Brexit, EU Citizenship and Future Immigration Policy: What’s Left to Play For?

8 February 2018

The round table “Brexit, EU Citizenship and Future Immigration Policy: What’s Left to Play For?” took place on the 8 February 2018 at the University of Glasgow. It was organised by the SCER (Scottish Centre on European Relations) and SULNE (Scottish universities Legal Network on Europe) in collaboration with the ECHR (Equality and Human Rights Commission). The round-table was part of an event series on the legal consequences of Brexit and was generously funded by the EHRC.

As phase two of the Brexit negotiation begin, including the start of transition talks, this roundtable sought to take stock of the legal and policy landscape on EU citizens’ rights at EU, UK and Scottish levels and seek to identify – and encourage renewed debate on – the possible options for a future domestic immigration policy.

The event was divided into two parts. First three speakers gave a brief presentation on different points regarding Brexit and UK Immigration followed by a roundtable discussion. The speakers were: Conor James McKinney, the deputy editor of Free Movement who talked about the agreed points in the negotiations between the EU and UK so far. He was followed by Jen Ang who is a human rights lawyer and director of JustRight Scotland, she spoke to the experiences of at risk EEA nationals in the context of her latest project. Finally, Dr Sarah Kyambi, consultant and expert on Immigration Policy, affiliated to the University of Edinburgh talked about the future immigration policy and the options for Scotland. As a fourth speaker Dr Charlotte O’Brien was announced, however she was unable to attend.

This report will offer a brief summary of each presentation followed by some highlights from the round table discussion.

Conor James McKinney, Free Movement blog

‘Agreed points in the negotiations so far and what to expect for EU citizens and rights’

Mr. McKinney, explained that one of his goals for his website was to meet the increasing demand for information in regards to Brexit and immigration and to provide it in plain English.

He started by explaining the first phase agreement, where the UK’s orderly exit from the EU was outlined. He focused his presentation on the rights of EU citizens in the UK, discussing both would have been out of the scope the presentation. He did however highlight the recent reference to the European Court of Justice (ECJ) from a Dutch court that UK citizens should be able to keep their EU citizenship post Brexit.[1]

It was explained that the first phase agreement contained three phases for EU citizens in the UK. Firstly, EU citizens who have been lawfully resident in the UK for five years before 29 March 2019 (Brexit day) and continue to be so are entitled to a so-called “settled status”. This would mean that they would retain the rights they currently enjoy under EU law, such as the right to live and work in the UK, use health services, pay home fees, family reunification rights, etc. However subject to certain limitations in relation to family rights among others. These rights are granted for life but will laps once one has left the UK for more than five years.

If you have not lawfully resided in the UK for five years but have arrived in the UK before 29 March 2019 then EU citizens are allowed to remain until they have reached the five-year mark to gain the settled status. During the interim time one has a “temporary status”.

Finally, those EU citizens arriving after 29 March 2019 will have to abide by whatever rules are put in place for them at that time. These may not necessarily be the rules that are in force for third country nationals at the moment as there may yet be special provision.

The actual agreement will be embodied in the withdrawal agreement. The ECJ will have jurisdiction over it for eight years. Thereafter the legislation is supposed to have a special status which would prevail over inconsistent law, unless expressly repealed by Parliament, similar to the current European Communities Act 1972.

Mr. McKinney stressed that so far this is merely an agreement not a treaty and thus not binding. This has also been mentioned by the EU council. Much of this is depends on the success of the second stage negotiations. Furthermore, this agreement is not fully agreed, and the Commission has made it clear that it is not yet happy with all aspects of it.

However, Mr. McKinney stressed that his main concern lies in a different area. The agreement does not confer the settled status automatically, EU citizens will have to apply for it. The Home Office has made a public statement that they will be very permissive in those applications, however Mr. McKinney stresses that any system that requires registration will automatically exclude those people who will not apply for whatever reason. Furthermore, in his view, it is unlikely that a government would negotiate such a system without any intention of using the option to reject applications that do not meet the criteria.

