Citizen's rights 'one of the greatest barriers' to consensus on post-Brexit migration policy

Posted On: 
1st August 2017

Disagreements over free movement have re-ignited quarrels between Cabinet ministers, says Dods political consultant, Sabine Tyldesley.

Under current rules, EU passport holders can already legally be required to leave after three months if they do not have a job or fulfil other conditions such as being able to support themselves financially.
Credit: 
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On the 27 July the Home Secretary commissioned the Migration Advisory Committee (MAC) to report on the impact on the UK labour market of the UK’s exit from the European Union.

In her letter to the Committee Amber Rudd outlined “after the UK leaves the EU, free movement will end but migration between the UK and the EU will continue”; a comment which may sit uncomfortably with some Brexiteers – and Brexit voters - who saw the Vote Leave slogan to “take back control” of borders as a commitment to reducing migration, or ending it altogether.

Commentators have for little over a century inconsistently applied different meanings to the word “migrant” in the debate: benefit migrants/ economic migrants versus people Rudd describes as those who “benefit us economically, socially and culturally” – migrant workers.

This divergence is now visible in recent comments by senior Cabinet ministers who cannot seem to agree on whom to keep out.

Several industries stressed their reliance on EU nationals early on: the NHS, the City, the veterinary profession, the agri food sector, the legal sector, the construction industry.

Immigration minister Brandon Lewis made clear “freedom of movement ends in the spring of 2019” while refusing to lay out any details of the new migration system which is to be in place by March 2019.

To that end, a new Immigration Bill will go through parliament next year - to repeal the current EU-derived free movement provisions, but splits remain about how quickly this will apply.

The Chancellor confirmed, to safeguard economic prosperity a transitional arrangement would have to be implemented, for a “fixed period of time”, suggesting it could be in place until 2022.

In line with this,  Amber Rudd already outlined a three phased approach for migration during the Brexit process:

Phase 1 allowing all EU migrants to apply for ‘settled status’ if they held five years’ continuous residence;

Phase 2 being the temporary implementation period, includes a ‘grace period’ for EU citizens to obtain relevant documentation; and

Phase 3 would settle long-term arrangements “ designed according to economic and social needs at the time”. It is currently unclear if these needs would also be determined by the MAC or someone else.

But Liam Fox, the Trade Secretary has now sparked a fresh Cabinet split after rebuffing the claim ministers had agreed on a transitional deal. He went as far as suggesting the continuation of free movement after 2019 would “not keep faith” with the referendum result.

This political quarrel demonstrates the differences in opinion by leading political figures on how to administer Brexit. The question remains if migration should be curbed ‘at any cost’ (to take back control) or whether stances on migration might be softened if it benefitted the economy (vis a vis retaining an economically active migrant labour force)?

Under current rules, EU passport holders can already legally be required to leave after three months if they do not have a job or fulfil other conditions such as being able to support themselves financially. The debate therefore represents the will to “make a success of Brexit” and give force to the referendum result, while remaining pragmatic as to the effects of leaving the EU overall.

Citizen’s rights represent one of the greatest barriers to consensus on migration between the EU and UK negotiators, as a technical note by DexEU revealed, showing the full comparison of EU-UK positions on citizens' rights. Major divergences exist on the issues of EU national posted workers, treatment of family members of migrants, the enforcement of rights and margins of discretion for permanent residence.

The Government recently had to amend entry requirements following a defeat in the Supreme Court regarding non-EEA applicants joining their spouses or civil partners. There are now open questions as to whether the rights protected by the European Convention on Human Rights would be retained under any immigration system for EU nationals as well. EU negotiators have already rejected plans to check the UK criminal record of each EU citizen who applies to the Home Office, calling it impermissible under EU law.

Questions have also been raised as to the capacity of the Home Office to document the details of up to 3.2 million EU citizens who are currently living in the UK. The House of Lords Economic Affairs Committee in a recent report exposed that the Home Office had “extremely poor” mechanisms to evaluate data on migration. They conclude that these fail to provide an accurate number of migrants entering or leaving the country or the number of migrants in work.

The MAC report will bring some clarity as to the requirements from businesses for migrant workers, but will not report until September 2018. Cabinet may have made up its mind on which strategy to take on “migrants” by then.

Dods Monitoring is Europe’s leading provider of tailored political intelligence. Find out more by visiting the Dods website.