Brexit: UK-EU movement of people Contents

Chapter 2: The UK’s objectives

41.In this chapter we explore what ‘controlling’ immigration of EU citizens to the UK might mean in practice. We also examine how different interpretations of what the Government’s objective implies could affect what, if anything, there is to negotiate with the European Union after Article 50 is invoked.

What is to be achieved by ending free movement?

Sovereignty

42.The Prime Minister has said that the UK “will do what independent, sovereign countries do: we will decide for ourselves how we control immigration”.43 The most natural reading of her words is that the aim of ending free movement is to restore full sovereignty over the UK’s immigration policy in respect of EU nationals. The Prime Minister’s remarks also appear to imply that the UK would devise and adopt a domestic policy governing the circumstances in which EU citizens are entitled to be admitted to the UK for long-term stays—a domestic policy that would replace the relevant provisions in EU law.

43.The evidence we took from Ministers was consistent with this interpretation, as is the Government’s White Paper.44 The Rt Hon David Jones MP, Minister of State at the Department for Exiting the European Union, told us that “it is our ambition to regain control of migration. That, of course, means not only the apparatus by which that control is exercised but the legislative framework—in other words, control residing here at the United Kingdom Parliament rather than in the European Union.”45 He added that the aim was to “recover control of migration so that migration policy is … developed by the British Government and approved by the British Parliament”.46

44.Although Mr Jones indicated that the Government’s objective would be “to ensure that we recover control over our borders”,47 his colleague Robert Goodwill MP, Minister of State at the Home Office, pointed out that “this perception that we do not control our borders … is not a correct perception.”48 He emphasised that the UK—which does not participate in the Schengen border-free area—does control its own borders, and operates border controls that involve checking everyone, including EU nationals, arriving from continental Europe:

“We carry out 100% checks on all scheduled passengers arriving at the border to confirm identity, nationality and eligibility for entry into the UK, and carry out checks against police and security immigration watch lists to identify people of concern. We therefore can and do refuse EU nationals entry to the UK. Between 2010 and September 2016, our Border Force officers have refused entry to nearly 9,000 EEA nationals.”49

45.Mr Goodwill also noted that EU nationals can only stay in the UK “if they are exercising a treaty right: a right to work, study or to live independently”, and that where immigration enforcement officials find EU nationals who are not exercising treaty rights (for example, they are destitute) those individuals are liable to be removed to the country from which they came.50

46.The Institute of Directors told us that the UK had never enforced some of the restrictions available under the existing free movement rules.51 Exit checks at UK borders were re-introduced in March 2015, with a view to providing “the most comprehensive picture we have ever had of whether those who enter the UK leave when they are supposed to”.52 However, Mr Goodwill told us that at the moment, the Government is not confident that the data obtained from those checks are “sufficiently robust or finessed to be used effectively”.53

Numbers

47.Making EU citizens subject to immigration rules devised in the UK may or may not reduce the number of EU citizens moving to the UK: the outcome would depend on the effect those controls have on the number of people coming to the UK. The rules for non-EU immigration, which are devised by the UK Government and approved by the UK Parliament, have until end June 2016 been associated with more immigrants arriving in the UK from outside the EU than from within the EU (see Figure 1).

48.Whether any new controls on EU immigration introduced by the Government should aim to reduce the number of EU migrants coming to the UK is therefore a distinct policy question.

49.Migration Watch UK told us that the Government’s objective should be to achieve “a substantial reduction in net EU migration”. Their chairman, Lord Green of Deddington, suggested that “if we fail to achieve that, we will have some very angry Brexiteers and some very angry Remainers, who will ask why we were put through all this for really very little impact on one of the major considerations before the electorate”.54

50.The Prime Minister has indicated that the Government “will retain its intention of bringing net migration down”, and noted that “one part of migration we have not been able to put controls on so far is migration from the European Union”.55 She has pledged to “get control of the number of people coming to Britain from the EU”.56

51.Mr Goodwill told us that “increasing the way we can control our borders will enable us to make further progress in achieving that objective of reducing net migration to the tens of thousands”.57 However, while Ministers saw the referendum result as providing “the opportunity to control the numbers that come here”,58 they were equivocal about what use they planned to make of that opportunity.