The Home Office would have to make a complete policy shift, because its current job was to reject people and the Office could go back on its promises without any legal repercussions.

The Agreement also does not cover non-EU citizens and EU citizens who do not enjoy a right of permanent residence. The EU Commission has made it clear that it will not do anything in that regard. In his view the system will be used to reject and deport vulnerable people.

As a final comment Mr. McKinney highlighted that the government had to square the circle of reducing immigration while also keep business alive and in this context, he also mentions that the Government has delayed the Immigration bill until late 2018.

Jen Ang, Director, JustRight Scotland

‘Lived Experience of At Risk EEA Nationals in the Brexit Era’

Ms. Ang started her presentation by talking about her legal advice centre, JustRight Scotland. The centre is based on the premise of collaborative social justice by taking legal advice and working with non-lawyers to fill advice gaps and understand wider issues and barriers at play to achieve maximum impact. Particularly in the current political context, there is a need for clever projects and people to pool resources together.

A current project is “StrEEt Aware”, it is a crisis response to the Home Office’s rough sleepers policy. The policy set out that rough sleeping EEA nationals can be deported, even if they have exercised their Treaty rights. This policy has been successfully challenged in the Court of Appeal in December 2017,[2] however there is ongoing concern that there is an advice gap for EEA nationals at risk of destitution and homelessness and this makes them vulnerable to exploitation, trafficking and the procedural unlawfulness in the enforcement of Home Office policies.

In Ms. Ang’s view this aggressive stance illustrates the hostile environment EEA nationals have been drawn into post-Brexit. The fact that the Home Office is willing to deport people who have exercised their treaty rights is a particularly strong approach.

This policy has been exercised both in London and in Scotland. The Home Office had sought information from charities about the location of rough sleepers despite the Home Office not being lawfully allowed to request such information. In Scotland the Home Office was working with Police Scotland and using stop and search tactics. This provoked the crisis response.

Ms. Ang and her colleagues decided to host fortnightly legal surgeries in collaboration with Streetwork. The work was done pro bono as a pilot project. They had both drop in as well as by appointment sessions. The most frequent problem they encountered was the language barrier. As a result, Ms. Ang suggested that for future projects by appointment, consultations were to be preferred so interpreters could be organised.

Over six legal surgeries 19 people were given advice. The majority of them were eastern European, male and had exercised their Treaty rights. They were not able to use those rights because they did not know about them. There is also evidence suggesting that a number of them were trafficked and/or had suffered labour exploitation.

Many of the clients were under the impression that they had no rights. This was partially due to misinformation spread by agencies or their employers. Their view was confirmed by the fact that their peers had received the same information.

Ms. Ang stressed that these people were dealing with three different government branches, the Home Office (in relation to right to reside), the Department of Work and Pensions (DWP) (in relation to the benefits system) and local authorities (in relation to housing provision). All these make different and sometimes inconsistent decisions. In Ms. Ang’s project they took a collaborative approach to provide immigration and housing law advice in a single surgery appointment, and as a result a greater number of issues could be dealt with in one sitting.

Having all that expertise in one room is more expensive, but also more efficient. StrEEt Aware hope to continue to provide advice within this collaborative model and strengthen the approach by also adding benefits advice. This would require more volunteers and funding.

Other at-risk groups, particularly in the Brexit context, will require additional support in order to secure their right to reside include: looked after children in care, individuals with some history of criminality, and long-term adult residents not exercising their Treaty rights which are now caught in a hostile environment. Furthermore, in the wake of Brexit there are increased reports of unlawful discrimination in employment and privately rented accommodation. As a result, Ms. Ang believes that work requires to be commenced now to ensure that projects with the capacity to assist are up and running in Scotland before May 2019.

