Legal Briefing

Brexit: the immigration implications

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Immigration | 16 June 2016

As the campaigning continues for the forthcoming Referendum on whether the UK should leave the European Union (EU), immigration (and its links with national security) is one of the central topics in the debates. Aside from the headline grabbing national security concerns (‘Brexit could trigger World War Three warns David Cameron’ in the Mirror on 10 May 2016 was particularly special), particular focus has been placed on the UK’s immigration policy, the consequences of high net migration and the impact of the EU’s freedom of movement provisions.

Boris Johnson has accused David Cameron of ‘corroding’ public trust over immigration targets, and it could be argued that the political impetus to hold the referendum at all was driven by public concern over high net migration figures. Indeed, David Cameron’s efforts at securing a freeze on in-work benefits for EU nationals was intended as a deterrent to EU migration and to help reduce net migration in the UK (currently running at over 300,000 per year, with around half from the EU).

While it is not possible to predict with accuracy what the net migration figures will look like in the future, those campaigning to leave the EU claim that net migration would be reduced if the UK was no longer a member state because we would no longer be subject to the rules on free movement. However, in reality the UK would not simply refuse entry to all EU nationals and to imply this is misleading. It also ignores the benefits to the UK of migration both from EU and non-EU countries (for example, by increasing the number of individuals paying taxes and supporting economic growth).

Freedom of movement

The free movement of workers is a founding principle of the EU, established in the Treaty of Rome and developed in subsequent treaties to include all EU citizens. Directive 2004/38/EC (the Directive) sought to amalgamate the various sources of law on these rights, including case law from the European Court of Justice (ECJ), to provide clarity on EU nationals’ rights of free movement within the EEA (consisting of EU member states and those countries within the European Free Trade Association).

The provisions of the Directive apply to all EU nationals, whether dual nationals or otherwise, together with their qualifying family members. It provides that EU citizens are entitled to travel and work freely within the EU and that they are protected from discriminatory treatment based on nationality (unless accession arrangements apply). This affords EU nationals the same working rights and protections as those to which a domestic national would be entitled (for example the minimum wage, which remains a matter to be decided by nation states rather than EU institutions).

The purpose of the free movement provisions is to support free trade among EU member states, enabling businesses access to a wider pool of talent to support commercial growth.

The Directive means that EU member states cannot impose visa or work permit requirements on nationals of other EU member states. These individuals are permitted unrestricted entry to all EU member states, and to remain in those countries for up to 90 days. After 90 days they must be exercising what is commonly described as ‘treaty rights of movement’ – ie they must be in that host state for the purposes of free movement, which is primarily for economic purposes (ie excluding purely tourism).

After the initial 90-day period, these individuals should be economically active, whether as an employee, self-employed, self-sufficient, a student or retired. That would imply that a host state can require an individual who is not economically active to leave after 90 days, although in practice it is not that simple. In order to do this, the host state would need to know that the individual is in the country, what date they entered, where they are living and assess their activities. The equality provision of the Directive does not permit such an assessment to be made of EU citizens if one is not required of domestic citizens. In practice, therefore, the restriction of 90 days is difficult to implement. However, in order to apply for permanent residence (which all EU nationals who have exercised free movement rights for five years in a single host state are entitled to do, by virtue of the Directive), evidence of economic activity must be provided covering the entire five-year qualifying period.

The purpose of the free movement provisions is to support free trade among EU member states, enabling businesses access to a wider pool of talent to support commercial growth. The ECJ has frequently commented in its adjudications on questions of interpretation of the Free Movement Directive that restricting these rights could potentially deter an EU national from exercising free movement, in conflict with the founding principles of the Union.

The most significant factor perpetuating UK concern about net migration was the enlargement of the EU in 2004, which was the largest single expansion to date, following the accession of the A8 countries from Eastern Europe (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia). Accession restrictions on free movement were placed by many EU member states on nationals from the new EU countries, although the UK allowed full free movement rights. Statistics show that in excess of 650,000 Polish nationals registered as workers in the UK between May 2004 and June 2007.

As a result of this large migration into the UK, the negative perception was formed that the influx of European nationals is driving down wages in a ‘race to the bottom’. This reflects a very narrow view of the UK labour market and does not apply across all industries and sectors. Indeed, it merely reflects the ‘free market’ principles of western commercial markets, albeit with the balance appearing in favour of commerce.

The benefit to business goes beyond simply saving money with lower worker salaries: businesses frequently need individuals with specialist knowledge or training, without which progress and growth can be stifled. Where the host nation does not have the required skill and knowledge to support this, frequently such individuals are found from within the EU. The benefits of business growth to the wider UK economy are clear and should be supported.

Immigration rules for non-EU citizens

For all non-EU nationals (or their family members) seeking to enter or remain in the UK for longer than six months, an application must be made under the UK’s Immigration Rules. This includes family-based applications (applying to remain with a British spouse or child); working categories (such as those under the points-based system in Tier 1, Tier 2 or Tier 5); students (primarily under Tier 4); ancestry or right of abode, etc. The criteria of each visa category must be met and the required documentary evidence provided (which can include financial requirements, evidence of employment, relationship, etc). Entry clearance or leave to remain will only be granted if the applicant meets these strict criteria and produces the required evidence.

The approach of the Home Office to non-EU nationals heavily contrasts with the experience of the EU nationals relying on free movement. It is a more restrictive body of law, and is frequently made more restrictive as the government seeks to convince its critics that it has an answer to ever increasing net migration.

