Professor Steve Peers, University of Essex
Recent discussions about the UK’s post-Brexit return to blue passports have been marked by misinformation. Contrary to some claims, the passport change won’t incur additional costs, as the contract was already up for renewal. Additionally, the EU never mandated the burgundy color; it was merely a non-binding suggestion.
While some view the color change as symbolic of Brexit, the true measure of a passport lies in the rights it affords, not its appearance. Therefore, it’s important to examine the likely implications of Brexit on the rights of UK citizens traveling to and residing in the EU. This analysis updates a 2014 post, focusing on UK citizens residing in the UK on Brexit Day who don’t hold EU27 citizenship, as separate rules are expected for UK citizens already living in the EU27 based on the withdrawal agreement.
Several points warrant consideration. Firstly, a transition period, likely maintaining EU free movement rules for a limited time after Brexit, is anticipated. Individuals relocating during this period might be subject to the same rules as those who moved pre-Brexit, though this needs confirmation.
Secondly, not all EU Member States adhere to all aspects of EU immigration law. Notably, regulations concerning short-term visas and borders, stemming from the Schengen agreement, don’t apply to the UK or Ireland, have limited application in some other EU countries, and extend to non-EU Schengen associates. Regulations for long-term migration and asylum apply to all EU members except Ireland and Denmark but not to non-EU nations, barring specific asylum rules. Consequently, post-Brexit UK-Ireland immigration remains unaffected by the laws outlined here. Additionally, existing EU free movement laws will continue to cover UK citizens who are family members of EU citizens migrating to another Member State.
Thirdly, this analysis utilizes current EU law as applied to non-EU countries like a post-Brexit UK: prosperous nations lacking free movement agreements with the EU. Areas undergoing revisions will be highlighted. The possibility of a special post-Brexit UK-EU immigration agreement, falling short of free movement, will be discussed generally in the final section, as specific details from the UK government are currently unavailable.
Lastly, framing any post-Brexit travel or residency difficulties for UK citizens in the EU as “punishment” is disingenuous. The UK government’s pursuit of non-EU status without free movement, as supported by most Leave voters, inherently implies limitations on both EU citizens’ access to the UK and vice versa. Accepting the consequences of this decision is crucial.
Visas and border controls
Short-term visa requirements for UK citizens visiting the EU post-Brexit are unlikely, based on the current visa list Regulation, which reflects the EU’s policy of not imposing such requirements on relatively wealthy non-EU nations that reciprocate.
However, the EU is developing an electronic travel advance authorisation system (ETIAS), potentially applicable to the post-Brexit UK. This system, currently under legislative negotiation, would require pre-travel authorization for citizens of non-EU countries without free movement agreements. The UK is also considering a reciprocal system for EU citizens.
Regarding border control queues, the Schengen borders code currently expedites those with EU citizenship or nationality from countries with free movement agreements. Therefore, without a unique arrangement, UK citizens will lose this privilege post-Brexit. Claims stating otherwise misrepresent the legal reality, particularly comparisons to Switzerland, a country with both free movement and Schengen membership.
The planned EU entry-exit system, recording all entries and exits from the EU, will also apply to UK citizens, along with the Schengen Information System, which enforces EU-wide entry bans for individuals with criminal or immigration violations.
Long-term migration
Long-term relocation of UK citizens to EU countries will still be possible after Brexit but under stricter national laws, partly harmonized by EU law.
EU legislation exists for highly skilled non-EU migrants (“Blue Card” Directive, under revision), common rules for non-EU worker treatment (single permit Directive), seasonal workers, and intra-corporate transferees. This legislation sets minimum standards, with Member States retaining some autonomy.
The revised EU law on students and researchers, effective from 2018, will impact UK students who will no longer enjoy equal treatment regarding university fees and admissions. However, existing case law suggests admission must be granted if the stringent standards for non-EU students are met.
Family reunion for UK citizens moving to the EU will be more challenging, regardless of their family’s nationality, as the EU’s family reunion Directive will apply.
Regarding asylum, while largely prohibited for EU citizens, UK citizens will no longer be bound by this restriction. EU refugee law, currently being revised, aligns with the UN Refugee Convention’s definition of a refugee. Currently, there’s no indication that the UK government is unable or unwilling to address any persecution concerns of UK citizens.
Irregular migration
UK citizens violating EU or Member State immigration laws will fall under the EU’s Returns Directive governing the removal of non-resident non-EU citizens.
Special deal?
A special UK-EU immigration agreement post-Brexit is possible. An agreement on visas and borders would likely involve the entire EU. The EU has previously signed agreements with non-EU countries on border agency cooperation, visa waivers, and readmission, but whether they’d consider a broader agreement, such as reciprocal non-application of electronic travel authorization, remains to be seen.
Negotiating legal migration agreements might be simpler, as EU law harmonization is less comprehensive in this area, and Member States retain some control. Agreements could be mixed, requiring ratification by both the EU and its Member States, or bilateral, between the UK and specific Member States.
Ultimately, the inclusion of a special immigration deal in broader UK-EU negotiations remains uncertain. Some in the UK might offer limited labor market access for greater access to EU service markets. Others may be opposed to any immigration concessions. Importantly, any agreement would be reciprocal, facilitating immigration for both UK and EU citizens.
*This blog post was supported by an ESRC priority grant on “Brexit and UK/EU immigration policy”
Barnard & Peers: chapter 27, chapter 26
JHA4: chapter I:3, I:4, I:5, I:6, I:7
Photo credit: Telegraph