52.According to Mr Goodwill, “the point is that while we are members of the European Union, we have none of those tools at our disposal should we wish to limit or control the numbers coming in.” He added that the Government “do wish to control the numbers coming in”.59 But he distanced himself from the notion of “limits”,60 and told us that it would be “a mistake to read across from our wish to control numbers to say we would not be in a situation where, if we needed to bring people in, we could. The difference is that we can, as we can already with people from outside the EU, control those numbers.”61

53.Mr Goodwill indicated that the UK would in future “be able to control the numbers coming from Europe”, but also that “the way that we do that will take into account the needs of the UK economy”.62 He emphasised that controlling numbers “is not just about stopping people coming here; it is also about, for example, understanding how different schemes could be in place to encourage people to come here”.63

Characteristics

54.A further policy question is whether the Government should aim to control the characteristics of EU migrants admitted for long-term stays or the type of employment they are entitled to take up. The Prime Minister has made reference to people finding themselves “out of work or on lower wages because of low-skilled immigration”.64 The Chancellor of the Exchequer, Rt Hon Philip Hammond MP, has suggested that public concern about levels of migration relates to “people competing for entry-level jobs with people in the UK”65 and indicated that the Government wish to reduce “the current dependency on low-cost migrant labour”.66

Constraints

55.In considering how best to exert control over EU migration in future, there are two principal constraints that may influence the Government’s approach.

Supporting the UK labour market and economy

56.The Chancellor has emphasised that “as we approach the challenge of getting net migration figures down to the tens of thousands, it is essential that we look at how we do this in a way that protects our economy and the vital interests of our economy”.67 He has said that the Government “do not want to find UK firms suffering from a lack of labour supply”, and argued that “just because you have a system of controlling migration, that does not mean you have to use it to slam all doors shut”.68

57.The Prime Minister has emphasised that the UK “will always want immigration, especially high-skilled immigration … from Europe”, and that immigration can help in “filling skills shortages” and “delivering public services”.69 Consistent with this, Ministers appear to envisage that both high- and low-skill migration from the EU will continue to some extent. The Chancellor has said that he “cannot conceive of any circumstance in which we would want to impede or prevent the flow of highly skilled, highly paid people”.70 This echoes his evidence as Foreign Secretary to the European Union Select Committee, before the referendum, when Mr Hammond commented: “I do not think that anyone is contesting the need to attract highly-skilled people to do highly-skilled jobs”.71 Addressing concerns about the impact on specific sectors of restricting low-skill migration from the EU, Mr Goodwill told us that “Brexit gives us the opportunity to have an off-the-peg immigration policy that addresses many of the concerns those in the care sector, the health service and in agriculture have expressed”.72

58.More generally, Ministers have indicated that they are open to taking different approaches to different sectors.73 Mr Goodwill pointed out that the UK already operates “shortage occupation lists and resident [labour] market tests for non-EU [nationals]”, and that it has in the past operated a seasonal agricultural workers scheme, “which is another way of recruiting particular types of people”.74 By contrast, the Government has ruled out a devolved or regional approach: “I do not believe either a regional devolution or indeed a centrally managed regional immigration policy would work in the United Kingdom”, Mr Goodwill told us.75

Reciprocity

59.Another issue the Government will need to consider is how any future regime for admitting EU nationals to the UK for long-term stays might affect UK citizens’ ability to move in the opposite direction. Mr Goodwill appeared to envisage that any future arrangement would be reciprocal: “whatever agreement we have with the European Union will be a two-way agreement. It will apply to EU citizens wishing to come and work here, and there will be parallel negotiations about British people who want to live, work or study in the European Union”.76

60.The Government indicated that it would be seeking to protect the rights currently enjoyed by UK citizens as a result of EU free movement rules as far as possible:

“We have a large number of British people who want to retire to Spain. We need to make sure that those people’s rights can be protected, that they will be given the benefits that they currently have as far as possible, and that we have a situation where freedom of movement for British people is secured, within the overall objective of controlling the numbers that come to the UK.”77

Conclusions

61.The Government’s primary objective in putting an end to the free movement of persons appears to be restoring sovereignty: ensuring that immigration rules for EU nationals are devised and adopted in the UK. Although it is seeking to bring the policy levers back under national control, how it plans to use those levers to regulate immigration from the EU is less clear.

