The High Court in London has thrown a spanner in the works by ruling that British Prime Minister Theresa May does not have the power to trigger Brexit without parliamentary approval. The appeal against the High Court judgement is to be heard in early December by the UK Supreme Court, with Britain’s departure from the European Union far from being an absolute certainty.

The United Kingdom joined what is today known as the EU in 1973 after its Parliament passed the European Communities Act, 1972. The only way the UK can leave the EU is by triggering Article 50 of the EU’s Lisbon Treaty, which allows member states to leave the pan-European body in accordance with “its own constitutional requirements”. What these requirements are is far from clear.

A bunch of petitions were filed in the High Court in London asking the court to declare that the only way Britain could leave was with the approval of members of Parliament. Opposing this view was the British government, with the attorney general arguing that the prime minister could resort to using the Crown’s executive power to trigger Article 50, thereby respecting the “will of the people” to leave the EU.

The court agreed with the petitioners’ argument that the European Communities Act, 1972, which brought the UK into the EU, could not be overridden by the government as “it cannot be said that a law is invalid” on the ground that it is “opposed to the opinion of the electorate”, an opinion that was expressed in the referendum of June 2016.

If the UK government is allowed to exercise its prerogative power to withdraw from the EU, the court held that it would be tantamount to allowing the prime minister to diminish or abrogate citizens’ rights under domestic law through executive action. The court concluded that the 1972 Act was a statute of constitutional importance whose effect could not be overridden by the government giving the EU notice under Article 50 of its intention to leave.

Parliamentary scrutiny

In the aftermath of the ruling, May has conceded that the government will have to pass an Act of Parliament before it can trigger Article 50, but has promised to appeal the decision to the Supreme Court nonetheless. If the Supreme Court dismisses the appeal, the stage will be set for Parliament to debate the broad principles on which exit negotiations will be conducted with the other 27 EU nations.

With the High Court’s ruling, many “remain” campaigners have expressed the hope that the Supreme Court will uphold the High Court’s judgement and Parliament will step in to save Britain from leaving the EU. At the very least, those who chose to remain seem to believe that parliamentary control of the exit process will likely lead to a soft Brexit as opposed to a hard Brexit.

A hard Brexit would mean that the UK would lose access to the European Economic Area common market. The European Economic Area agreement provides for the free movement of persons, goods, services and capital within 31 countries, 28 of which belong to the EU. A hard Brexit would mean curbs on immigration from countries like Poland can be imposed. But, with the pound rallying after the court ruling for the first time since Brexit and the UK economy predicted to go into free fall on leaving the EU, the prospects of a soft Brexit seem like a very real possibility.

If MPs strike a deal with May’s government for a soft Brexit before her March 2017 deadline to trigger Article 50, then curbs on immigration from European Economic Area countries like Poland will have to go, leaving non-European Economic Area migrants exposed. As politically untenable as this might seem today, four months is a long time in politics.

None of these eventualities augurs well for current and prospective South Asian migrants to Britain, who are classed as “non-EEA nationals” by the UK’s Border Agency.

Implications for South Asians

A hard Brexit would mean that South Asians who are not British citizens will be competing for job opportunities with citizens of the 30 European Economic Area nations, who will no longer have an automatic right to live and work in the UK. A soft Brexit will mean that European Economic Area nationals would be given preferential treatment over non-European Economic Area nationals from South Asian countries on the basis of the exit deal Britain strikes with the EU.

If Brexit does not come to pass, it will be nothing short of disastrous for South Asian migrants who will become the first causalities in Theresa May’s efforts to control “net migration”. In 2015, the net migration figure was 355,000 (positive value), which is the difference between immigrants and emigrants entering/leaving Britain. May remains firmly committed to her predecessor David Cameron’s target of cutting net migration to the “tens of thousands”, which is something she can achieve only if there are curbs on migration from citizens of European Economic Area countries.

At her coronation as prime minister, Theresa May, pledging to reduce the influx of foreigners, spoke of how “if you believe you are a citizen of the world, you are a citizen of nowhere. You don’t understand what the very word citizenship means”. Her Home Secretary Amber Rudd promised to tighten visa rules and suggested that companies should publish a list of foreign workers that they employ. And all of this was back in October, before the High Court’s ruling, when Brexit was a certainty.

On Friday, the UK announced changes to its visa approval policy for non-EU citizens, including the raising of salary tiers for different categories and new English language requirements – changes that will reportedly affect Indian workers, especially information technology professionals. The news came just days ahead of May’s three-day visit to India, starting Sunday, when the British government is expected to push for negotiations on a post-Brexit free trade agreement with New Delhi.

Late last month, India’s high commissioner to the UK, Dinesh Patnaik, told a gathering in London that India would stand by Britain through Brexit, as “this is what friends do”. This stance should come as no surprise as empirical and anecdotal evidence suggests that a majority of the South Asian diaspora, including Indian and Pakistan citizens who were eligible to vote, voted to leave the EU in the hope that Brexit would mean that there would be more opportunities for South Asian migrants, with eastern Europeans being shown the door.

It seems like they chose to leave the EU, much like some of their compatriots across the pond are likely to do by voting for the Republican presidential candidate Donald Trump, without fully appreciating the implications of their choice.