The future of free movement of persons in the UK (Part 1)


Catherine Barnard and Sarah Fraser Butlin*

*The authors are both at the University of Cambridge and funded by
the ESRC’s UK in a Changing Europe programme. Thanks go to their colleagues, Graeme
Ross, Steve Peers, Jonathan Portes and Madelaine Sumption.

Introduction

Concerns about immigration were a – no, probably the – main reason
why many voted to leave the European Union on 23 June 2016. There was a strong
perception that the UK had ‘lost control’ of its borders; a Leave vote would
enable the UK government to take back that control. At one level, the UK had
not lost control in the sense that passport checks were – and remain – firmly
in place at its borders.  However, public
perception was of a flood of migrants, including criminals, entering the UK
with the government having limited ability to stem, let alone reverse, the
tide. It was certainly true that migration was at its highest level ever at the
time of the referendum. Many saw the Brexit vote as an opportunity to address
this.

But protesting about immigration is the easy bit. It is quite
another to find a solution to the inherent tension between encouraging those
with skills to come to the UK while being seen to ‘take back control’. In Theresa
May’s Mansion House speech on 2 March 2018 she made reference to migration for
the first time:

[W]e must maintain the links between our
people. … We are clear that as we leave the EU, free movement of people will
come to an end and we will control the number of people who come to live in our
country. But UK citizens will still want to work and study in EU countries –
just as EU citizens will want to do the same here, helping to shape and drive
growth, innovation and enterprise. Indeed, businesses across the EU and the UK
must be able to attract and employ the people they need. And we are open to
discussing how to facilitate these valuable links.

However, no further detail as to how this would be achieved was set
out.  Indeed, Michael Heseltine in an
interview with the Observer said “Why
is it that after 18 months since the referendum we have not got any closer with
these issues? The answer is simple: because no one has got any answer about how
to do it.”

When she was Home Secretary, Amber Rudd, commissioned the Migration
Advisory Committee to research what the country needs; it is not due to produce
its final report until the Autumn. The immigration white paper, expected last
year, is still not published. Meanwhile the Windrush scandal has shone an
unforgiving spotlight on the effect of the Home Office’s ‘hostile environment’ on
British citizens.

Given the now heightened sensitivity of migration as an issue, the
UK seems unable to answer the most basic but fundamental question: whether it
will continue to have a two-tier policy for immigration (a preferential regime
for EEA nationals and a (significantly) less favourable regime for the rest of
the world) or a single policy for all immigration.

There have been hints that the two-tier model is preferred, with
preferential access to EEA nationals. If that preferential access was on terms
as close as possible to the currently model of free movement, this would
certainly help oil the wheels of a future deal and keep the door open for UK
participation in a number of schemes including those for EU research funding. Speaking
in Denmark on 9 April 2018, the Prime Minister Theresa May said that while she
would keep the target of reducing net annual migration to below 100,000, she
did recognise that ‘UK citizens will still want to come and study and work in
countries in the EU27 like Denmark, and EU citizens like Danish citizens will
still want to come and work and study in the UK.’  On 29 April 2018, the Independent reported
that ‘Britain [is] set to offer EU Brexit immigration deal “very similar” to
free movement.’ 
Yet there has since been a new home secretary, Sajid Javid, who is rumoured
to have torn up a proposed policy giving preferential access to EU nationals
and also removed
Non-EEA health service workers from the Tier 2 cap. This might suggest he is
looking to a single policy for EEA and non-EEA nationals in the future.
Politically this might not fly. The current visa regime for non-EEA nationals is
bureaucratic, complex and very expensive – and of course subject to the cap of
20,700 on the number of migrants coming to the UK (within Tier 2). Businesses
in certain sectors are highly dependent on (EEA) migrant workers. In the
absence of a dramatic overhaul of the visa scheme, many of those businesses
will not be able to get the workers they need.

