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The free movement of persons provided under EU law has two main dimensions. Firstly, it signifies the ‘immigration’ dimension of the right to entry and residence in another member state. Secondly, it signifies the ‘terms and conditions’ of residence as to the right to equal treatment compared to nationals of the host member state. The freedom movement of persons is a legal construct founded in EU law. It ceases to be valid the UK leaves the European unless the UK Government negotiates continuing membership of the single market of EU through some agreement. In this context, this essay will discuss the development of the freedom of movement of persons after Brexit and how the UK will deal with such development.
Potential development models, challenges and impacts
Brexit has the potential to expose nationals of other EU member states in the UK as well as British nationals in other EU states. The potential risk may undermine the fundamental rights of free movement and be detrimental to the UK Parliamentary sovereignty. There are two scenarios that could occur in case of Brexit. In the first, if Brexit is on non-negotiated terms, Union citizens lose the right to live in the UK. Likewise, EEA nationals will also lose benefits from the rights conferred by the Citizens Directive 2004/38/EC, as implemented in the Immigration (EEA) Regulations 2006. This means repealing Section 7(1) of the Immigration Act 1988, by which a person with EU rights can enter the UK without leave to enter or remain in the UK. Thus, in the second scenario, the exit is agreement based on negotiated to consider the factor of EU citizens in UK and UK nationals in other EU states. This raises the question of considering not just the question of freedom of movement alone but other social policies, fundamental rights or anti-discrimination laws.
Brexit will surely bring a reduction in the freedom of movement. There is a potential risk economic instability in the UK, which could be found in the onward or return migrations. Brexit will lead to loss of Union citizens of the UK citizens and the freedom of movement for UK nationals. Brexit will, thus, create obstacles to the onward or return migrations as Brexit will take away the freedom of movement increasing complexities regarding transnational and citizenship‐divergent families. The answer may lie in the principle of differentiation, which is a means to address
internal heterogeneity within the EU. Brexit will involve dealing with variety of heterogeneity, including the social policies, fundamental rights and anti-discrimination laws, such as Article 45 of TFEU. There has to be a differentiated integration, which is used as a means to overcome negotiation deadlock. There will be varied state preferences, dependence and capacity. In such case, differentiated integration is subject to viable and mutually beneficial solutions for all stakeholders. It requires collective good and economies of scale; weak externalities between concerned groups; and a favourable institutional bargaining positions of the countries. Brexit will create different groups with respective preferences but weak externalities between EU and the UK as Brexit will affect Union citizens including UK citizens that have been benefitting the freedom of movement within EU. Brexit will impact the UK and EU economy, which will require identifying and integrating different interests and perspectives in order bring a viable and mutually beneficial solutions for all stakeholders for collective good.
While considering about differentiating integration, it must also consider the tension between rules of freedom of movement and the UK labour market institutions. Brexit will cause a socio-economic effect of migration, which contributed to the Brexit vote. The EU rules on the freedom of movement and the integrated nature of the EU common market will make it unlikely that differentiation will be the preferred response. One way to address this unlikelihood is to consider differentiation in the four freedoms provided by EU, which are free movement of goods, capital, services, and persons. EU leaders stress on the position that there will not be any compromise on the freedom of movement. They stress that accessing the single market will require the acceptance of the four freedoms. However, it depends on the Brexit negotiation. Brexit could end freedom of movement and the UK may strike a free trade deal, or negotiate for a reform on the freedom of movement to protect the UK interests.
There is a progressive problem indicating a trade-off between labour and welfare rights defined by solidarity and shared identity and open immigration regimes. In regard to the free movement of persons in the UK, the EU may accept this problem and resolve it in its favour. This also means that EU can combine the freedom of movement of persons with the other freedoms of goods, capital and services. It also means that it could treat freedom of movement of person qualitatively different from the other freedom, which may not consider the dilemma of considering labour and
welfare rights. The resolution that could be negotiated by EU may lean towards a capitalistic approach, which may be indifferent towards the Brexit’s impact on social, political and economic future of the UK. This very much depends on the negotiation outcomes, which are subject on numerous issues including immigration, financial regulations, and trade in goods, services, agriculture, fisheries. This presents a complex layer of varied intertwined issues, which could be address possibly by a differentiating approach inculcating rationality and cooperation.
The UK House of Lords provides three possible models for regulating EU immigration after the UK leaves the EU. The first is a free movement with an ‘emergency brake’. The second is the free movement with a job offer. These two models retain the basic principle of rights of EU nationals to settle in the UK for long-term stays, with new restrictions. The third is work permits model that would require non-UK nationals a work permit for employment in the UK. The first model of an ‘emergency brake’ calls for temporarily restriction of EU nationals’ access to in-work benefits. It is an alert and safeguard mechanism to respond exceptional magnitude of inflow of workers from EU states over an extended period of time. The UK can restrict newly arriving EU workers to non-contributory in-work benefits for a total period of up to four years since their employment. The second model is a light-touch work permit system that allows an EU citizen with a job offer in the UK to qualify for a work permit. It reconciles the objectives on control of immigration from the EU and access to the Single Market. The third model is a work permit system can be more or less restrictive, depending on the criteria for obtaining a work permit.
