© 2017 SCER
The prospect of exiting the EU is sharpening the divergence between Westminster and Holyrood on immigration policy. This mirrors the way in which many aspects of the constitutional settlement have come under strain as a result of the vote. Regardless of whether one sees the Brexit referendum as motivated by a desire to reduce immigration, the fact is that both the Conservative and Labour parties currently interpret it as requiring an end to the free movement of people.
In relation to immigration, this raises two main sets of issues: the rights of EEA nationals living in the UK after Brexit and the rules governing future inflows from the EEA. While some progress has been made on the former, on the latter any official clarity is woefully absent. What is becoming abundantly clear, however, is that within this space the policy goals sought by the First Minister of Scotland are vastly different from the aims pursued by Prime Minister.
Turning first to EU citizens’ rights: the draft agreement provided a degree of clarity last month. Although ‘nothing is agreed until everything is agreed’, under the deal as it stands EU citizens retain their right to reside in the UK – they will need to apply for status, but the requirements for comprehensive sickness insurance have been dropped. The settlement application procedures are to be simple and seek only to verify the pre-existing right to reside under EU law, with European Court of Justice as the final arbiter of that law. EU nationals arriving in the transition period get the same rights.
These final positions have more in common with the stance Nicola Sturgeon outlined back in July 2017 than the UK government’s initial position in June of that year, mainly because her position shared several elements with the EU. Many observers may comment that this clarity should have come much sooner, given the assurances both Leave campaigns made on EU citizens’ rights. In which case, the meandering path taken towards this outcome presents a puzzling seeding of mistrust among EEA nationals living in the UK who were angered by the UK government’s presentation of their rights as ‘bargaining chips’. The Home Office mistakenly issuing up to 100 ‘prepare to leave’ letters to EU citizens living in the UK only added fuel to the fire.
Clarity on the shape of the UK’s post-Brexit immigration system has seen nothing but postponement, with an Immigration bill now delayed until the autumn at the earliest. Securing a transition arrangement covering EEA nationals provides more time, until 2021, before a new system must be put in place. If the draft white paper leaked in September 2017 is any guide, we should expect a restrictive and selective UK immigration system with a focus on driving down net migration. Within this system, low-skilled immigration is expected to be strictly temporary and migrants’ rights few and far between.
This is a long way from the freedom and flexibility that characterised migration from the EU, where migrants could come and go as they chose, work without restrictions, bring family members and access certain benefits if needed. To a degree, these changes will matter more in Scotland, where EEA migration makes up a slightly larger proportion of overall migration and includes a greater share of migrants from the new EU member states – migrants from these countries are more likely to be working in the lower-skilled, lower-paid occupations set to face greater controls.
Ostensibly, delays to the Immigration bill are due to the need for government to take in the conclusions of Migration Advisory Commission’s (MAC) consultation into the role of EEA workers in the UK labour market, before determining a direction. However, straightforward acceptance of the MAC’s conclusions on the evidence of the need for immigration is problematised by the fact that such needs depend on the goals pursued by governments. In this sense, how much immigration the UK, or parts of the UK, ‘need’ is a policy choice. And it is one on which the UK and Scottish governments differ substantially.
The divergence in approaches to immigration precedes the SNP government – it found its earliest expression in post-study work visas through the Fresh Talent initiative in 2004, under a Scottish Labour government. Since the Brexit referendum, the gap has become more evident, with the Scottish government’s programme for government and its evidence to the MAC clearly underpinned by the call to continue a more open immigration policy for economic, and demographic, reasons.
Models and mechanisms for creating an immigration system that allows for regional differences have been discussed in numerous papers over the last 18 months – including one which I wrote with colleagues at Edinburgh University. The prospects for a differentiated immigration system allowing regions and nations like Scotland to have more room to pursue different immigration goals may look quite slim at the moment. The MAC’s interim report last month seemed to give fairly short shrift to an exceptionalist case for Scotland, on the basis that the differences that mark out Scotland exist elsewhere in the UK as well.
The continued insistence on a low net migration target seems to make a more restrictive immigration system likely, even if its exact shape remains unclear. The impact of reductions in immigration is expected to be damaging for the UK economy. Worryingly, business remains unprepared to accommodate such a decrease in the availability of foreign workers. Whether the planned reduction in net migration to the ‘tens of thousands’ is practically achievable is questionable. Much depends on the outcomes of negotiations, not only with the EU, but also with other countries on trade deals yet to come. Many countries, like India, will seek access to UK labour markets in return for trade.
Once again, external voices echo the Scottish government’s position. Reports are that the SNP’s upcoming economic strategy in the Growth Commission will include population growth as key – implying its commitment to a more open immigration policy. Despite it looking unlikely that the MAC will recommend a differentiated immigration system, it does seem that, with actors on all sides pushing against the UK government’s restrictive urge, solutions will be needed that can give more parties what they want.
University of Edinburgh
Dr Sarah Kyambi is Research Fellow at the University of Edinburgh and a consultant on immigration policy. Her research interests include immigration, public policy, human rights and disability, and she has an expertise in providing policy-relevant research to government, funders and NGOs.