Brexit, Article 50 & new Immigration Rules

Prologue
“We not only have a parliamentary democracy, but on questions about the arrangements for how we’ve governed there are times when it is right to ask the people themselves and that is what we have done…The British people have voted to leave the European Union and their will must be respected…The will of the British people is an instruction that must be delivered.” (Speech of Britain’s Prime Minister David Cameron after Britain voted to leave the European Union, outside Number 10 Downing Street in London, Britain June 24, 2016)

Despite the fact that the Prime Minister David Cameron had urged the country to vote Remain claiming to remain stronger by staying within the European Union, yet was defeated by 52% to 48% in the EU Referendum held in the UK on 23rd June 2016. As a result, he has decided to step down by October 2016 after the UK voted to leave the European Union. The referendum turnout was 71.8% – with more than 30 million people voting – the highest turnout at a UK-wide vote since 1992. David Cameron paid the price for his failure to secure Britain’s future in the European Union announcing his resignation and admitting the country now needed “fresh leadership”.

Immigration – major issue
“EU Migration/Immigration” has been a major issue in the European Union Referendum campaign due to which the UK voted to leave the European Union. Prior to this referendum, the net migration to the UK was 333,000 in the year to December – the second highest ever. A record 184,000 of those came from the EU. Among them with around 77,000 arriving without having a job lined up. Mr. Cameron also admitted that since 2010 around 1.2 million EU citizens had come to the UK.

During his interview with the Sky News political editor Faisal Islam, Mr Cameron refused to say when he’d hit his long-standing target for annual net migration below 10,000. Huge influx of EU migrants created adverse impact in the Social Housing, local School places, National Health Services & Jobs.

Therefore, in this article an attempt would be made to establish how Britain would start the process of leaving the European Union, when Article 50 of the Lisbon Treaty would be invoked & what would be the new Immigration Rules to deal with EU & Non-EU Migration to “deliver the will of the British people”.

Article 50 & Briexit
With a view to exit from the EU, Britain needs to invoke and implement Article 50 of the Lisbon Treaty on the European Union as a vehicle, which provides the exit clause that permits an EU member state to leave the union. The Article states that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” Once Article 50 is triggered, the timer starts ticking on a two-year renegotiation with the European Union that ends with Britain’s expulsion from the 28-member bloc unless EU member states unanimously agree to extend negotiations. At the end of the two-year period, Britain will be expelled from the EU unless member states unanimously decide to extend the deadline.

Article 50 has never been triggered before. This Article was created to give the negotiating advantage to the EU, and not the country planning to leave, to deter member states from exiting the union. Hence the separation process is deliberately kept for two years to discourage the contracting parties not to leave the European Union. David Cameron said that his successor should decide when to trigger Article 50. The next Conservative leader is expected to have entered Downing Street by October and it is likely that Article 50 will be used soon after.

Draft plan for new Immigration Rules
The Australian system for controlling immigration has been held as a model for the UK to follow by leading campaigners supporting a vote for Britain leaving the European Union. A joint statement from Brexit supporters, Boris Johnson, Michael Gove, Priti Patel, and Gisela Stuart outlined plans for a UK immigration system that would ‘mark the end of the automatic right of EU citizens to come and live and work in the UK.

Australia is one of the most multicultural countries in the developed world with just over a quarter of the 24m population born overseas. The joint statement from Brexit supporters said: “By the next general election, we will create a genuine Australian-style points-based immigration system. The automatic right of all EU citizens to come to live and work in the UK will end, as will EU control over vital aspects of our social security system. EU citizens will be subject to legislation made by the British Parliament, not in Brussels. It will create fairness between EU citizens and others, including those from Commonwealth countries.

Under the ‘new’ Immigration Rules/system proposed by the Leave campaigners; applicants whether EU or non-EU Migrant seeking to live and work in the UK would be assessed based on their skills and qualifications ‘without discrimination on the grounds of nationality.” Under this new point based system, to gain the right to work, economic migrants will have to be suitable for the job in question. For relevant jobs, we will be able to ensure that all those who come have the ability to speak good English. Such a system can be much less bureaucratic and much simpler than the existing system for non-EU citizens.

Australian-style point based Immigration System
The Australian system is designed to meet Australia’s economic and social needs with the number of places set annually following community consultation and economic modelling.

There are two main routes to gaining a temporary work or permanent residency visa, through a skills points test or through employer nomination. Points are awarded under the skills test for a variety of factors such as level of education, employment experience, English language ability and age. Employers can also nominate a skilled worker for a position to work in Australia. Applicants must have the necessary skills and meet various requirements in terms of character, health and English language. Those with temporary work visas may be able to apply for permanent residency visas after two years. The number of visas awarded can be capped by the immigration minister.

Under the Australian system, points are awarded in a number of categories under a points-based assessment.

Age
Applicants must be under 50. Any applicants aged between 25 and 32 automatically start with half of the required 60 points. Those aged between 45 and 49 start with zero.

Competency in English
All applicants must demonstrate a basic competence in English. But they are only awarded points if their language skills are deemed “proficient” or “superior”.

Qualifications and experience
The remaining points to achieve the minimum 60 are awarded for certain qualifications and employment histories – gained in Australia or overseas – or other factors including tertiary education and whether an applicant’s partner fulfils certain requirements. A doctorate from an institution recognised by Australia is worth 20 points, for example.

Prospective residents can also gain points if they have previously worked in Australia, or if they have studied in certain specified parts of the country, such as metropolitan areas with low population growth.

Occupation
For some visa subclasses, sponsorship by an employer or family member or nomination by a government is required. If an applicant is not sponsored by an employer, their occupation must be on an approved list. For each occupation, there is is a limit on the number of applications that can be accepted. For the 2015-16 intake, Australia has already approved all 1,000 available visas for auditors, company secretaries and corporate treasurers; the 1,788 industrial, mechanical and production engineers; and 1,000 other engineering professionals. But if you are a (non-primary) school teacher, a vet or a cartographer, there are still thousands of places left.

Campaigners for Brexit have proposed to introduce a new Immigration Rules in the light of the Australian-style points-based immigration system. Skilled migrants are seen as a bonus to the Australian economy. Leave campaigner details plans for ‘Australian-style points-based’ controls to limit numbers coming to Britain from EU. Leave campaigner proposed for this system as Australian system is much more controlled than in the UK, which is part of the European Union.

Epilogue
It is hoped that by introducing Australian system Australian-style points-based immigration system Britain would be able to control & reduce immigration to the UK especially from the Eastern European countries that are member states of European Union. This would also be a fair system as it would remove the huge disparities where Commonwealth citizens with family in Britain struggle to obtain visas whilst EU citizens with little link with the UK can automatically work here

Britain needs to start the negotiation with the European Union immediately. With a view to protect the interests of all parts of the United Kingdom, the negotiation should involve the full engagement of the Scottish, Welsh and Northern Ireland governments. Outside the EU, Britain would remain stronger, safer and better off if proper steps are taken by the new Prime Minister of the UK to create an Australian style Point based system Immigration Rules in the UK as “…The British people have made a choice. That not only needs to be respected— but those on the losing side of the argument, myself included, should help to make it work…”

* (The writer is a Barrister of the Honourable Society of Lincoln’s Inn & Qualified Chartered Legal Executive Lawyer of CILEX. He was declared as the Best Human Rights Lawyer of England & Wales by Bar Council, Law Society & CILEX. He can be contacted at barristermuid@yahoo.co.uk ).