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Post-Brexit migration, policing and security: analyses

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28 January 2019

One recent analysis argues that the post-Brexit UK migration regime foreseen in a recent white paper "will create new hierarchies of race and class – and intolerable hardship", while another argues that in the event of a no-deal Brexit, the extradition of criminal suspects between the UK and EU Member States - one aspect of the numerous policing and security issues covered in proposed new regulations - may well face problems.

Entrenching hierarchies: the new immigration white paper (IRR, link):

"The white paper setting out the government’s post-Brexit immigration policy, The UK’s future skills-based immigration system, seeks to justify the removal of free movement rights of citizens of the European Economic Area (EEA) (1) by principles of fairness which dictate that all nationalities should be treated consistently. It would be a fine thing if such a fundamental principle of fairness were adhered to, and race, ethnicity and nationality were finally to become irrelevant in immigration policy. It is however a retrograde step to achieve equality by removing rights from those who have them, and subjecting all to the same dismal state of abject rightlessness.

In fact, though, the proposals set out in the white paper do not achieve equality, or even seek it. They seek instead to entrench existing divisions based on nationality and class. The only change is that the dividing line is no longer ‘EU’ or ‘EEA’ vs ‘non-EEA’ or ‘third country national’, but instead, ‘low-risk’ vs ‘high-risk’ nationalities, who are to be treated differently in terms of ease of entry for visits, study and work in the UK, and ‘high-skilled’ vs ’low-skilled’ migrants, the former welcome, the latter not."

See: White Paper: The UK's future skills-based immigration system (pdf)

No deal Brexit: what this would mean for extradition? (Lexology, link):

"Whilst falling back on the ECE [the 1957 Council of European Convention on Extradition] is presented as a default option, some Member States rescinded their legislation implementing the Convention when the EAW [European Arrest Warrant] came into force. The ECE therefore does not appear to provide a reciprocal solution and it is not clear what the process will be followed if the UK seeks the return of a fugitive. This was an issue addressed in the House of Lords report on Brexit: judicial oversight of the European Arrest Warrant which said that there “would be a problem with those Member States that have rescinded their legislation implementing the Convention”. The report concludes that the “Committee’s concern is that because extradition is a two-way, reciprocal arrangement, in the case of such Member States, simply amending the Extradition Act would not in itself be sufficient. If the UK did not have pre-existing extradition arrangements with certain member states, extradition could become impossible at the moment of Brexit.” Though, this might be settled “if all parties agreed that they would revert to using the [1957] Convention...that that would be a fallback position”. Indeed, it may be that the culture of mutual trust and recognition that has developed under the EAW scheme is so entrenched that this would diminish the practical impact a return to the ECE.

Given the UK’s commitment to cross-border law enforcement (and the focus on the EAW from the outset in terms of future EU-UK relations) we can expect that the Government will press to maintain extradition arrangements that are as close as possible to the EAW scheme in any future partnership or transition deal. How close this will be once the UK is outside the EU is another matter."

See: The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (pdf) and: Explanatory memorandum (pdf)