No free for all

You can provide controls on immigration while upholding free movement of labour, finds Catherine Barnard

For many people, it was concerns about immigration that prompted them to vote to leave the European Union. The perception was that the United Kingdom was unable to deport EU criminals, that EU migrants were putting an undue burden on public services, they were unjustifiably claiming benefits and, in some areas, taking scarce jobs too. These ‘Leave’ voters therefore wanted the UK to ‘take back control’ of its borders.

Inevitably the story is more complex than first appears. Specifically, the UK had never lost control of its borders. As anyone who has stood in a long queue at Luton airport knows, the UK borders are very much controlled. But it is certainly true that the number of migrants coming to the UK was on the rise in the decade running up to the referendum. In 2016, an estimated 250,000 citizens from other EU countries immigrated to the UK, and about 117,000 emigrated abroad, giving a figure of 133,000 EU ‘net migration’. Non-EU immigration (over which the UK has full control largely through the operation of the complex and expensive visa system which employers have to manage) has historically been higher but it is now at similar recorded levels as for the EU.

And some parts of the country viewed immigration as a larger problem than others, especially those regions which had witnessed a significant percentage increase in migration. As the Economist noted, where foreign-born populations increased by more than 200 per cent between 2001 and 2014 (for example in areas like Boston in Lincolnshire), a Leave vote followed in 94 per cent of cases.

Free for all?

But it is not true that EU nationals have an unfettered right to move to the UK and live here. In order to qualify for free movement, the individual has to be both a national of a member state and be engaged in an economic activity as: a worker (broadly an employee but also covers those seeking work); a self-employed person; or a provider or receiver of services (self-employed but with a temporary presence in the host state).

These individuals enjoy the right to come to the UK to work provided they are not considered a threat to public policy – in which case they can be denied entry; about 5,000 EU citizens are denied entry to the UK or are deported each year. Unlike most continental systems the UK does not operate a worker registration system for EU nationals (and it is for the reason the government cannot say with certainty how many EU nationals are in the UK). All the EU nationals need is a national insurance number and they are ready to work. But this could be changed quickly if the government were so minded.

Following the Maastricht treaty in 1992, all nationals of an EU member state became ‘citizens of the union’ with rights to move and reside freely in the EU, subject to the limits laid down by EU law. For those who are not economically active, these new rights appeared to offer them greater protection under EU law than they had enjoyed previously. However, recent case law of the Court of Justice of the EU has cast doubt on this. Nevertheless, students and ‘persons of independent means’ – such as the retired with a pension – can enjoy free movement provided they have sufficient resources and sufficient medical insurance.

So those who are economically active such as workers, as well as students and PIMs, enjoy the right to live and work in the UK, as do their family members including those coming from so-called third countries (for example, Pakistan). The rights are fleshed out further in the so-called citizens’ rights directive.

The vote to leave the EU when implemented will, in principle, put a stop to this right to free movement. For many people this is a cause for rejoicing. Many thought it unfair that EU nationals enjoyed significantly easier access to the UK labour market than non-EU nationals who have to comply with significant bureaucratic and financial hurdles before they can come to live and work in the UK. In the absence of a deal, new EU arrivals in the UK after Brexit day may be subject to the non-EU regime.

However, it is becoming increasingly clear that the sudden loss of access to EU labour following Brexit will cause considerable difficulty in certain key sectors including the National Health Service, social care, food processing and transport. For this reason, home secretary Amber Rudd has commissioned research into the effect of Brexit on these sectors. There is now talk that the free movement of persons may continue in more or less its existing form during a transitional period after the UK has left the EU. Could this regime even continue after the transition? Much depends on what the UK’s deal on its future trading arrangements with the EU will look like.

A single market future?

One possibility would be for the UK to stay in the single market by either rejoining the European Free Trade Association and then becoming a member of the European Economic Area agreement, the agreement the EU has with countries like Norway, or by having an agreement of its own which looks rather similar. EEA nationals enjoy the rights of free movement in the same way as EU nationals (so they can move as a worker or self-employed person, as a student or as a PIM) but they are not EU ‘citizens’.

But many would throw up their hands in horror at this outcome – it does nothing to address the perception that immigration needs to be controlled. So are there tools even within the existing single market structures which can be used to monitor and control free movement of EU and EEA citizens? The answer is categorically yes. First, for those who are economically active, the individual must be actually engaged in genuine and effective work. Second, the citizens’ rights directive allows member states to require migrants residing for longer than three months to register with the relevant authorities.  This would allow for some sort of worker registration scheme.

Third, in the case of those coming to look for work, the UK currently gives them six months to find work. They can then be required to leave unless they can show they are continuing to seek employment and that they have a genuine chance of being engaged. Some member states, such as Belgium, are much more assiduous than the UK in seeking the removal of failed EU work seekers.

Fourth, students and PIMs must have sufficient resources. Where there is a reasonable doubt as to whether an EU citizen satisfies this condition the citizens’ rights directive allows member state to verify if this condition is fulfilled. Again, these individuals can be removed from the UK if they do not satisfy this condition. There are signs that the UK is being more proactive in this respect. Recent reports suggest that the Home Office has been using data collected by charities to target EU rough sleepers for deportation.

Furthermore, there are no rules of the EU or the single market that prevent member states outside Schengen from counting people in and out at the border – Britain did this as a member state before Michael Howard abolished them in 1995; nor identity cards – most EU states have them, and even David Davis is considering them for migrants, maybe everyone. Together, they are a pretty expensive package of measures. However, outside the EU it seems likely the UK will have to adopt most, if not all, of these measures anyway. At this junction, our politicians could give the voters what they want in the way of greater controls over migration while at the same time protecting an important legal ‘freedom’ and stay in the single market – and so avoid the economic trauma of a hard Brexit.

Dealing with the Boston ‘problem’

But none of this deals with the more fundamental concerns in areas like Boston where the perception is that migration is changing the identity of the area, while also putting pressure on public services and on other scarce resources like jobs. This issue was in fact identified in David Cameron’s ill-fated negotiations in Brussels in February 2016 and he did negotiate some sort of emergency brake on migration. The language is somewhat obscure but the agreement said that ‘[I]f overriding reasons of public interest make it necessary, free movement of workers may be restricted by measures proportionate to the legitimate aim pursued.’ The agreement then identified ‘encouraging recruitment, reducing unemployment, protecting vulnerable workers and averting the risk of seriously undermining the sustainability of social security systems’ as reasons of public interest. While the Brussels agreement did not survive the UK’s vote to leave, it does provide a template as to what might be possible in the future.

Conclusion

At present there may not be a sufficient head of steam supportive of free movement to allow the approach outlined here but, as the NHS finds itself unable to cope due to staff shortages in the winter, this might prompt some revised thinking. Eliminating the idea of a ‘free for all’ and having the means and the will to police ‘free movement’ could give Britain the best of both worlds.

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Catherine Barnard is professor of EU and employment law at Trinity College, Cambridge. She tweets at @CSBarnard24

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This article is part of a series of pieces for the September 2017 edition of Progress magazine on the United Kingdom’s membership of the single market being ‘In Corbyn’s gift‘. Please check out the other pieces now and support the Labour campaign for the Single Market while you are at it

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