The three models are aligned with Article 45 of TFEU that allows a member state to restrict the right to freedom of movement based on public policy, public security, or public health. The justified restriction could be explained by referring to the case of Schumacker, where the claimant, Mr. Schumacker who lived in Belgium was subject to limited taxation in Germany, where he worked. This personal and subjective situation of the claimant was not considered by Belgium and the claimant was denied the benefit of the splitting tariff available for married couples. Mr Advocate General L´eger held that it is discriminatory to not consider personal circumstances and family responsibilities where he exercises his right to free movement while residing in another member state. The case decision is based on
freedom of movement. Thus, in case of Brexit that will remove this freedom of movement, the UK can provide justified restriction.
Brexit may bring a new immigration system, which is a single route system giving access to highly skilled and skilled workers from any country. This is, however, not free from uncertainties. The Withdrawal Agreement (2019/C 384 I/01) provides extensively on EU citizens who are residing in the UK and UK nationals in the EU. Part 2 of this Agreement provides for such citizens’ rights, entitling those EU nationals that decide to stay in UK to stay in the UK or those UK nationals in EU states to stay in that state after Brexit, as per Article10(2). Part 2 also provides rights of family members of EU citizens and EU citizens’ right to leave. The citizens' rights aim to protect the choices of over 4 million EU citizens in the UK and 1 million UK nationals in other EU states. However, it does not provide provisions that directly address future UK immigration policy. It provides for continuation of the Common Travel Area between the UK and Ireland. Thus, the Brexit may not wholly end the freedom of movement of persons reserving certain exception such as the Common Travel Area. It however expects to end the free movement based on the political declaration, by imposing restriction of movement in the form of short-term business visits and visas. This means the UK can set its own immigration policy.
The expected immigration system after Brexit will be economy-based opening up job opportunities with a threshold that exceeds £30,000 with certain specific shortage occupations. This means that it will operate on a work-permit system that allows skilled-worker. This also raises the question of whether preferential treatment will be meted to EU nationals. One side of the argument, favouring this treatment, states that trade and movement of labour are interlinked and linked with closest neighbours. The other side, opposing, states that EU migration for work must be under the existing work permit scheme for non-EU nationals. Restricting work permits to only skilled workers may reduce EU to 100,000 yearly. The problem with this system is that it involves a prolonged process affecting skilled-workers and does not allow non-graduate labours that the UK needs. This is problematic given that the UK faces shortage of skilled workers as well as non-graduate labour. This will have multiple impacts, for example, losing NHS nurses from the EU will create a challenge. Although UK nationals form 92% of the social care workforce and 94% of the NHS workforce, the cost of living in London and the south-east pushes towards relying more on EU nationals workforce.
As the UK has been part of the free movement area for a long time, the transition could expect challenges and long period in adjustment process considering how its immigration and labour market system is different. For example, the care sector has been lacking funding in regard to its recruitment and retention of staff. Brexit does not provide certainty towards funding this sector properly. If Brexit strategy does not provide certainty in terms of the areas that have been discussed so far, the power negotiation between the UK and the EU will lead to Europeanisation of the UK after Brexit. There are three independent variables that could determine whether or not the UK will be push to adapting Europeanisation. They are domestic power configurations, mediating domestic institutions, and actors' strategies. When these variables were applied to the agreement on the free movement of persons between Switzerland and the EU, it was found that adaptation to Europeanisation is not subject to the number of veto points. There are two factors: i) strength of the actors that could activate or threaten to activate the variables; and ii) actors’ counter-strategies favouring change. Lessons could be derived from Switzerland agreements with EU on freedom of movement of person. This country has seen an increase in foreign population in the last to last decade. last fifteen years. It adapted to the problem with its two-tier immigration focusing on controlling demand for foreign labour, but placing qualification based on skills to enter the country.
This essay has shown that the options discussed here reflects one intention of the UK, which is to regain the freedom, rights and sovereignty that was transferred EU. The development of freedom of movement of persons after Brexit presents one of the negotiations that the UK has to use its domestic power configurations, domestic institutions, and strategies with the aim to achieve a change that favours it. The models suggested by the House of Lords are all such negotiating and managing workforce movement and employment that aim to cater to the UK’s needs. They have to balance social, economic and political rights of the concerned nationals, whether UK or EU citizens affected by Brexit.
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