Implications of Brexit on EU migration

While there is much speculation on how Brexit might affect EU migration to the UK and what the social and economic consequences of such changes might be, the implications of Brexit in this regard are uncertain.

For more than a decade, EU membership has granted significant work and residence rights for EU citizens. EU citizens have been able to live and work legally in the UK without having to meet any of the criteria that non-EU nationals currently have to comply with, such as having a skilled job or qualifying family relationship. Examples of other benefits EU citizens gained include visa-free travel to the UK and co-operation on asylum. The levels of EU migrant integration have come so far that a UK departure will have profound legal, economic, social and political implications irrespective of what type of agreement is eventually reached. The degree to which the UK will maintain any of these policies after Brexit depends on what kind of EU-UK relationship replaces EU membership – and so far there is little indication as to what this may look like.

One possibility would be for the UK to negotiate an association agreement with the EU. This would allow the UK to retain full access to the single market. It would consist of an arrangement similar to that of Iceland, Liechtenstein or Norway. These non-EU countries, as a consequence of membership of EFTA (European Free Trade Association), have implemented free movement provisions with the EU. If the UK were to negotiate this type of agreement, work and residence rights for EU citizens would remain in place in the UK and consequently there would be no new restrictions on EU migration.

In the event of Brexit, it is entirely possible that EU nationals would be required to apply for visas in order to travel to the UK (and vice versa) for short-term business or tourism purposes.

Alternatively, if an agreement is reached between the EU and the UK which does not involve the free movement of people between the EU and the UK, the UK will become free to impose selection criteria on EU citizens. In this case, the selection criteria are likely to be the same as the current points-based system rules for non-EU citizens – which requires migrants to demonstrate they have a skilled job, a spouse or partner in the UK or a place to study with a registered university or college. Many EU citizens are currently working in jobs that do not meet the current skills criteria and therefore they would not meet these requirements.

There has been an increase in EU nationals, who have exercised treaty rights by working, studying or being self sufficient in the UK for at least five years, applying for permanent residence in the UK. Should the UK vote to leave the EU in the forthcoming referendum, the number of EU applicants for permanent residence is likely to increase. It is unclear at this stage what the position will be for those EU nationals who have not exercised treaty rights for the full five years required at either the time of the referendum or the potential exit.

As it is uncertain what immigration policy will be should the UK leave the EU, its effects can also not be predicted with any accuracy. Further, regardless of the policy framework in place, migration levels are difficult to forecast. Existing evidence suggests that the economic impact of migration overall tends to be low but the impact of a reduction in EU migration would be unevenly distributed and there is insufficient data to draw strong conclusions.

Consequence of Brexit on British citizens abroad

According to the United Nations, over a million British nationals live in Europe, mainly in Spain, France and Ireland. British citizens residing in the EU currently enjoy access to the right to reside in their country of choice, to the open job market and to healthcare and educational systems. They are also able to live in EU member states with their families, buy properties, run businesses or simply enjoy their retirement.

Should the UK vote to leave the EU, it is uncertain how other EU member states will change their policies towards British citizens residing abroad, who would be affected by an end to free movement in the absence of EU-wide agreements, and whether they will treat British citizens as other migrants from outside the EU.

If British citizens had to meet EU countries’ normal immigration criteria, the rules and policies would vary from country to country. Bilateral immigration agreements with specific EU countries might be possible, but these would take many years to be negotiated and finalised. There are fears that the British immigrants may be asked to pay additional fees or face stricter immigration rules.

There are particular worries for British citizens who retired abroad and who may not retain the right to remain in their country of choice after Brexit. Consideration should also be given to those who reside in other EU countries as self-sufficient persons or entrepreneurs as some countries (similarly to the UK) require a migrant to have a job in the country in order to stay.

Another possible outcome of Brexit would be the ability for EU countries to deport British citizens living or visiting abroad who break the law. This outcome could apply to serious offences as well as trivial ones, such as drunk and disorderly behaviour. It is worth pointing out that a deportation from one country could affect any immigration application in the future – to the EU or other countries worldwide.

Visitors

The UK is not a signatory to the Schengen Agreement which provides for freedom of movement without border controls in continental Europe. Therefore, despite the media rhetoric, we do control our own borders. That said, EU citizens are not required to obtain entry visas for other EU countries. In the event of Brexit, it is entirely possible that EU nationals would be required to apply for visas in order to travel to the UK (and vice versa) for short-term business or tourism purposes, unless visa waiver programmes can be negotiated and implemented.

As visitors (whether through a formal visa application or visitor status granted upon entry), these individuals will have to comply with the restrictions imposed by the visitor visa route, such as time limits and the inability to carry out any productive work. This may prove to be a considerable disruption to businesses who rely on transfer of staff between EU countries and will also have a detrimental effect on the tourism industry in the UK.

Conclusion

Speculation as to the impact of the UK leaving the EU is just that – speculation. We have seen much campaigning from both sides, together with the usual political mud-slinging, but there seems to be a general criticism about the lack of positive facts, one way or another. One thing is clear, the process for leaving the EU will be hugely complicated, with new trade agreements to be negotiated and the legal framework manoeuvred. A UK exit is likely to take many years to finalise, involving complex changes to the UK legal system as well as social and political reform. UK immigration laws would certainly experience repeated changes as new agreements with EU member states are (hopefully) agreed, but this would be only once new trade agreements (if any) are finalised. Even if the UK does exit and we see the drastic reduction in net migration that has been the focus of UK immigration policy for the last few years, the negative economic impact may finally change the government’s focus of trying to keep everyone out and convince the public that immigration is, in fact, a good thing.