Migration between the UK & The EU after Brexit: The Political Declaration

Introduction

 The Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom (October 2019) records the  limited ambitions that the UK and the EU have as regards migration back and forth between the UK and the EU after the end of the transitional period (31 December 2020. For EU citizens and UK nationals moving for work or study the first time in 2021, the Withdrawal Agreement will have no relevance. Instead there is expected to be a new agreement focused on trade; an agreement  that contains only limited mobility provisions. There will be no return to free movement between the UK and the EU. There will be no provision to enable UK nationals to move freely between one EU state and another.

Any aspect of migration not covered by this new agreement will be left to the UK and the EU alone to determine, each within their own sphere. General mobility for employment or self-employment is not included in the Declaration. That means that as regards the migration of EU citizens to the UK, the UK Immigration Rules alone will make provision. And for UK nationals moving to an EU state, EU rules, or the immigration rules of the state in question, alone will make provision. Thus, a German banker who wishes to work in the UK for a London office will be subject to UK immigration rules. The same is true for a self-employed Italian journalist who wishes to be based in the UK and sell stories to media outlets in the UK and the rest of Europe.

The negotiating mandates of the EU and the UK will be covered in another post but it is important to to set out in isolation what the Political Declaration covers and what it could be the basis to achieve.

Services and Investment

 Among other things, the Political Declaration makes provision for agreement in the areas of services and of investment. Paragraph 30 notes in very short order that arrangements made as regards market access and non-discrimination should allow for the temporary entry and stay of natural persons for business purposes in defined areas. However, it does not set out what areas are defined. Therefore, the scope could be broad or narrow. Clearly, the provisions extend to services providers. In addition, they may extend to investors.

It would make sense for the investors to be covered by  these mobility provisions. The UK’s Tier 1 (Investor) immigration route, which requires millions of pounds to be invested in order to obtain a visa, may be appetising to a Chinese national or a Russian national who wish to their money and themselves to a liberal democratic state but it is likely to be wholly off-putting to a French citizen investor who may live freely anywhere in France and the EU and who will enjoy a lifestyle that leaves little scope to hunger for a UK residence permit. There is a need for the UK to operate an investor migration route that is appetising to EU citizen investors who wish to invest millions of pounds in the UK and  who wish also make the short hop across the English Channel and reside here.

What about establishment in the UK? Paragraph 29 of the Declaration states that service providers and investors are treated in a non-discriminatory manner, including with regard to establishment.  It’s possible that the reference to establishment could provide a base from which to build a migration route that is more than temporary for services providers and investors; one that leads to residence and settlement.

What about the mutual recognition of professional qualifications? As regards the existing arrangements for those within the scope of the Withdrawal Agreement, see my blog post Recognition of EU Citizens’ Professional Qualifications under the Withdrawal Agreement and the European Union (Withdrawal Agreement) Act 2020 .As regards persons who after the end for the transition period (31 December 2020) apply  in the UK for recognition of a professional qualification obtained in an EU state, or where a person applies in an EU state for recognition of UK-obtained qualification, paragraph 34 of the Declaration simply states that the UK and the EU should also develop appropriate arrangements on those professional qualifications which are necessary in the pursuit of regulated professions, where in the parties mutual interests. Presently applicable EU law covers not only professions such as lawyers, accountants, and architects, but also caring professions such as doctors and nurses. The UK has a strong interest in maintaining the current arrangements found in EU law in any new  UK-EU agreement.

Other Migration Routes

The Political Declaration contains a section on mobility, which notes that the UK (note, not the EU) has decided that the principle of free movement of person between the EU and the UK will no longer apply. Thereafter, the mobility arrangements that are contemplated are of a very limited nature.

Paragraph 49 of the Declaration states that such mobility arrangements as are made must be made on  the basis of non-discrimination between the EU’s member states and also on the basis of full reciprocity. The scope of ‘full reciprocity’ is an interesting point. It would appear to limit the scope of what the UK may be prepared to agree. The EU already has a shared competence with its member states in the area of immigration. In the exercise of such competence it has made some provisions for economic migration by third country nationals into its territory (only Ireland and Denmark do not participate in these arrangements). UK nationals  will be treated as third country national after the end of the transition period (31December 2020) when they migrate to the EU for the first time. If there is to be full reciprocity between the UK and the EU, then any arrangement agreed between the UK and the EU cannot fall below the standard of the current migration rules that already apply to third country nationals under the EU’s own legislation.