62.In particular, the Government has thus far stopped short of saying it intends to limit or reduce net migration from the EU, although this can arguably be implied from the ‘tens of thousands’ target for net migration overall. We welcome the indication from the Government that its approach to regulating EU immigration will take into account the needs of the UK economy.

63.Until end June 2016, migration to the UK from outside the EU was consistently higher than EU migration, even though the relevant policy levers are under national control. Restoration of national control over EU migration may or may not, therefore, deliver a reduction in overall net migration. Experience in recent years suggests that sharp fluctuations in net migration are more likely to result from other factors, such as the performance of the UK economy in both absolute and relative terms.

64.We strongly support the Government’s intention to protect the entitlements that UK nationals currently enjoy as a result of EU free movement rules, but how realistic that objective is will depend on the precise manner in which the UK proposes to reform the equivalent entitlements enjoyed by EU nationals, especially those looking to come to the UK to work.

Implications for Brexit negotiations

65.How the Government interprets its own stated objective of obtaining “control of the number of people coming to Britain from the EU”78 has implications for the conduct of negotiations on the UK’s future relationship with the EU.

66.If sovereignty is the Government’s primary objective, and it wishes to replace the principle of free movement of persons with UK immigration rules for EU nationals, those future immigration rules need have no grounding in a treaty with the EU—they could be enacted unilaterally by the UK, taking effect from the moment the UK leaves the EU. Jonathan Portes noted that the Prime Minister’s remarks in her party conference speech in October 2016 could be read to imply that a future system would be “entirely under our control, we can change it whenever we like, we can adjust the numbers up and down and the rules back and forth, and there will be no treaty or legal basis for any new system”.79 On this basis, “whether we or the EU are going to negotiate at all” is open to question.

67.In practice, it seems likely that the UK will have an interest in how UK nationals will fare in the EU’s immigration regime post-Brexit—consistent with the Government’s stated intention to protect UK citizens’ current entitlements under free movement rules as far as possible.80 That interest may be reciprocated by the EU-27, leading to a negotiation.81

68.A negotiation also seems the more likely outcome to the extent that, in any negotiations on a UK-EU Free Trade Agreement, concessions on this issue may be traded against concessions in other parts of the negotiation (such as on access to the Single Market) that would be enshrined in the agreement. Stephen Booth, of Open Europe, noted:

“Most sophisticated and modern free trade agreements, for example the Canadian deal that has been agreed with the EU, include provisions on Mode 4 services, which is effectively the free movement of labour to provide services … Given the closeness of the UK and the EU, you can see that being developed further, into perhaps a quite highly developed chapter on free movement of labour.”82

69.Marley Morris, of the Institute for Public Policy Research (IPPR), also made the link to negotiations on access to the Single Market, and suggested there were “two fundamental schools of thought”:

“One is that we do not really need to negotiate on immigration at all. We just need to set out our policy on immigration, go to the EU and say, ‘This is our policy and what we want to do’, and then we make sure that all the other negotiations work around that … The second school of thought says, ‘Actually, immigration is up for negotiation … we want to keep as much as possible our membership of the Single Market, perhaps partial membership of the Single Market as in the case of Switzerland, but we want those kinds of close relationships that we have now and so we are prepared to find some kind of compromise on immigration policy in order to keep those relations.’”83

70.The Prime Minister has indicated that the UK will not be seeking membership of the Single Market but will instead be seeking “the greatest possible access to it through a new, comprehensive, bold and ambitious Free Trade Agreement”, which “may take in elements of the current Single Market arrangements in certain areas”.84 This raises the prospect that just as the UK and the EU may find themselves negotiating a Free Trade Agreement in reverse—starting from a position of full integration, and seeking to maintain aspects of the status quo while reducing integration in some areas85—so on free movement of persons, the UK and EU may find themselves negotiating on which elements of the current arrangements are to be dismantled.

