By Laura Devine, Laura Devine Solicitors
Laura Devine navigates the current uncertainties surrounding Brexit and discusses its implications on the UK immigration market.
On 23 June 2016 the British electorate voted 51.9 per cent to 48.1 per cent to leave the European Union. The next day, as was widely reported, “What does it mean to leave the EU?” topped the trending UK Google searches. Indeed, in the days, weeks and now months since the Leave campaign’s victory there has been abundant speculation and considerable concern, but little in the way of concrete details as to what happens next. And though the government has slowly, if not reluctantly, begun to reveal its blueprint for Brexit negotiations, to date these plans remain a rudimentary framework that sketch out an exit but don’t seem to provide a structure that could realistically support it.
For Britons, this lack of strategy – or, at least the lack of publicised strategic details – has resulted in uncertainty. Will the UK find a way to negotiate future access to the single market? What will happen to the UK if Scotland and Northern Ireland are dissatisfied with the Brexit results? What rights of movement among EU member states will remain? Similarly, EU nationals living, working or studying in the UK are deeply concerned since, other than to say that the UK will abandon free movement and leave the single market, it remains unclear what system of rights will follow once the UK exits the EU.
Following the June referendum, the UK government remained conspicuously quiet on its plans to leave the EU, with the newly minted prime minister Theresa May offering only that “Brexit means Brexit” – an unflinchingly confident but ultimately specious statement.
Nearly four months after the vote, at the Conservative Party conference, May advanced the first preliminary details regarding the government’s Brexit strategy, declaring that the UK would invoke Article 50 of the Lisbon Treaty by March 2017, and promising a “Great Repeal Bill”, which would repeal the 1972 European Communities Act, while simultaneously converting the body of EU legislation into the UK statute book. This speech was followed by an address in January 2017 in which the prime minister unveiled a 12-point government Brexit objectives plan. Light on specifics, a 75-page White Paper was published shortly thereafter, which aimed to flesh out individual elements of the government’s plan; it was heavily criticised for being high on aspiration but low on actionable details.
Beyond being somewhat implausible, the government’s Brexit plans have also faced procedural hurdles. In October, May asserted that the decision of when to trigger Article 50, which would start the two-year clock on the Brexit negotiation process, was the government’s alone. However, in an eight-to-three decision, the UK Supreme Court held that because exiting the EU would affect UK law and the rights of UK citizens, triggering Article 50 required parliamentary approval.
Accordingly, May lay the concise European Union (Notification of Withdrawal) Bill 2016-17 before parliament, where it was briefly hung up by an amendment in the House of Lords before moving to the Queen for Royal Assent, which she has given.
Although there were concerns that the government might trigger Brexit immediately upon the Bill becoming law, Article 50 was not invoked until 29 March.
Despite a dearth of specifics on how the government plans to execute its strategy to leave the EU, sufficient information has been released to form a basic framework, from which one can infer some details. The following focuses on the aspects of the government’s plan that will specifically impact UK immigration.
In its White Paper, the government pledged to consider the distinct needs of Scotland, Wales, Northern Ireland and England. Accordingly, the government established a Joint Ministerial Committee on EU Negotiations, which began meeting last November.
However, though the government professes a desire to listen to and act on national-level concerns, it has stressed that it plans to focus on solutions for the entire UK. In reality, this means that some of the most pressing concerns, including remaining in the single market and devolving immigration powers to national governments, are already off the table.
Indeed, the prime minister has explicitly stated on a number of occasions that the UK intends to leave the single market; and in Oral Answers to Questions, the home secretary Amber Rudd asserted that the government’s immigration strategy would be considered as it pertains to the UK as a whole, rather than examining national or regional options.
The Common Travel Area (CTA) permits the free movement of goods, services, utilities and people between the Republic of Ireland and, among others, Northern Ireland. While the government stressed the importance of maintaining this relationship, it simultaneously expressed the need to protect “the integrity of the UK’s immigration system”. These apparently conflicting objectives have unfortunately not been reconciled by the White Paper or elsewhere.
