EU Free Movement of Persons
The European Union Treaty provides that the free movement of workers is a fundamental freedom. There is a directly enforceable right to come to another member state to exercise an economic activity. The European courts have given expression and substance to this right, which is directly enforceable throughout the EU in local courts. European Union Directives and the concept of European Union citizenship has given extra force and effect to this right.
The right of EU citizens to take up an economic activity in the UK takes precedence over domestic immigration law and controls.
There was an extensive take up of EU freedom of movements rights by economic migrant workers from the former eastern European countries which joined the EU in 2004 (most especially Poland, with 900,000 legally resident UK migrants.
The EU rights include access to social benefits and advantages, including in-work benefits and housing benefits. The UK tax credit system (broadly equivalent to Family Income Supplement in Ireland) is means tested income top-up for working persons based on family need and in particular the number of children in the family.
Although net migration to the UK by EU nationals rose sharply after 2004 until June 2016, it remained lower than net migration to the UK by non-EU nationals. By 2016 almost half of the migration was from the old EU states.
From 2012 until 2016, there’s was rising immigration from the old EU states and Bulgaria and Romania, while immigration from the EU eight states (who acceded in 2004) had steadied. By 2016 UK immigration was approximately 50% of both the old EU fifteen states, with Bulgaria and Romania, and the EU eight states respectively making up a further quarter. Restrictions on Romanian and Bulgarian access to free movement to the UK ended in 2013.
The estimated numbers of UK nationals living elsewhere in the EU in 2015 are:
- Spain, 310,000;
- Ireland, 255,000;
- France 108,000;
- Germany, 105,000.
A significant feature of UK and EU migration is that almost three-quarters of EU migrants in the UK come to work, whereas most UK migrants in the EU are at or near retirement age.
Difference between EU and Third Country Migration
There is a radical legal difference in the status of third-country migrants and EU migrants into the UK. Under UK immigration law, the rights to enter and remain and the applicable conditions are granted by the relevant visa and immigration document and determined by immigration law and practice.
Domestic UK immigration rules require all third-country working migrants to have a visa (in the same way as the Irish rules). They limit the possibility of visas for jobs with an annual income below £30,000.
Under EU law, the migrant’s right to enter and reside in the UK is protected by EU law, and in particular the EU Treaties, which underpin the freedom of movement. These rights cannot be readily changed while UK is a member of the EU and would require a Treaty amendment involving all 28 states’ consent.
Brexit to end Free Movement
A feature of the Brexit vote emphasised by the Prime Minister was the complaints of people out of work or on low wages because of low skilled immigration. A lot of highly educated migrants work in low wage positions. There is significant evidence that migrants from Eastern Europe are on an average doing jobs that are further below their skill capacity than domestic workers.
Many positions that require significant skills and qualifications are low paid and would not meet the general restrictions reflected in the salary level reflected in present UK immigration rules. The effect of the financial crisis was to reduce real wages. Witnesses to parliamentary committees suggest that the effect of migration on low paid jobs may not be as significant as believed, due to the effect of the national living wage and the national minimum wage.
Given the centrality of this aspect of European Union law on the outcome of the “Brexit” referendum, it is likely that any new agreement will involve significant controls on EU economic immigrants. The UK Prime Minister has said that the message from the public during the referendum campaign was clear: Brexit means control of the number of people who come to Britain from Europe.
If no withdrawal agreement, making new arrangements is entered by Brexit date 29th March 2019), then EU nationals would become third country nationals in the UK, and UK nationals would become third country nationals in the EU. This is subject to the preservation of the UK Republic of Ireland Common Travel Area arrangements, which are accepted by both the EU and the United Kingdom to be a priority.
Assess to State Benefits
Free movement encompasses the right to live and work in the state under conditions of equal treatment relative to host state nationals. To some extent, this includes the benefits system. The Court of Justice has interpreted the concept of social security benefits widely. Non-EU nationals and dependents do not have access to public funds, subject to exceptions until they obtain permanent residency / indefinite leave to remain.
EU Legislation provides for special non-contributory cash benefits. These benefits are noncontributory in the sense that they are not based on personal contributions but are financed by general taxation. They are special because their purpose is equivalent to that of the social security system.
The access to housing benefits and tax credits is a very significant factor in the attractiveness of UK low-paid low-skill jobs.
What the UK Seeks
The UK government has listed “bringing back control of decisions over immigration” to the UK as well as its four overarching strategic objectives in the Brexit negotiations, and the negotiations for a future relationship with the European Union.
In common with the agreement in relation to goods, the UK and the EU will find themselves in the unique position of starting with full freedom and negotiating backwards to a more restrictive position. This could (in theory) lead to a position where EU nationals are deemed third party country nationals in the UK and vice versa. It is more likely to lead to a reciprocal and preferential arrangement in relation to UK-EU economic, short of free movement as now exists, but close to it in some or even many respects.
The UK is seeking reciprocal preferential arrangements with the EU under a new agreement. This is seen as important in the context of the preservation of other EU type freedoms for UK nationals, in particular in relation to access to the single market and the free movement of goods and services.
The UK government has indicated that the unanimous view of public and private sector employer groups is that the UK’s non-EU work permit system should not be applied to EU nationals, as it would disproportionately affect employers’ ability to sponsor EU workers and would result in labour shortages.
The UK has indicated that it wishes to retain access to high skilled immigration, which it welcomes. It indicates that low skilled immigration is of particular concern and that it should reduce dependence on low-cost migrant labour.
Any new agreement on migration is likely to be reciprocal. The UK seeks to put in place immigration for EU nationals and bring it fully under domestic control. The UK will equally have an interest in how its nationals fare under the EU’s immigration regime post-Brexit.