EU deportation protections continue after Brexit

From next year there will be two categories of EEA national:

  1. Those who began their residence in the UK before 31 December 2020; and
  2. Those who began their residence in the UK after 31 December 2020.

The law a person is subject to will depend on which category they fall into. Family members of EEA nationals will be similarly categorised. They get all the same rights as the EEA citizen, even if they are a national of a non-EEA country.

The EU law rules on deportation will continue to apply to EEA nationals and their family members who fall within the first category. For those in the second category, the harsher UK rules on deportation will apply.

This has been the government’s policy for a long time. But it has only just published the legislation to make this the case: the draft Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020.

These regulations come into force when the Immigration (EEA) Regulations 2016 are revoked. This will probably be on 1 January 2021.

Preserving the old EU law rules on deportation

The government has a new habit of revoking European laws and then immediately reinstating them. It did this with the European Communities Act 1972, which was repealed on 31 January 2020 but continues to have effect for the duration of the transitional period. This somewhat confusing legislative mechanism seems to be how the government has decided to ensure certain aspects of EU law continue to apply after Brexit.

The same thing will happen with the EEA Regulations on 1 January 2021. They will be revoked, but continue to apply in modified form. This is necessary to ensure that EEA citizens who relocated to the UK before 31 December 2020 can continue to benefit from EU free movement law and its more lenient approach to deportation (as required by the Brexit Withdrawal Agreement).

These preserved EU deportation rules will apply to anyone granted settled status, pre-settled status or a family permit under Appendix EU (Family Permit). They will also apply to anyone eligible to apply, even if they have not done so.

This seems to go further than the Withdrawal Agreement which only requires application of the EU deportation rules where the conduct (i.e. criminal offending) occurred before 31 December 2020.

The above regulations apply to everyone with settled or pre-settled status or entitled to get it, regardless of when the conduct which led to deportation occurred. This is a far simpler way of determining what law applies.

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