Dr Sarah Kyambi, consultant and expert on immigration policy, affiliated to the University of Edinburgh

‘Future Immigration Policy and the Options for Scotland’

Dr. Kyambi started her presentation stating how difficult it is to predict the Brexit future, because it is so open. In terms of Brexit it seems as though free movement of persons will come to an end. As Mr. McKinney has mentioned the Immigration Bill is to be expected sometime in 2018, the immigration target by the UK Government will be retained.

There are also increasingly calls from some areas of the UK, in particular London and Scotland, to allow greater differentiation within the UK immigration system. However, Dr. Kyambi stressed that just because there is talk this does not necessarily mean that this will be done.

She statistics regarding immigration in the UK focusing on the trends in migration from the EU One could see how the flow of immigration from the EU to the UK had increased in real terms and as a proportion of overall immigration. The greater importance of EU immigration in Scotland was noted pointing out that EU nationals make up a greater proportion of the immigrant population in Scotland than in the rest of the UK.

When analysing the reason for migration into the UK almost 70% of EU nationals are doing so because they have or are seeking employment. Dr. Kyambi then showed that if the current visa requirements for non-EU workers would apply then realistically only 66% of high skilled workers would have any hope reaching the earnings threshold. Among mid and low skilled workers only 24% and 6% meet the earnings threshold, but these workers would be screened out by the current skills threshold.

Dr. Kyambi predicts that post Brexit the UK government will retain its immigration target, and this will exert downward pressure across the entire immigration system. Furthermore, the leaked immigration white paper stipulates an end to rights based, unconditional free movement. The indications are that the government will reduce the options for long term settled status particularly among lower skilled and lower paid migrants

Kyambi points out that the new test for immigration within the MAC consultation would be whether it is ‘beneficial for the total resident population’. She argued that this test is a very restrictive interpretation for the scenarios in which immigration can be beneficial to the UK or to Scotland. For example, if a UK farmer was employing 200 EU migrants under this model this would count this as a benefit to one UK national. The fact that migrants are paying money and pay taxes is discounted. The broader benefits of migration in this instance, such as the fact that incoming migrants would be spending that money in the local economy could be included in calculations of the benefit migration brings in this scenario.

One option for lower skilled migration post-Brexit would be to open up tier 3 visas. Dr. Kyambi noted there are temporary visa schemes in almost all of the OECD countries. These schemes can vary in occupation, sector and can even be regionalised. Most of them have limited family and welfare rights, but they are often restricted to temporary migration.

There is also the question, in particular for low paid work, whether it is even viable in the UK with no access to social welfare. Research suggests that access to social welfare support is necessary to sustain migration, particularly in rural areas.

As previously mentioned there also increased calls for greater differentiation. The main drivers for this are recruitment concerns post-Brexit, the pro-immigration voices in the country looking for an outlet and the different immigration goals in different parts of the country.

There had previously been some differentiation within the UK immigration system with the Fresh Talent post study visa in Scotland. Other proposals for greater differentiation are regional visas, changing skills or salary thresholds for tier 2 by region and an expanded role or functions for devolved governments within the UK immigration system.

However, Dr. Kyambi noted that arguments about differentiation can be difficult to pursue because they tends to collapse into a discussion about devolution. She was keen to note that these two issues can be distinguished and that simply devolving more powers over immigration may not even be the most effective route to securing an immigration system that tailors its effects to regional requirements. She noted that just because a devolved government has the power over immigration may not mean it can deliver on what it promises. A differentiated immigration system would require a lot of work. She concluded that the general agreement is that such differentiation is possible. In terms of enforcement she noted that paradoxically the hostile environment policy would make the enforcement of a differentiated system rather easier than it had been 10 years ago when she first proposed the scope for differentiating immigration systems.