In fact, once the UK leaves the EU, it would be impossible, barring a negotiated exception, to have an open-land border between the UK, a non-EU country and the Republic of Ireland, an EU member state. Moreover, the UK’s concern about its own borders and control over immigration pose obvious issues with the continuation of the CTA or any similar agreement.
As it presently stands, the government intends to abandon the free movement of people and reduce net migration to the tens of thousands, while still attracting “the best and brightest” to the UK. How it plans to achieve this, however, is not clear.
Although the government has not been forthcoming with details on its post-Brexit immigration strategy, it is possible to infer some likely future actions from the White Paper:
Chief among the concerns following the referendum vote has been the fate of EU nationals living in the UK and UK citizens residing in EU member states.
The prime minister has noted, on a number of occasions, the importance of EU migrants to the UK’s economy and culture, as well as the government’s interest in securing their rights. However, May explained that this could not yet occur because, first, the government is unwilling to guarantee these rights before the rights of UK citizens in the EU are secured; and second, several EU member states have refused any deal before negotiations officially begin (ie, before Article 50 is triggered).
Unfortunately, the White Paper fails to provide any more details. Critics, however, point out that unilaterally guaranteeing the rights of EU nationals in the UK before negotiations begin would not only be the morally correct thing to do, but it would also demonstrate goodwill toward the Brexit negotiation process and avoid unnecessarily treating EU nationals as bargaining chips during talks.
Unsurprisingly, the government has faced fierce criticism for its Brexit strategy, particularly since it is not at all apparent how it intends to achieve its lofty objectives.
As noted, the fates of over 3 million EU nationals living in the UK hang in the balance. Even for those who currently qualify for permanent residence, the application process is backlogged and the refusal rate is at nearly 30 per cent. And though an online process is being phased in, a Migration Observatory study found that at the current rate, it would take over 140 years to process all of the anticipated applications.
Employers are also concerned about the changes for both EU nationals they currently employ and future hires. Many worry that they will be unable to fill vital positions in a timely manner owing to new regulations, greater costs and higher bars to entry.
At the national level, Scotland and Northern Ireland voted to remain by wide margins of 62 per cent to 38 per cent and 55.8 per cent to 44.2 per cent respectively. This disparity between the overall outcome and distinct national results have left Scots wondering if it might not be time to hold another referendum on independence, and the Northern Irish justifiably concerned about the prospect of a land border and physical checkpoints between themselves and the Republic of Ireland. As a result of the UK government’s unresponsiveness to concerns regarding immigration and access to the single market, Scotland’s first minister Nicola Sturgeon recently announced plans to begin the steps for a new Scottish independence referendum as early as 2018.
The UK will leave the single market and abandon the principle of free movement of people. This much we know. It is also apparent that the UK will need to introduce a new immigration policy for EU citizens, which will take considerable time, money and effort. However, how any of this will impact individuals from both the UK and the EU, or when these policies will begin to take force, is unclear at the moment.
Nor is it likely that Brexit will decisively end many of the perceived problems it purportedly aims to fix. By many estimates immigration will not be reduced as substantially as some would hope or the government has promised. Still more problematically, the reductions that do occur could dramatically affect the ability of businesses to meet hiring requirements – particularly in lower-skilled positions – thus effecting productivity and the economy generally, as well as impacting businesses’ decisions to leave the UK, or to avoid moving there in the first instance. Moreover, the additional burdens associated with hiring EU nationals under a new immigration system including cost, time and complexity could further harm industry.
The government has put immigration above all other issues in its Brexit strategy and it appears that the prime minister is willing to sacrifice the economic, cultural and potentially even structural wellbeing of Britain in order to appease a minority of the electorate who would abandon free movement at any cost. History will likely record the events of 2016 as marking, if not victories for protectionism, nativism and nationalism, a pregnant pause for globalism, integration and internationalism.
And astonishingly, we still do not know what it means to leave the EU.