How Free? Brexit and the Movement of Peoples

By Shannon Togawa Mercer
Thursday, October 27, 2016, 1:33 PM

As the U.K. government prepares itself for the beginning of Brexit negotiations in March 2017, it is becoming increasingly clear that there is no off-ramp—and, for that matter, no brakes on the car. If you’ve tuned into the news in recent weeks, you’ve heard some news outlets characterize the Government’s strategy as a course set for a “Hard Brexit.”

By most accounts, that means the U.K.’s full exit from the European Single Market will happen—not a series of half measures that keep one foot in while the other dances out. The reason is chiefly the desire to control the movement of people across the U.K.’s borders. The attitude behind this hard Brexit concept was reflected in Prime Minister Theresa May’s speech at the Conservative Party conference in late September: “[t]oo many people in positions of power behave as though they have more in common with international elites than with the people down the road, the people they employ, the people they pass in the street. But if you believe you’re a citizen of the world, you’re a citizen of nowhere. You don’t understand what the very word ‘citizenship’ means.”

The U.K. has likely reached the boundaries of what Winston Churchill warned of in 1954 when he jotted down a question on the wisdom of allowing public feeling about immigration to “develop a little more - before takg. action...May be wise to wait...But it wd. be fatal to let it develop too far.”

May’s most recent outline of the U.K.’s negotiation priorities suggests that her predecessor’s worry may now be the U.K.’s reality. It is more likely than not that the U.K. will be negotiating its way toward the brick wall if it believes it has any chance at remaining committed to three of the four freedoms that are key to the EU (the free movement of goods, capital, and services) but exiting as to the fourth: the free movement of people. That is a plan, as Churchill might say, up with which the EU shall not put. And thus the scales tip toward a hard Brexit.

This push-and-pull between immigration and the other three freedoms is perhaps the most divisive issue in the Brexit saga. So let’s take a look at this complex debate, paying particular attention to two of the potential Brexecution stumbling blocks: acquired rights, the pre-Brexit rights that will be retained by U.K.and EU citizens after the exit, and changes to the freedom of movement for EU and U.K. citizens within the Common Travel Area.

As I explained in a past post, the actual Brexit part of Brexit hasn’t quite happened yet—Brexit thus far has only been a referendum, the collapse of one government and its replacement with another, an opposition party leadership challenge, and lots of posturing for as-yet-uninitiated negotiations.

Despite that, the tension surrounding foreign workers in the United Kingdom and their post-Brexit status has already begun to mount. After the September Tory conference to which I alluded above, Home Secretary Amber Rudd distributed a controversial briefing note suggesting that companies may have to aggregate and disclose to the government a list of the foreign workers in their employ. The note precipitated responses from more than 100 business leaders condemning the plan on the grounds that it would “hurt the economy, hurt workers’ rights and hurt Britain’s standing as a tolerant country.” The Government, in response, clarified its intention to “consult with businesses...on how [to] do more encourage [sic] companies - to incentivise them - to look first at the British labour market.” While no formal policy has changed, at least one other instance of ambiguous government policy has suggested a burgeoning panic regarding the government’s approach to foreign workers. On October 8, the Washington Post reported that professors at the London School of Economics (LSE) accused the British Foreign Office of making foreign academics ineligible to advise the government. The Foreign Office has denied any policy change post-Brexit, but reports coming from foreign professors at LSE have garnered a lot of press.

In even bigger news, Scottish First Minister Nicola Sturgeon has taken a strong stance against a Hard Brexit, initiating an effort to hold a second referendum for Scottish independence against the U.K. Government’s wishes. In a bold statement this month, Sturgeon said that she would advocate for Scotland to have the ability to choose its future if the “Tory government...insists on taking Scotland down a path that hurts our economy, costs jobs, lowers our living standards and damages our reputation as an open, welcoming, diverse country.” In her mind, and likely in the minds of the many Scots who voted to remain, Brexit suggests the possibility that the assurances made to Scotland during the 2014 referendum will soon be broken. Specifically, Sturgeon emphasized that, “the threat to our economy is….also the deeply damaging—and utterly shameful—message that the Tories’ rhetoric about foreign workers is sending to the world. More than ever, we need to tell our European friends that Scotland is open for business.”

