU citizens’ entry and residence. It declined to sign the 1990 Schengen Implementing Convention and secured an opt-out when this was incorporated into the European Union framework through the Treaty of Amsterdam.

Furthermore, successive UK governments chose not to participate in many legislative initiatives concerning immigration, visas, and border control within the area of freedom, security, and justice. These initiatives, developed over the last 15 years, significantly reshaped immigration law in continental Europe. The UK remains uninvolved in measures like the Family Reunion Directive, Long-Term Residents Directive, Blue Card scheme, or other instruments simplifying non-EU citizen entry and residence. The UK retains autonomy in deciding visa requirements, employment eligibility, and grounds for requiring individuals to leave. UK sovereignty in this domain faces few limitations from primary or secondary EU law.

However, the European Convention on Human Rights (ECHR), particularly Articles 3 and 8, does restrict state authority regarding the expulsion of individuals residing illegally, including terrorism suspects. This is why Theresa May, during her time as Home Secretary, advocated for withdrawing from the ECHR or at least repealing the Human Rights Act. Leaving the ECHR (or repealing the Human Rights Act) could have expanded UK sovereignty over non-EU nationals, but at a significant constitutional cost. Conversely, leaving the EU won’t significantly alter immigration control.

Brexit: Losing the Opt-In

Furthermore, the UK might experience diminished regulatory influence post-Brexit concerning immigration control related to non-EU citizens. The reason is straightforward: during the Treaty of Amsterdam negotiations, Tony Blair’s government not only secured an opt-out from Schengen but also obtained an opt-in option for any immigration, visa, asylum, and border control measures not directly tied to eliminating border controls. This opt-in option was reinforced by the Treaty of Lisbon, establishing an unprecedented “cherry-picking” opportunity in justice and home affairs legislation. The UK, including under Theresa May’s tenure as Home Secretary, has utilized this opt-in option extensively and selectively over time.

This selective opt-in approach prioritized measures strengthening state control, like the Schengen Information System (SIS), in which the UK participates despite not joining free movement. The UK also joined various EU measures combatting illegal immigration without being bound by regulations on legal migration. Notably, the UK participates in the Dublin Regulation but does not contribute to solidarity measures, such as the relocation decisions to resettle 160,000 asylum seekers from Greece and Italy to other Member States. While the Dublin system was initially a convention outside the EU framework, it ceased to be an instrument of public international law when superseded by EU legislation in which the UK participated.

In essence, British involvement in justice and home affairs was highly selective and uneven: it bolstered state control without advancing migrant and refugee rights. As an EU member, the UK could leverage the justice and home affairs protocols to strengthen control over its external borders with other Member States through selective participation. Ironically, Brexit will reverse this dynamic.

The Future: A Shift in Dynamics

Post-Brexit, the UK can no longer decide to participate in Dublin or SIS simply by informing the Council. Instead, it must negotiate with the EU, with any agreement requiring reciprocal concessions.

Therefore, the UK might need to make trade-offs to participate in the Dublin IV Regulation or the Schengen Information System in the future—something previously granted without cost. For instance, the EU could demand UK contributions to relocating asylum seekers from Greece or Italy. This scenario would make Brexit the opposite of what UKIP envisioned with its “breaking point” poster.

Of course, this outcome isn’t inevitable. The UK could choose to stay out of Dublin or negotiate a broader package deal. The EU’s price for continued UK participation in Dublin could involve any policy area.

One certainty remains: the UK will no longer enjoy free access to Dublin, similar to Switzerland, which was granted entry on the condition of joining the Schengen area and abolishing border controls with Germany. This, for me, encapsulates the irony of Brexit for immigration law: controlling the entry and residence of non-EU citizens might become more challenging for the UK.

Barnard & Peers: chapter 27, chapter 26, chapter 13

JHA4: chapter II:6

Photo credit: Horizon magazine