Were an agreement to be made in those areas of mobility where the EU has already legislated, this would appear to limit the scope for the Home Office to set narrower immigration rules for EU citizens coming to the UK for the same purposes. While the EU’s rules on immigration are a form of immigration control and not notably generous, they may nonetheless exceed what the current UK government is prepared to agree to as regards immigration to the UK.  If it wishes to avoid full reciprocity based on existing EU legislation for third country nationals, the UK may simply walk away from agreeing anything in those areas where the EU has already legislated.

As regards short-term visits, the Declaration provides that the UK and the EU are to provide through their domestic laws for visa-free travel for short term visits. The EU already has Schengen Area visitor rules and the UK has its visitor Immigration Rules. Does the requirement for full reciprocity mean that they need to be aligned? Or will the any new agreement accept a measure of divergence in practice?

Whatever the answer to that question, it is clear that there will be no requirement for a visa in order to board a flight, the Eurostar or a ferry when travelling between the UK and the EU on a short-term basis. That being the case, and given the number of journeys back and forth between the UK and the EU, it would make sense to make provision for all EU citizens arriving on local journeys from the EU to be able to apply for permission to work while in the UK, rather than having to make an entry clearance application from their EU state of residence.

As regards temporary migration, the Political Declaration states that the UK and the EU agree to consider conditions for the entry and stay for purposes such as (but not limited to) research, study, training and youth exchanges. Thus, temporary mobility provisions are envisaged. No further detail is given. The EU has already legislated in the area of temporary migration for third country nationals seeking to enter the EU (and the UK has its own applicable immigration rules). Accordingly, if agreement is to be reached applying the principle of full reciprocity it is difficult to see how any UK-EU agreement could make a lower standard of provision than that which the EU provides already to all third country nationals .

For those who do move between the UK and the EU to stay or reside, the Declaration also makes a very short statement saying that the UK and the EU also agree to consider addressing social security coordination in light of the future movement of persons. Hitherto, coordination of social security has taken place under the Regulation 883/2004. Coordination enables a person who has worked in more than one EU state to aggregate their national insurance contributions (or equivalent) paid in each state  in order to become eligible for state pensions and social security. It also provides healthcare entitlements based on such contributions. For more information on its importance see my blog post, Pensions, Healthcare and Social Security for EU Citizens after Brexit: the forgotten aspect of Free Movement .

It is clearly to the UK’s advantage for equivalent arrangements to continue. They do not affect UK immigration control but do enable those who migrate lawfully to lead meaningful lives. In addition, not only would it make the UK attractive to companies with offices in the EU as well as the UK (they will be able to move staff around without affecting pensions and social security entitlements, etc.) and  it would also enable UK nationals to work in EU states on the same basis,  There is scope there for current arrangements to continue, albeit under a new international agreement and not EU law.  However, the current coordination regime requires a surveillance authority in the form of an Administrative Commission of the European Commission and also a dispute resolution mechanism is in the form of the Court of Justice of the European Union (CJEU). There is no indication that the UK is prepared to agree to either of those sorts of regulation. Quite the reverse. In that context, it is unclear how the UK can make an agreement that enable it bolt onto the EU’s multilateral coordination regime for social security, healthcare and pensions, without having such a surveillance authority and dispute resolution mechanism. Some creativity may be needed. Any arrangement made will need to apply not just to EU citizens and UK nationals but also to lawfully resident third country nationals.

As regards immigration control, there is also a provision in the Declaration for the UK and the EU, in line with their applicable laws, to explore the possibility to facilitate the crossing of their respective boarders for legitimate travel. This is a reference to the administration of immigration control as between the UK and the EU. No further detail is provided. There are a number of current EU directives in the field of immigration control that regulate the nuts and bolts of crossing borders. Both the UK and the EU have a strong interest in embodying such provision in a future agreement.

Finally, the avoidance of doubt, the Declaration states that the provisions will be made without prejudice, to the Common Travel Area arrangements applicable between the United Kingdom and Ireland.

3 comments

  1. […] The document also makes it clear that the parameters for the future relationship are those set out in the UK-EU Political Declaration of October 2019, and that a Comprehensive Free Trade Agreement (CFTA) is the core of what is sought to be obtained, see my blog post Migration between the UK & The EU after Brexit: The Political Declaration. […]

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