17:21, September 01 34 0 theguardian.com

2019-09-01 17:21:04
U-turn over plan to end freedom of movement on 31 October

The government has been forced to scrap plans for a law that would end freedom of movement at midnight on 31 October in a no-deal scenario, according to reports.

In a shift of policy, the home secretary, Priti Patel, had planned secondary legislation to stop freedom of movement for EU citizens into the UK, but has been forced to accept that the move could have landed the government in court.

Her decision caused outrage when it was revealed last month, with the Liberal Democrats’ Ed Davey branding her plan “completely detached from reality … the next chapter in the never-ending saga of the utter mess they are making of Brexit”.

Free movement of EU citizens does not end automatically as a result of a no-deal Brexit, as EU law continues to apply until its legal foundation is repealed.

Q&A

What does a no-deal or WTO-rules Brexit mean?

At 11pm UK time on 31 October the UK would, by default, become a “third country” in terms of relations with the EU, with no overarching post-Brexit plan in place and no transition period. The UK would no longer be paying into the EU budget, nor would it hand over the £39bn divorce payment.

The UK would drop out of countless arrangements, pacts and treaties, covering everything from tariffs to the movement of people, foodstuffs, other goods and data, to numerous specific deals on things such as aviation, and policing and security. Without an overall withdrawal agreement each element would need to be agreed. In the immediate aftermath, without a deal the UK would trade with the EU on the default terms of the World Trade Organization (WTO), including tariffs on agricultural goods.

The UK government has already indicated that it will set low or no tariffs on goods coming into the country. This would lower the price of imports – making it harder for British manufacturers to compete with foreign goods. If the UK sets the tariffs to zero on goods coming in from the EU, under WTO “most favoured nation” rules it must also offer the same zero tariffs to other countries.

WTO rules only cover goods – they do not apply to financial services, a significant part of the UK’s economy. Trading under WTO rules will also require border checks, which could cause delays at ports, and a severe challenge to the peace process in Ireland without alternative arrangements in place to avoid a hard border.

Some no-deal supporters have claimed that the UK can use article 24 of the General Agreement on Tariffs and Trade (Gatt) to force the EU to accept a period of up to 10 years where there are no tariffs while a free trade agreement is negotiated. However, the UK cannot invoke article 24 unilaterally – the EU would have to agree to it. In previous cases where the article has been used, the two sides had a deal in place, and it has never been used to replicate something of the scale and complexity of the EU and the UK’s trading relationship.

The director general of the WTO, Roberto Azevêdo, has told Prospect magazine that “in simple factual terms in this scenario, you could expect to see the application of tariffs between the UK and EU where currently there are none”.

Until some agreements are in place, a no-deal scenario will place extra overheads on UK businesses – eg the current government advice is that all drivers, including lorries and commercial vehicles, will require extra documentation to be able to drive in Europe after 31 October if there is no deal. Those arguing for a “managed” no deal envisage that a range of smaller, sector-by-sector, bilateral agreements could be quickly put into place as mutual self-interest between the UK and EU to avoid introducing or to rapidly remove this kind of bureaucracy.

Martin Belam

Theresa May had planned to end free movement through the immigration bill, but the proposed legislation, along with several other key new laws, have not made it through parliament because the Brexit crisis has choked the legislative process.

Patel thought she could get around this using a so-called “Henry VIII power” but experts including Alexandra Sinclair, a fellow at the Public Law Project, told the House of Commons library researchers that any such move “might run into difficulties”.

The Institute for Government’s programme director for Brexit, Joe Owen, said it would be “wide open to judicial review”.

“To do that [end freedom of movement on 31 October] in any meaningful way would cause major disruption – employers, citizens and universities are completely unprepared for this last-minute U-turn,” he said.

“On a practical level the plan is so close to impossible – if not entirely impossible – that one wonders whether the government is serious about making it work.”

The Sunday Times reported that the government’s no-deal cabinet, known as the XO committee, was told last week that it would have a 70% chance of losing a court case, as the move gave no consideration to the pre-acquired rights of EU citizens.

The shift in policy did not involve any assessment of how employers, landlords or Border Force officials would be able to distinguish between EU citizens already legally resident in the UK and those coming to the UK for the first time after a no-deal exit from the EU.

In a statement which did not address points made by legal experts that free movement did not automatically end on 31 October, the Home Office said: “Freedom of movement as it currently stands will end on 31 October when the UK leaves the EU, and after Brexit the government will introduce a new, fairer immigration system that prioritises skills and what people can contribute to the UK, rather than where they came from.”

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