While exiting from one of the four freedoms is a non-starter from an EU perspective, there may be a way to thread the needle in a softer Brexit. The Guardian reported in July that senior EU officials may consider allowing for an “emergency brake” on the movement of people for a period of several years in order to avoid a shock to the EU economy and allow the U.K. to stay in the single market while assuaging the immigration concerns expressed in the process leading up the referendum. In exchange, the rights of EU citizens in the U.K would be protected for the term of the “emergency brake.” Further to the potential for a compromise, Chancellor of the Exchequer Philip Hammond has recently broken with May’s stance on immigration, suggesting that foreign students should not be counted in net migration numbers. Even more recently, former Tory leader Michael Howard, an oft-described eurosceptic, has said that he “think[s] the Government should make it clear now that those EU citizens who are currently living in this country would be allowed to stay in this country, would be allowed to carry on working in this country, would be allowed to carry on studying. I don't think we should wait for any question of reciprocity.” If there are fractured opinions in Whitehall, the red-line of immigration control may fade into a fuzzier gray.

The U.K. has, truth be told, never fully bought into the free movement experiment. The Schengen Agreement, a treaty signed in 1985, eliminated many of the EU’s internal border checks, save for those administered by the countries that opted out: Bulgaria, Croatia, Cyprus, Romania, the United Kingdom and Ireland. Ireland is said to have opted out of Schengen membership in order to maintain its Common Travel Area (CTA) agreement with the UK. The CTA serves essentially the same function as Schengen, but the regulated movement is only between Ireland and the U.K. Having opted out of Schengen, the U.K. controls its own border and is, therefore, entitled to check passports in order to verify that an individual isn’t wanted a wanted person or in possession of a stolen passport. But the preservation of British border control is pretty limited; the U.K. is obligated to grant admission to any citizen of the EU, and that person’s family members, assuming those individuals don’t pose a threat.

So, what goals might the U.K. be pursuing in its new Brexit immigration agenda? Earlier this summer, May wanted to bring U.K. annual net migration down to 100,000 from the record high of 330,000 in 2015. Most recently, Government ministers have suggested that they will reduce immigration to the “tens of thousands.”

What policy options might May have to negotiate an agreement that will help her accomplish this goal? Aside from the potential for a temporary solution in the aforementioned “emergency break,” the Government could negotiate for the following changed terms:

  • the free movement of workers who already have job placements before migrating;
  • the free movement of people with allowed safeguard measures that will be implemented in the event of excessive immigration or social or economic pressure;
  • the free movement of students, family members and retirees and some limitation on EU migrant workers holding work permits—these policies being more liberal than the current rules for non-EU migrants; or
  • the free movement of students, family members and retirees but implementing strict regulations on work permits, roughly the equivalent to those restrictions currently imposed on non-EU workers.

The Government has already ruled out extending the points-based visa system, the current immigration policy applied to immigrants from outside the EU, to EU passport holders. At the G20 conference in September, May explained that Brexit voters voted to “bring some control into the movement of people from the European Union to the U.K.” The points system, according to May, won’t give the Government enough discretion over EU migration.

The discussion above takes for granted that there are two separate groups necessarily considered in any future immigration policy: on the one hand, there are those EU citizens already living in the U.K. and those U.K. citizens already living in the EU; on the other hand, there are those people who are looking to emigrate to either territory after Brexit actually goes into effect..

For those U.K. citizens living in the EU and vice versa currently, a principle of international law, albeit a complicated one, may protect some existing rights. Acquired, or vested, rights are those rights, obligations or legal situations created through the execution of a treaty before its termination. In theory, these rights continue to exist after the dissolution or termination of a treaty. Vested rights are granted to states through the Vienna Convention on the Law of Treaties, Article 70. A 1963 case called van Gend & Loos v. Netherlands Inland Revenue Administration seems to characterize the rights of an individual under a treaty (specifically the European Economic Communities Treaty) as having become part of an individual's’ “legal heritage,” thus potentially extending the protection of acquired rights to the individual citizen. EU Treaties are silent on the issue. According to the Dörr and Schmalenbach commentary on International Law, customary international law has recognized limited acquired rights for the individual, confining those protected rights to the private rights “accrued under municipal law….Its extension to other rights of individuals is highly doubtful. For example, it cannot generally be said that rights concerning the protection of human rights confer acquired rights to individuals that continue to exist even if the treat is denounced.