71.The Minister, Mr Jones, was in no doubt as to the outcome he expected: “It is inevitably going to be the case that there will have to be an agreement contained in whatever treaty is concluded at the end of the negotiations as to the issue of migration flows”.86 He anticipated that in view of the link between the free movement of persons and access to the Single Market, “not only will we be keen to address this issue, but obviously the continuing 27 will be keen to address it too.” The Minister consequently predicted that “the issue of migration will figure strongly in the negotiations and the ultimate treaty”.87

72.As for who the UK will be negotiating with, Mr Jones noted that under Article 50, “the Council, comprising the 27 continuing states, will be responsible for concluding the agreement with the United Kingdom, and that of course will be subject to the consent of the European Parliament”. He nonetheless noted that “this is an issue that has different weight in different member states”, citing Romania as an example, and indicated that “we, for our own part, will be entirely happy to engage both with Mr Barnier and his teams, or, should it be necessary, with individual member states”.88

73.Stephen Booth predicted that the EU-27 would be “pretty determined to negotiate on this issue as a bloc”, which was in any event what the institutional framework would require. He warned that trying to “pick off countries that we want a deeper relationship with” would be a “dangerous game for the UK to play, particularly at this stage in negotiating our departure”. He nonetheless predicted that Ireland would be “the big exception”, in view of the Government’s commitment to maintaining the Common Travel Area.89

74.Camino Mortera-Martinez, of the Centre for European Reform, suggested that alternative scenarios were also conceivable, for example that negotiations might lead to “some sort of baseline, basic rights for all the EU-27, and then you have supplemental bilateral agreements in which, put in simple terms, you say, ‘I send you my pensioners and you send me your students’.” She anticipated that the UK would have to work out “what other countries are interested in”, citing Spain as an example: “[Spain] is not going to be interested in sending pensioners to Britain; it will be interested in sending students.”90

75.Whether any negotiation on future migration flows takes place before or after the UK’s withdrawal is open to question. Indeed, we note in this context that the precise scope of negotiations under Article 50 is likely to be one of the very first issues that will require negotiation between the UK and the EU-27. David McAllister MEP, of Germany, told the Select Committee in Strasbourg on 18 January 2017: “Brussels will focus on five major issues: disengagement of the UK from the EU budget; catering for the acquired rights of EU citizens; relocating the EU agencies; disentangling the UK from EU international treaties; and establishing any necessary transitional arrangements.”91 Sir Ivan Rogers, in evidence to the House of Commons European Scrutiny Committee, offered a similar assessment of the five issues the EU-27 would expect to cover in a withdrawal treaty, contrasting it with the UK’s reading of Article 50. He argued that “everything you need to decide going in the withdrawal treaty is a function of where you are going to end up”, and that negotiations about withdrawal and negotiations about the future relationship would inevitably collide.92

76.Mr Jones told us that “even if the negotiations were to fail, Article 50 provides that at the end of the two-year period prescribed in the Article we would simply leave the European Union. That means of necessity control would reside with this Parliament”.93 He highlighted the Government’s intention to introduce a repeal bill that would have the effect of absorbing EU-derived law into UK law, adding that it would no doubt be revisited very quickly, and that “whatever regime exists at present would be replaced by a British regime developed by the British Government and approved by the British Parliament”.94 In its White Paper on The United Kingdom’s exit from and new partnership with the European Union, the Government announced that it expects to bring forward a separate bill on immigration, and indicated that there “may be a phased process of implementation to prepare for the new arrangements”.95 We note that there is a difference between a phased process of implementation for an agreement that has already been struck, and transitional arrangements intended to bridge the gap between free movement as it exists today and new arrangements yet to be agreed. In view of the link between the free movement of persons and access to the Single Market, it is conceivable that new arrangements for future migration between the UK and the EU will not be finalised until the contours of a Free Trade Agreement (FTA) have taken shape. This Committee has previously concluded that it would be “impossible to agree [an FTA] within two years”.96 Transitional arrangements could therefore be required if the UK were to leave the EU while negotiations on an FTA are still underway, or yet to begin.

Conclusions

77.Just as the UK and the EU may find themselves negotiating a Free Trade Agreement in reverse—starting from a position of full integration, and seeking to maintain aspects of the status quo while reducing integration in some areas—so on free movement of persons, the UK and EU may find themselves negotiating on which elements of the current arrangements are to be dismantled.