On the EU side, countries sending migrants, such as Poland, Bulgaria
and Romania, may still want their workers to be able to work easily in the UK.
So, in the context of the UK’s future relationship with the EU, there may be
some appetite for the EU to explore a new arrangement with the UK in respect of
migration. The UK, in its turn, may ultimately allow pragmatism to prevail, at
least for a transitional period until UK workers are being trained, and may be
willing to countenance some preferential – but controlled – regime for EEA
nationals. This scheme might be based on a notion not of free movement (after
all the UK is leaving the EU and, unless it stays in the EEA, it will not enjoy
free movement) but ‘fair movement’ or ‘fair mobility’. The scheme that we
propose across three blogs published this week, draws on a historical
understanding of the EU’s free movement provisions to inform our suggestions as
to what that new scheme might look like. Our proposal is pragmatic and tries to
steer a course between the competing interests of the EU which will inevitably
tack towards free movement and the UK government which will tack towards
greater restrictions.

In the first blog, we argue that when the original EU Treaty (the
Treaty of Rome) was drafted its focus was on the rights of individuals to move
for work. It was not connected to broader ideas of citizenship and state
building. We argue that the UK’s new arrangement with the EU could return to
those original ideas. At domestic level the current scheme for Croatians
working in the UK might provide a template as to how this can be operationalised.

In the second blog we consider how the equality principle might work
in a post-Brexit immigration policy, especially in respect to access to
benefits. We argue that there should be a phased approach to equal treatment
depending on the migrant’s length of residence, with preconditions to accessing
that right and specific exclusions from it, particularly in the early stages of
a migrant’s arrival.

In the third blog, we consider the final component of a policy based
on fair movement, the introduction of an emergency brake.

We turn now to look at the first element of the proposal for fair
movement: connecting movement to economic activity.

Back to the Future

In the debates in the run-up to the Treaty of Rome, the notion of
free movement of people was focused on the economically active, namely workers
and those seeking to access jobs. The idea of free movement of people can be
traced back to the 1948 Paris Treaty which established the Organisation for
European Economic Cooperation (OEEC) and provided for Contracting Parties to
‘take the necessary measures to facilitate the movement of workers’. However,
this was subsidiary to the aim of providing ‘full employment for their own people’ (emphasis added). 

The emphasis on the movement of workers recurred throughout the
formal discussions about the establishment of the EU’s Common Market.  The German, Belgian, Italian, Luxembourg and
Dutch delegations proposed that the free movement of people provisions of the
Treaty should ‘consist in the free access of nationals of the Member States to economic activities in the territory
of the Community’ (emphasis added). In November 1955 the Inter-Governmental
Conference considered that the concept of free movement of workers included the
right to present oneself in any country of the Community, for the jobs actually
offered and to remain in that country without any other administrative
restriction if a job is actually obtained
(emphasis added). (Original text: “une interprétation correcte de la notion de
libre circulation des travailleurs: elle comporte le droit de se présenter dans
tout pays de la Communauté aux emplois effectivement offerts et de demeurer
dans ce pays sans aucune autre restriction administrative si un emploi est
effectivement obtenu”.)

This formulation of free movement of people was repeated in the 1956
Spaak report and formed the basis for the initial wording of the Treaty of
Rome. Subsequent discussions indicated that the right of free movement should
cover work seekers as well as workers.

What is abundantly clear is that the original Treaty drafters were
concerned only with the economically active. The semi-economically active
(students, the retired, and persons of independent means (PIMs)) were given
free movement rights only much later, through the adoption of the Residence
Rights Directives in the early 1990s, directives now replaced by provisions in
the Citizens’ Rights Directive 2004/38 (CRD), which set the condition of having
comprehensive sickness insurance and sufficient resources if EU citizens in
this group want to reside longer than three months in another Member State.
Free movement rights for the economically inactive were only contemplated by
the citizenship provisions in the Treaty of Maastricht (1992), were
subsequently fleshed out by the Court of Justice but then curtailed. 