Round Table Discussion

Following the presentations there was a round table discussion. It was opened by Claire Speedie and Rachel Sunderland who are both from the EU Strategy and Migration Division of the Scottish Government. They gave a brief overview of the Scottish Governments most recent paper on migration that had been published the day before the event: ‘Scotland’s population needs and migration policy: Discussion paper on evidence, policy and powers for the Scottish Parliament’ and it can be downloaded from the website of the Scottish Government.[3]

Speedie and Sunderland highlighted that the Scottish Government believes that Scotland has different needs than the rest of the UK and that it should be treated differently in terms of migration. According to their research future population growth in Scotland will be fully dependent on immigration. It is predicted that the populations of over 75 years olds will increase by 80% while in the same time frame the population of work age people will only increase by 1%.They explain that when considering these statistics there is a strong rural dimension to Scotland and thus these problems are not uniform throughout Scotland. They predict that around 1/3 of the Scottish Councils will face depopulation. As a result, the Scottish government wants migrants to come to Scotland and for them to settle here, in contrast to the stance of the UK government.

They would prefer a differentiated immigration policy in the UK. They want to convince the UK government to drop the net migration target or at the very least not have it apply to Scotland. They also mention that there is already some differentiation, for instance through the Scotland shortlist occupation list, however with more Scottish involvement as currently this is done through the Home Office without the Scottish Minsters or the Scottish Parliament.

In the long term they believe it would be possible to operate concurrent powers on migration between the UK and the Scottish government. This would allow for instance for Scottish specific visas. They recognise however that there would need to be safeguards to ensure that people under such visas would then only stay in Scotland. Given that other parts of the UK, such as London, also want differentiated treatment, they believe that this a realistic long-term goal. They also stressed that this is a discussion paper and with it the Scottish Government wants to start off a conversation.

Dr Kyambi responded that she believed that this was a good place to start the conversation. However, she also stressed evidence emerging from the National Conversation on Immigration that indicated that discussions of migration as a solution to population concerns is currently only being discussed at high level meetings and not in the general population. She believes that there needs to be good public understanding of it, for such an argument to succeed.

Mr. McKinney asked whether his understanding is correct that the enforcement of the immigration regime would remain with the Home Office even if the suggestions from the paper would be taken over. Speedie and Sunderland stated that this is still being discussed but for the moment this assumption would be correct.

Ms. Ang mentioned her own experience from the US where in practice there is a lot of tension between the different statutory authorities. In the UK the Home Office has been patrolling with Police Scotland and also worked with charities in London. It was later established that these charities need not have worked with the Home Office. She argued that this situation should be used for charities to take more independent legal advice and to grow in confidence.

But she also explained that in the US the tensions are so high that there are so called ‘sanctuary cities’ where the city refuses to enforce immigration laws and will only cooperate to the bare minimum. Such an attitude would of course not be beneficial. But she also stated that she does not believe this is necessarily an issue in the UK.

Finally, another comment from the table was made about the Portuguese model of ‘citizens houses’. There people could go to one big building that exists in every town and city where they can get all the information they require from TV licenses to social benefits. Most importantly people in Portugal go there with pride, which is a change in attitude from the experience Ms. Ang described in Scotland.

This concluded the round table and the presentations. The next events are the “Human Rights after Brexit: Gaps? Enforcement? Progress?” on Tuesday 27th of February 2018 in Glasgow and “Brexit Transition and the Future Trade Deal: Implications for Citizens’ Rights” on the 20th March 2018 in Edinburgh.

[1] Conor James McKinney, “Case of Brits keeping EU citizenship stalls in Dutch Courts” (FreeMovement, 6th march 2018) https://www.freemovement.org.uk/dutch-case-revoking-article-50-comes-sudden-hault/  
[2] R (Gureckis) v Secreary of State for the Home Department [2017] EWHC 3298 (Admin) see further, https://www.freemovement.org.uk/ngo-victory-home-office-policy-rough-sleepers-found-unlawful/
[3] Scottish Government, “Scotland’s Populations Needs & Migration Policy” http://www.gov.scot/Publications/2018/02/5490