78.At one end of the spectrum of possible outcomes, this could lead to the dismantling of the current arrangements in their entirety, so that EU Member States treat UK nationals in the same way they treat third-country nationals and vice-versa. At the other, it could lead to new, reciprocal and preferential arrangements for UK-EU migration. These may fall short of free movement as it exists today but come close in some or even many respects.

79.The Government has told us that it expects to negotiate with the EU as a bloc on this issue, and seems likely to pursue preferential arrangements for UK-EU migration after the UK has ceased to be a member of the EU. We support this objective. However, it is not self-evident that the negotiation envisaged by the Government will be within the scope of Article 50. Indeed, the precise scope of those negotiations is itself likely to be a matter for negotiation between the UK and the EU-27. Nor is it self-evident that current rules on the free movement of persons can be fully absorbed into UK law in the Great Repeal Bill or a separate immigration bill, since UK nationals’ current entitlements require reciprocal commitments from other countries. This raises the prospect that, if negotiations under Article 50 were to conclude without an agreement on this issue, UK nationals would become third-country nationals for the purposes of EU law and the domestic immigration rules of EU member states once the UK leaves the EU.

80.In view of the link between the free movement of persons and access to the Single Market, it is conceivable that new arrangements for future migration between the UK and the EU will not be finalised until the contours of a Free Trade Agreement (FTA) have taken shape, which could take longer than the two years provided for in Article 50 TEU. Transitional arrangements could therefore be required if the UK were to leave the EU while negotiations on an FTA are still underway, or yet to begin.


43 Theresa May MP, Speech to the Conservative Part Conference on Brexit, 2 October 2016: https://www.politicshome.com/news/uk/political-parties/conservative-party/news/79517/read-full-theresa-maysconservative [accessed 28 February 2017]

44 HM Government, The United Kingdom’s exit from and new partnership with the European Union, Cm 9417, para 5.4

55 Oral evidence taken before the House of Commons Liaison Committee, 12 January 2016 (Session 2015–16), QQ 54–55 (Theresa May MP)

56 Theresa May MP, Speech on The Government’s negotiation objectives for exiting the EU, 17 January 2017: https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech [accessed 28 February 2017]

64 Theresa May MP, Speech on The Government’s negotiation objectives for exiting the EU, 17 January 2017: https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech [accessed 28 February 2017]

65 Oral evidence taken before the House of Commons Treasury Committee, 19 October 2016 (Session 2016–17), Q 60 (Philip Hammond MP)

66 Oral evidence taken before the House of Commons Treasury Committee, 12 December 2016 (Session 2016–17), Q 340 (Philip Hammond MP)

67 Oral evidence taken before the House of Commons Treasury Committee, 19 October 2016 (Session 2016–17), Q 1 (Philip Hammond MP)

68 Oral evidence taken before the House of Commons Treasury Committee, 12 December 2016 (Session 2016–17), Q 333 (Philip Hammond MP)

69 Theresa May MP, Speech on The Government’s negotiation objectives for exiting the EU, 17 January 2017: https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech [accessed 28 February 2017]

70 Oral evidence taken before the House of Commons Treasury Committee, 12 December 2016 (Session 2016–17), Q 335 (Philip Hammond MP)

71 See oral evidence taken before the European Union Select Committee, 26 January 2016 (Session 2015–16), 167.

78 Theresa May MP, speech on the Government’s negotiation objectives for exiting the EU, 17 January 2017: https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech [accessed 28 February 2017]

80 See para 56.

81 There are also important bilateral aspects to such a negotiation, e.g. with Ireland in respect of the Common Travel Area, and with Spain in respect of the border with Gibraltar, as indicated in para 8.

84 Theresa May MP, speech on the Government’s negotiation objectives for exiting the EU, 17 January 2017: https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech [accessed 28 February 2017]

85 European Union Committee, Brexit: the options for trade (5th Report, Session 2016–17, HL Paper 72), para 160

91 Oral evidence taken before the European Union Select Committee, 18–19 January 2017 (Session 2016–17), Q 9

92 Oral evidence taken before the House of Commons European Scrutiny Committee, 1 February 2017 (Session 2016–17), 8

95 HM Government, The United Kingdom’s exit from and new partnership with the European Union, Cm 1497, para 5.4

96 European Union Committee, Brexit: the options for trade (5th Report, Session 2016–17, HL Paper 72), para 162




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