We would argue that the link between economic activity and free
movement is key. We would argue that for states, such as the UK, keen to have a
deep and special economic relationship with the EU, entitlement to movement
should return to having an economic focus as the original drafters of the
treaty envisaged.  Those who wish to
enter the UK for more than three months must be coming to work.  This, in and of itself, would not affect
numbers: most EEA citizens come for work and this group has very high
employment rates.

However, to reside in the UK beyond the three-month period, we would
suggest that the EEA migrants must have obtained work which must not only be
genuine and effective but also significantly more than de minimis (e.g. a
minimum of 20 hours a week referenced over a period of, say, 4 months).
Further, this work – whether as an employed or self-employed person – must be
either at a high skill level or paid above a certain minimum threshold. A
recently leaked document
suggests that the Government might be sympathetic to this idea. It would
require EU workers to earn £20,500 (significantly above a full time minimum
wage, or £1,254.60
a month
for someone on a 2040 hours a year contract) in order to come to
the UK.  This would have the effect of
bringing down numbers significantly. In addition, we would suggest that an
individual should have to work for a period of, say, three months before they
can bring family members with them (parents, spouse, dependent children).

We have shown that connecting movement with economic activity was
rooted in the origins of EU law. The requirement for the work to be genuine and
effective and not purely marginal and ancillary is already a requirement of EU
law. However, threshold requirements in terms of skills and/or pay go
significantly beyond the requirements laid down by EU law and the EU may find
these difficult to accept in any future negotiations unless they could be
introduced only for a transitional period.

The semi-economically active – students, the retired and persons of
independent means – add significant economic value to the UK. We would argue
for their inclusion in the definition of those who would have the right of fair
movement subject to having sufficient resources, with those minima being
defined (unlike the position in the CRD), and comprehensive sickness insurance
(this could either be via the NHS surcharge or through private health
insurance). In other words, we would push that the residence requirements already
provided for in Article 7 of the Citizens Rights Directive (CRD) continue to be
applied to this group but enforced in their entirety. This group would be
entitled to work but only up to 20 hours a week.

Finally, there is an issue of those wishing to come to the UK as a
service recipient or provider. In the WTO this is referred to as Mode 2
(consumption abroad such as tourism) and Mode 4 services (natural persons
supplying services in another country). To facilitate these arrangements, there
should be a window of 90 days when EEA nationals can enter the UK as a tourist
and to look for work. Short term service providers would need to register on a
database to indicate the nature and duration of their work. Their terms and
conditions of employment would be mainly covered by home state rules.

Recent examples linking
economic activity with free movement

Requiring a link between free movement and (high skilled) economic
activity underpins the scheme currently operated by the UK for Croatian
nationals during the seven year transitional period following the accession of
Croatia to the EU in July 2013. The Croatian scheme distinguishes between
different types of Croatian migrants who are awarded different types of
registration certificates:

– Purple registration
certificate
to work in the UK: this requires the individual to meet the
requirements for skilled economic migrants, as obtained for Tiers 2 and 5 of
the Points-Based System (PBS), to have a job offer and either a sponsorship
number from the employer or in certain circumstances a letter from the employer.  They may only work with this prior work
authorisation, unless they fall within limited exceptions. After 12 months of
authorised work then permission to work is no longer required.

– Blue registration certificate: where the individual holds a UK
degree and is a “highly skilled individual” or holds a Tier 1 (Exceptional
Talent) Endorsement (for those who are a “world leader or have the potential to
be a world leader”). No work authorisation is required.

– Yellow registration certificate: this is for students and those
who are self-sufficient individuals (that is, PIMs). They must produce evidence
that they have sufficient resources to support themselves and that they have
comprehensive health insurance.  Students
may work in limited and restricted circumstances.

