Brexit and Immigration: Squaring the circle

Politicians have to understand the public’s concerns about immigration and take action on this. But leaving the European single market primarily because of its provisions on freedom of movement would have a major economic cost.

Is there a way to square the circle?

Yes, by fully and robustly implementing three sets of changes, which Britain can do without asking permission from anyone else.

1. Non-EU migration

The government has complete policy control over non-EU immigration, which is actually the majority of immigration to Britain (a fact the government kept quiet about when it wanted to shift the blame for its own failure to meet its own target on reducing immigration). Many of the public’s concerns could be addressed with existing powers, which does not require any agreement to be reached with other EU countries. And many of the public’s concerns about immigration are actually about non-EU migrants who are, rightly or wrongly, often associated with fears about security, cultural change in our communities, and so on.

2. EU migration: make use of the existing safeguards available under European rules

EU freedom of movement is not an unconditional right. There are important restrictions which Britain has failed to use. Other EU Member States ask thousands of people to leave their country every year. It is Britain’s failure to use such safeguards to the full, and, where appropriate, send back those with no right to remain, which created the impression that free movement is a free-for-all.

EU rules state that, after three months, EU citizens in another EU country than their own must:

• be in employment; or
• continue to seek employment and have a genuine chance of being gaining employment; or
• be able to show that they have sufficient resources not to be a burden on public funds and sickness insurance.

Individuals can also be excluded or expelled in the event of abuse or fraud, and other serious criminal offences. Furthermore, EU migrants are not automatically entitled to claim benefits in the UK.  They must meet a number of requirements, which could be enforced better, or even tightened.

For example, there is never any obligation to pay benefits classified as social assistance (like housing benefit and income support) to recent migrants who do not have a job, and the obligation to do so for social security benefits (like child benefit, invalidity benefit or contribution-based Jobseekers’ Allowance) only applies if someone passes the habitual residence test (which requires having resided in the UK for an ‘appreciable period’ and having a settled intention to remain).  Britain could, if it so wished, classify more benefits in the former category (social assistance) and review its rules on habitual residence.

A June 2016 EU Court ruling has opened the door to much more leeway on this[1], as have a number of other recent judgments.[2]  Social security could therefore be made to require further qualifying conditions, such as a certain length or value of  contribution.

Another bone of contention has been so-called health tourism. In fact, short term visitors are not entitled to NHS non-urgent treatment for pre-existing medical conditions and neither are they entitled to come to the UK specifically to obtain NHS treatment. Use of the European Health Insurance Card (a reciprocal arrangement for travellers, such as people on holiday) is supposed to be charged back to their country of residence, which we frequently fail to do.

And like “health tourism”, also “benefit tourism”, to the extent it exists, can be dealt with under EU rules. In 2015, the European Court of Justice ruled that a country is entitled to withhold basic benefits from EU migrants if they have come with no intention of finding a job. EU law gives incomers absolutely no right to jump queues for social housing, and this should be made clear and applied.  EU law gives migrants no right to just pitch up in the UK and claim unemployment benefits and this too should be made clear and applied.

3.  Adjusting UK policies

Besides all this, there are numerous policy measures that can be taken by a British government focussed on addressing real problems linked to migration. For example, it could:

• Prevent undercutting of UK wages (and exploitation of EU nationals by abusive employers) by properly enforcing the national minimum wage and going rates
• Tighten up rules on self-employment, which currently allow anybody to declare themselves as “self-employed” with minimal evidence. They also allow “bogus self-employment” (where companies pretend there is no employment relationship with their workers), often used to undercut local workforces.
• Reduce the need for foreign recruitment by boosting training, including an expansion of the numbers of nurses and doctors we train at home
• Prohibit companies from only advertising jobs abroad and not locally
• Reintroduce Gordon Brown’s Migrant Impact Fund, which directed some of the surplus made by the Treasury from EU migrants, to areas where disproportionately high numbers of migrations have put pressure on public services.
• Reverse the spending cuts on the Border Force to ensure that serious criminals are deported or refused entry to UK
• Where appropriate, enforce the rights we already have under EU rules to remove non-active EU citizens after 3 months.
• Take measures to facilitate integration of immigrants into British society (knowledge of language, customs and rules, ability to participate)

It is worth recalling the political context in which this issue grew. Cameron’s 2010 manifesto promised to ‘reduce net immigration to the tens of thousands’ and this became an albatross around his and Home Secretary Theresa May’s neck. When they failed to meet it – even as regards the bulk of migration (non-EU) that falls entirely under British rules – they shifted the blame onto the EU, saying they couldn’t control immigration because of its free movement rules.

Yet EU free movement works both ways – nearly 2 million Britons live in other EU countries. And EU citizens here pay their way (they made a net contribution of £2.5 billion from Income Tax and NI payments in 2014-5 and an estimated net contribution of £20 billion between 2001 and 2011).

On top of that, EU immigration was deliberately conflated with refugees/asylum seekers by the Leave campaign, and with non-EU economic migration. Much of the Leave vote was garnered by opposition to something that has nothing to do with the EU.

Finally, even if immigration levels should be reduced over time, they cannot be slashed overnight, whether in or out of the EU. If companies cannot get access in the UK to the workforce they need, they will simply move abroad, reducing job opportunities for British workers. We would then have to pay more tax because, overall, immigrants pay far more in taxes than they take out in benefits. And the queue for healthcare would be longer not shorter, because the NHS currently depends on immigrant doctors and other skilled migrant workers, many of them from the EU.

One last point, for those who feel we don’t adequately control our border.  If we leave the EU:

• We will be less likely to be able to keep our checkpoint on our most vulnerable entry point at Calais rather than Dover.
• We may no longer have full access to the Europol and Schengen databases allowing us to check criminal records and fingerprints of suspicious cases seeking entry.
• We will drop out of the “Dublin” rules whereby EU countries agreed that refugees should request asylum in the first EU country they arrive in. Britain has sent over 12,000 asylum seekers back to the first EU country they arrived in.  The loss of this facility is presumably not what Leave voters had in mind!

All things considered, Brexit is not a price worth paying to be able to do things that we could do anyway.

SOURCES

[1] http://curia.europa.eu/jcms/upload/docs/application/pdf/2016-06/cp160063en.pdf

[2] http://curia.europa.eu/jcms/upload/docs/application/pdf/2016-02/cp160018en.pdf

  & http://curia.europa.eu/jcms/upload/docs/application/pdf/2015-09/cp150101en.pdf