The Prime Minister has said that “The message from the public before and during the referendum campaign was clear: Brexit must mean control of the number of people who come to Britain from Europe” (Lancaster House, 17 January). In order to achieve this, the Government has undertaken to put an end to the free movement of persons, one of the four freedoms underpinning the Single Market.
In this report, we examine what the Government’s pledge to deliver control over EU immigration might mean in practice. The free movement of persons is a legal construct, and its foundations are in EU law. It is set to end automatically when the UK ceases to be a member of the EU bound by EU law.
The policy choice facing the Government will be about what aspects of the free movement of persons—if any—it would like to see reproduced in any future bilateral agreement with the European Union.
If negotiations under Article 50 were to conclude without an agreement on this issue, the default outcome is that UK nationals would become third-country nationals for the purposes of EU law and the domestic immigration rules of EU member states. For its part, the UK could place EU immigrants on the same footing as non-EU immigrants. At the other end of the spectrum of possible outcomes, negotiations could lead to new, reciprocal and preferential arrangements for UK-EU migration falling short of free movement as it exists today but coming close in some or even many respects.
The Government says it will be pursuing a “two-way agreement” with the EU regarding future migration flows. We support this objective, and judge that offering preferential treatment to EU nationals compared to non-EU nationals in the UK’s future immigration regime could increase the likelihood of securing reciprocal preferential treatment for UK nationals in the EU. It could also improve the prospects of achieving the UK’s objectives on access to the Single Market. In view of the read-across to these other goals, we consider it vital that the Government should not close off policy options on future regulation of EU immigration ahead of negotiations with the EU-27. In view of the link between the free movement of persons and access to the Single Market, transitional arrangements could be required if the UK left the EU while negotiations on a Free Trade Agreement were still underway, or yet to begin.
The Government’s primary objective in putting an end to the free movement of persons is restoring sovereignty: ensuring that immigration rules for EU nationals are devised and adopted in the UK. The restoration of national control over EU migration may or may not deliver a reduction in overall net migration. We note that until June 2016, net migration to the UK from outside the EU was consistently higher than EU migration, even though the relevant policy levers are already under national control.
Given that almost three-quarters of EU migrants to the UK come to work, or look for work, we anticipate that any new controls may focus on those categories, and take the form of a work permit system. However, the unanimous view of the public and private sector employers’ groups from whom we took evidence was that the Government should not apply the UK’s non-EU work permit system to EU nationals. They warned that this would disproportionately affect some employers’ ability to sponsor EU workers, and could result in labour shortages.
The composition of UK migration to the EU differs from that of EU migration to the UK, with the age profiles of UK citizens who are long-term residents in other EU countries suggesting that a larger proportion are retired or nearing retirement. A strictly reciprocal two-way agreement may not, therefore, be attractive to the EU-27. Restoring aspects of the equal treatment dimension of free movement, that is to say, the right to equal treatment compared to nationals of the host State, in any future agreement would be particularly significant for prospective migrants in non-work categories (such as UK nationals retiring in the EU or EU nationals studying in the UK).
To the extent that the Government has set out a direction of travel for how it wishes to manage migration of EU nationals in future, that vision seems to consist of three elements: first, that high-skilled immigration will remain welcome; second, that low-skilled immigration is potentially of concern; and third, that the UK should seek to reduce dependence on low-cost migrant labour. Each of those elements merits closer scrutiny, and we recommend that the Government should focus on improving its evidence base before building policy on these foundations.
The evidence base currently available to policy-makers responsible for devising a future framework for UK-EU migration is incomplete, and in some cases insufficiently reliable. This is an unsatisfactory basis from which to start developing policy, and also complicates scrutiny of the policies that may result. Different measures of who counts as a migrant sow confusion in public debate, facilitating both over- and under-statement of particular trends in political rhetoric, and contributing to a gap between perceptions and reality.