A reading of the tabloid press over the last five years or so would have you believe that (EU) migrants are a scourge, that as a European Union member state we can do nothing to stop them coming, that we cannot control them once they are here, nor can we deport them. As a result, taking back control of our borders became an important theme for those advocating Brexit.
The real picture is different. This is not the place to make the case for or against migration. Suffice it to say that for many economists, the argument is overwhelmingly in favour. For sociologists the picture is more nuanced. For some communities, migration is a benefit. It adds colour, diversity, life. For others, migration detracts from the local identity. Lawyers do not, as a profession, take a collective view on any of these questions. Instead, they focus on the rights of migrants, the limits of those rights and the obligations which are placed on the state and on employers.
So if we take this tack, then what scope—or not—might there be for taking back control? Well, the key document under EU law is now the Citizens’ Rights Directive of 2004 which has been implemented into UK law most recently by the Immigration (European Economic Area) Regulations 2016. Does this really say that under current EU law on free movement the UK cannot impose restrictions on EU migration?
Not exactly. The Directive does not give an unrestricted right of free movement. Rather it considers in what capacity an individual moves (eg as a worker) and the length of their stay, before determining what rights they get. In summary, for the first three months, any EU national can come to the UK. However, they can only stay in the UK for more than three months if they are (1) economically active (as a worker, including as a work seeker, or as a self-employed person) or (2) semi-economically active (as a student or as a “person of independent means” but they must have comprehensive sickness insurance and sufficient resources) or (3) a family member of an EU national exercising one of these rights.
Once they have done five years of lawful residence as either an economically active or semi-economically active person EU nationals are entitled to “permanent residence," and the right to remain in the UK irrespective of the capacity in which they are now living and working.
This then raises the question about enforcement. What happens to those who overstay the three months but have no job and no money? Who are they? Well the answer is: no one knows. This is because there is currently no registration system of EU nationals coming to the UK.
"Before a complete overhaul of the system is envisaged, the government should look at what the UK can already do under existing rules"The Directive does allow for such a system: Article 8 says “for periods of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities.” Lots of Member States do do this, especially those like Spain with an identity card system. It enables them to collect data on how many EU nationals are in the country and in what capacity, and to monitor those who are seeking work. As the government admitted in the summer, it does not collect this data and so it cannot be rigorous in removing those who have not found work and who are not able to support themselves, as countries such as Belgium do.
Since May 2016, however—so starting a few weeks before the fateful referendum—the government has exploited some flexibility, and been significantly more pro-active in deporting those EU nationals who are homeless, with homelessness presumably being a proxy for not being either economically or semi-economically active.
Then, this February—so before the Article 50 process had started—further new powers came into force, enabling the Home Office to remove a person it considers does not have a right of residence. This may be because the EU national does not have a job (and so is sleeping rough) or cannot show they have sufficient resources (again they may be sleeping rough) or comprehensive sickness insurance (this would cast a much wider net and catch a lot of EU nationals who have been reliant on access to the NHS for their healthcare).
The problem, from a “take back control” perspective, is that the EU directive does require certain safeguards for individuals being deported: the decision must be taken on a case by case basis, there must be a right to review or appeal, and they must be given one month to leave. Rounding up the homeless and deporting them does not satisfy these conditions. So it remains to be seen if the new powers the UK has taken can be sustained.
The UK does, of course, require a passport for entry. It can and does refuse EU nationals entry on public policy or security grounds; for example, those with serious criminal convictions can be blocked. But again, no data is available on how many EU nationals are denied entry on this basis. In answer to a parliamentary question in the Lords, Home Office minister Susan Williams said “Due to the way in which data is recorded for the refusal of admission of European Economic Area nationals, it is not possible to provide figures on refusals by reason of public policy, public security and public health.” It’s thought that the figure is in the region of 5,000 a year.
So before a complete overhaul of the existing system is envisaged, it might be sensible for the government to collect more data, and look more rigorously at what the UK can already do under the existing rules, and reflect on how this might be extended. Before starting all over again, it might also consider how far it is possible to build up the capacity to emulate the additional sorts of registration requirements found in Spain, or the monitoring and enforcement methods found in (say) Belgium. And if, on looking at all that, it concludes that there is considerable scope for tightening up free movement, then the unavoidable question arises: if Britain can already control EU migration, why have politicians and governments of all colours not used those powers to date?