Putting aside the legal mumbo jumbo, what exactly are these rights? The honest answer is that no one really knows. A handful of commentaries have limited these rights to private rights, especially in the context of state succession (which is not directly applicable, but arguably analogous here), such as the right to property and contract. In the Brexit context, the U.K. and the EU alike may want to argue that rights such as the rights to family and health care benefits may be protected under this principle. But the extent of these rights is unclear. As always, any right can be preserved through negotiation and inclusion in the Brexit withdrawal agreement and subsequent agreements defining the future relationship between the U.K. and the EU. Likewise, it may be possible for the state parties to contract against the preservation of a more conventional acquired right in those same agreements.

What this means, practically, is that the EU and the U.K. will almost certainly negotiate specific rights for those already in the EU and the U.K. In order to guarantee rights for its own citizens living in the EU, the U.K. will likely have to guarantee reciprocity to EU citizens already in country.

Those looking to move to the U.K. after Brexit will undoubtedly face a less accommodating reception. Unfortunately, not much is certain beyond that. In the lead-up to May’s upcoming appearance at the EU summit in Brussels she has simultaneously characterized the immigration negotiation point as a “red line” and given the impression to other leaders, such as Lars Rasmussen of Denmark, that “a lot of work...needs to be done in the UK [sic] before there is a clear view of what the British want.” Not only is this uncertainty damaging to the U.K.’s reputation, but it makes the U.K. less attractive to outside businesses. As the Financial Times put it in an article on October 19, “The government has yet to grasp a simple fact of globalisation: nations cannot declare themselves open for business and then close the door to foreigners.

Mainland Europeans are not the only ones concerned about the U.K.’s potential clamp-down on immigration. Of particular concern is the border between Northern Ireland and Ireland, or more broadly, the CTA.

Citizens of CTA countries, specifically the Republic of Ireland, the United Kingdom, the Isle of Man, and the Channel Islands, may travel freely within the CTA without passport controls. The border between the Republic of Ireland and Northern Ireland is not regulated by routine controls. Irish nationals also enjoy special status within the U.K.—they are not considered aliens and are granted permanent immigration permission. Similarly, the Irish and U.K. governments have expressed a desire to maintain the CTA as it is. While those campaigning for leave didn’t propose any significant changes to the status quo, the terms of the UK-EU relationship will matter quite a bit to the ultimate state of the CTA. The CTA existed before the EU, and the EU recognizes the CTA as a separate entity from the Schengen Area. That said, the Northern Ireland Affairs Committee reported that the EU Brexit Taskforce viewed the CTA as an “agreement between EU members and protected by EU protocol (it is currently included in an annex to the Lisbon Treaty).” Under EU law, the Republic of Ireland is permitted to enter into bilateral agreements with non-EU countries but only with the consent of the rest of the EU. So legally, once Brexit actually happens, the border between Northern Ireland and the U.K. becomes the border between the U.K. and the EU. The result is a fear that any free movement across the Irish border will become a “backdoor” way to enter the U.K. This fear alone may require the establishment of a hard land border. There will certainly need to be negotiations around the nature of the customs regime on the Irish border.

Unsurprisingly, the European Union views the impending immigration negotiations with an equally sharp eye. As Jean-Claude Junker said in his State of the European Union address on September 14: “An integral part of our European way of life is our values. The values of freedom, democracy, the rule of law. Values fought for on battlefields and soapboxes over centuries...The free movement of workers is as much a common European value as our fight against discrimination and racism.”

With the desires to guarantee and curtail the free movement of people being both so deeply rooted and diametrically opposed, it’s anyone’s guess as to how a compromise might be struck between the negotiating parties. Even more interesting will be the resulting give-and-take between this negotiation point and others: trade in goods, trade in services, security, communication, financial contributions to the EU, and decisionmaking power in the resulting complex of states and supra-states. As both sides feel more compelled to release public statements before March, the landscape of potential negotiation paths morphs from an impressionist painting into a Jackson Pollock.

In an effort to describe the splatters and drips, I will continue to flesh out some of the more contentious negotiating points in my coming pieces. But even with the legal landscape clarified as it stands today, reasonable minds will differ as to whether this Pollock looks more like the chaos of a new order coming into being or more like the chaotic unravelling of an elegant and delicate political experiment.