At the time of writing (early March 2019) it is impossible to be certain what immigration rules will be applicable to EU citizens and their family members newly arriving in the UK on and after 30 March 2019, or a later date if Brexit is postponed. Will the continuity of free movement provisions in the Withdrawal Agreement apply in the so-called transition period to the end of 2020? Or, in the event of no-deal, will European Temporary Leave to Remain be the status need to secure lawful residence and work authorisation? If implemented, how will the latter dovetail with the new immigration system foreshadowed in the Home Office White Paper (December 2018) on the future immigration rules applicable from 2021 onwards?
The lack of certainty frustrates the ability of legal practitioners to advise clients even as to short-term choices, never mind as to the strategic choices facing them when contemplating migration with a view to settlement or family reunion.
Amid the fierce blaze of political debate occasioned by Brexit, questions as to the future of immigration policy burn brightest. In what sense is ‘control’ established in the period down to 2021? How can there be contemplation of two such different policies (continuity of free movement or European Temporary Leave to Remain) in that period, when they will have such different effects on the actually existing UK economy? What evidence did the Home Office gather and what analysis did it perform when deciding that European Temporary Leave would do in the event of no-deal?
In the catechism of Brexit, questions lead not to answers but merely to further questions, themselves yet to be answered. Worse, policy appears to be made in the image of doctrine about the need for control, rather than being based on evidence. The Migration Advisory Committee (MAC) Report on EEA Migration in the UK (September 2018) found no material impact on the rates of pay or employment prospects of the settled population occasioned by EU migration; yet it went on to prescribe the restrictive application of Tier 2 (General) work permit rules in modified form as a remedy for an ailment it had found not to be present. Such cognitive dissonance, privileging the doctrine of control over the evidence it analysed, served it well: its recommendations were adopted as the way ahead in the subsequent Home Office White Paper.
That White Paper sets out a future for immigration control that would require the expansion of Tier 2 (General) by several orders of magnitude to cope with skilled migration from the EU to the UK. Even if it were to function smoothly and briskly (a big ‘if’), the impact on business activity in terms of cost, administrative burden, delay, and the ability rapidly to expand capacity when order books fill up, could be profound. In advocating the use of Tier 2 (General) no account appears to have been taken of the large number of vacancies currently unfilled in the UK labour market. Further, there is no adequate predictive study or model of what will occur if the changes contemplated are implemented.
In the White Paper, the stabiliser that may mask any economic damage done by replacing free movement with the proposed immigration rules, may be the ‘temporary’ 12-month, so-called low skilled, migration route. Yet even this has the capacity to create its own problems. EU citizens and others entering under this route may simply remain in the UK after 12 months in such numbers that the notion of control is rendered illusory.
In practice, if the immigration system from 2021 serves the UK in the office of a wall, facilitating immigration control, other Member States will return the favour when British citizens seek to migrate into the EU for work purposes. Economic migration is not harmonised at EU level. British citizens will face different economic migration rules in each Member State and very limited rights to move from one Member State to another. Moreover, one or more Member States may seek to introduce appetizing economic migration rules with the aim of drawing business away from the UK. At what point does the price of control become too expensive?
If the White Paper proposals are implemented, there will be consequences for businesses based in the UK who seek to fulfil contracts for services in the EU 27 and who seek to transfer multinational staff on a short- or long-term basis to branches inside the EU. Over time, the UK will become less attractive as a site for European regional operations. The UK with an immigration system controlling access to a society and market of 60 million+ people will operate alongside the EU with a population of 450 million+. After Brexit the risk is that the UK will be to the EU as the Moon is to the Earth. True it is that the Moon affects the Earth’s tides. But it is the Earth that holds the Moon in its orbit.