If a Brexit deal fails, is there a default fallback regarding movement of people?

Question

The UK government has announced it will leave the EU Single Market. We have been told that unless the UK negotiates a specific trade deal with the EU, trade rules will automatically fall back to WTO rules. We have also been told that the UK wishes for freedom of movement with the EU to end.

Trade is only one aspect of a deal between the UK and the EU. If the UK and the EU would fail to negotiate an exit deal before the deadline, is there any default fallback related to visas, tourism, and immigration?

For example: currently, the UK has no specific rules on visa requirements for EU citizens, because EU treaties grant freedom of movement. Barring a wider post-Brexit agreement on EU-UK travel, would the UK need to make bilateral deals with individual member states regarding visa-free travel, or can the UK decide on the visa regime per EU member state unilaterally? My question applies to either short-term visas for tourism or business, or longer-term residency visas such as for work.

Answer 1

The default position is that citizens of another country need a visa to enter a country for any reason. As with most countries, the UK, the Schengen system, and the other EU countries have lists of exceptions, that is, countries whose citizens are allowed to enter without a visa for short visits for a limited set of purposes such as tourism, business, and medical treatment.

Non-reciprocal visa regimes are common, presumably instituted by unilateral action. For example, Senegal requires visas of almost nobody, despite the fact that Senegalese citizens need visas to enter countries including the UK and those in the Schengen area.

The UK can, and probably will, decide that citizens of most EU countries can enter as visitors without needing a visa, just as citizens of the US and Japan may. Similarly, the EU would be likely to add the UK to Annex II, the list of countries whose nationals can enter the Schengen area for stays of up to 90 days in any 180-day period. It's likely that these decisions would be in place before Brexit takes effect, but it's also possible that there might be a delay.

If there were a delay, British citizens wanting to visit the EU, or EU citizens wishing to visit the UK, would need visas.

In any case, for long-term visits in either direction, visas would be required unless there is some sort of transitional agreement that makes them unnecessary.

As Brythan noted in a (now deleted) answer, not discriminating doesn't imply that citizens of different countries must be treated equally as individuals. Rules can be applied equally to all countries that result in citizens of certain countries receiving closer scrutiny, for example because visa abuse statistics show more abuse by citizens of that country.

Answer 2

Technically, with respect to UK law specifically, the The Immigration (European Economic Area) Regulations 2016 will remain in force until repealed, even following a no-deal Brexit. These enact free movement for EEA citizens and their families. For example, this states:

11.—(1) An EEA national must be admitted to the United Kingdom on arrival if the EEA national produces a valid national identity card or passport issued by an EEA State.

So, this is the default position until parliament changes the law. A bill to do this, Immigration and Social Security Co-ordination (EU Withdrawal) Bill, has not yet been passed. As the overview factsheet for the bill says:

Without the Bill, EEA and Swiss nationals would be able to continue to live and work in the UK in accordance with retained EU law on free movement of people.

If passed, the Home Secretary must put forward secondary legislation to specify a date and bring the change in to effect.

In the other direction it may be more complicated. The Portuguese equivalent, for example (and as far as I can read it), applies to citizens of EU member states and so UK citizens will have their rights stripped immediately upon Brexit - unless they have/will legislate specifically, which I imagine they will. Irish law does it this way too (but British citizens will still be able to move there freely under the Common Travel Area) - but maybe some countries list all the EU members explicitly and will have to amend their laws to remove the UK.

The EU has, however, said that it will allow visa-free visits for UK citizens as long as the UK allows them in the other direction (but, as this is not an EU competency, I would imagine this requires all the member states to agree). This seems very likely as the UK has a long list of countries whose citizens do not require visas, including some which are much less prosperous and politically stable than the EU countries.