Author: Carey Olsen.
Carey Olsen partner Elaine Gray said that immigration rights were a key issue with freedom of movement of persons and services due to expire at the end of a proposed transition period in December 2020. Channel Islanders with UK connections, such as having a parent or grandparent born in the UK, have had these rights of movement but those will also come to an end.
‘On both sides of the negotiation table, it was recognised that people across Europe had made choices about where to live and work based on existing rights to freedom of movement,’ said Advocate Gray.
‘Perhaps because this issue was so critical in any negotiation it was a high priority in the negotiations and in March this year the EU and the UK reached an agreement that they would both respect the rights of people who had exercised this right.’
That commitment was reflected in the Brexit agreement, which set out detailed provisions to protect those who had exercised such rights – as long as those entitled to do so exercise those before the end of the transition period.
‘What this means is that any EU citizens and their family members who are resident in the UK or Guernsey pursuant to their right to freedom of movement will be able to stay on after Brexit. Similarly, British citizens and their families who are resident in the EU, and by extension Guernsey residents who have the right of freedom of movement, will have their rights to stay in Europe secured.’
Advocate Gray added: ‘The UK has said it will establish the EU Settlement Scheme, which will allow EU citizens and their families to remain post-Brexit. The States of Guernsey has committed to providing an equivalent scheme. The current States guidance indicates that proposals for such a scheme will be put to the States in due course, but that EU citizens and their families living in the Bailiwick need not take any action at this stage.’
While it was a welcome confirmation of the position in relation to immigration rights post-Brexit, Advocate Gray said that immigration rights and the right to work in Guernsey were two separate things.
‘In this regard, the Committee for Home Affairs has already confirmed that Guernsey’s population management regime, and the Alderney and Sark equivalents, will continue to apply post-Brexit.
‘In other words, Guernsey will continue to be able to exercise control over who is allowed to work in Guernsey. As regards the Common Travel Area, which applies between the UK, Ireland and the Crown Dependencies, the Brexit agreement confirms that this can continue notwithstanding the UK withdrawing from the EU.’
The employment law specialist added: ‘What remains unclear is what immigration controls will look like post-Brexit. Guernsey has always closely mirrored the UK immigration regime and it seems highly likely this will continue to be the case post-Brexit, once the transitional period ends.
‘However, whether Guernsey can afford to adopt the same regime is a very different question.
‘In October Theresa May set out plans to end preferential access for EU citizens to the UK labour market post-Brexit and to introduce significant curbs on the entry of low-skilled migrants. Given that both Guernsey and Jersey have reported significant issues in recruiting labour, closing the immigration door is unlikely to be welcomed by the business sector.’
While there was only one reference to the Channel Islands and none to Guernsey in the Brexit deal, Advocate Gray said the document made clear that it would apply to the Channel Islands – but only to the extent that European Union law already applied. ‘So, if a particular European legal provision applied in Guernsey before the agreement, whatever the agreement says regarding that provision will apply to Guernsey.’