After 12 months of authorised work, a Croatian national becomes
entitled to social security benefits and has the right to reside as a
jobseeker, on the same terms as other EEA nationals.  Moreover, whilst in authorised work, they are
entitled to means-tested benefits.  Those
who are self-employed or have a blue certificate are entitled to social
security benefits from the outset.

Similarly, until 1 January 2014 in order to work in the UK Romanian and
Bulgarian workers were required to hold:

– a Seasonal Agricultural Workers Scheme certificate; or

– a registration certificate as a “highly skilled person”.  This required the individual to produce
evidence showing qualifications, age, previous earnings and experience of the
UK in order to obtain sufficient points to meet the threshold in the
Immigration Rules. Alternatively it could be awarded to those who had obtained
certain qualifications from a UK institution. 
The registration certificate gave the individual unconditional access to
the labour market.

– an accession worker card for certain categories of employment
including au pairs, ministers of religion, teachers, language assistants or
midwives. Students and those who were self-sufficient could also obtain a
registration certificate, and students were then permitted to work for 20 hours
per week in term time.

The mechanics of a
registration scheme

The approach underpinning the Bulgarian/Romanian scheme and
subsequently the Croatian scheme is that generally an individual should be
undertaking some, usually high skilled economic activity to be permitted to
remain in the UK.  We would argue that
these schemes could be developed to include a salary threshold as an
alternative to a skills requirement outlined in section II.

The Croatian, Bulgarian and Romanian schemes also provide an
illustration of how to combine a scheme requiring the migrant to be engaged in
economic activity with a relatively simple, cheap registration system. We would
argue that the registration schemes used in relation to Croatian, Bulgarian and
Romanian migrants might provide a prototype for future arrangements.

Specifically, we would envisage employers issuing an electronic
document to an individual with an eligible job offer, certifying that the job
offer was genuine and effective and with confirmation of the salary and, where
appropriate, highly skilled person status. The prospective employee could then
apply online for a residence permit at negligible cost (circa £65, the current
cost of the Croatian registration certificates).

Were the employment to end within the first twelve months a simple
online notification process could be used to notify the Home Office of the
ending of employment, automatically giving the individual a further, say 3
months, to find a new job.  Where an
individual sought to move to a new employer, the notification process should
deal with this straightforwardly, allowing the new employer to update the
relevant details. After twelve months, permanent residence status would be
granted and the online system updated allowing future employers to check an
individual’s status. 

The advantage of adapting, say, the Croatian model for EEA nationals
(and in the future high skilled non-EEA nationals?) are four fold. First, it is
an off-the-shelf model; no new IT systems need to be built, just an upgrading
of existing ones (they would, however, require significant investment – there
are currently lots of online reports of lengthy administrative delays for
Croatians applying for these certificates). Second, the numbers coming in for
work purposes will be checked systematically. Transparency and the knowledge
that comes from this is already a precondition of control. Third, the system is
still light touch. It avoids complex, bureaucratic and expensive visa schemes. It
could be matched with a legal presumption for the employer that the individual
has the right to work once the individual has a registration certificate. Fourth,
it gives power to employers to determine the type of person they want and in
what field. The scheme is not reliant on the Home Office to release permissions
to fill a job on a monthly basis.

Conclusions

No employer wants to go through the huge expense and tremendous
bureaucracy of a Tier 1 or tier 2 visa scheme. We recognise that there will
inevitably have to be a registration scheme of some sort for newly-arrived EU
migrants wishing to work in the UK (and distinct from those already in the UK at
the end of the transition who have settled status). What we are proposing is a
light touch scheme which allows registration without acting as a significant
deterrent for those coming to the UK. Our proposal, relying as it does on the
individual showing economic activity (or at least sufficient means to support
themselves), reflects the ideas underpinning the original version of the
Treaty, namely that migration should be for economic purposes. Relying on this
as a basis for a future policy, combined with a simple registration scheme, is
the first strand of our approach based on fair movement.

Barnard & Peers: chapter 27, chapter 13

Photo credit: BBC



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