In February 2020 the United Kingdom government published its negotiating strategy as regards its future relationship with the European Union in a document called The Future Relationship with the EU, the UK’s Approach to Negotiations. The document is remarkable for its lack of ambition as regards migration and mobility between the UK and the EU. In setting out the overall policy framework the UK government states that it will not agree to any obligations where UK laws are aligned with those of the EU, or for European institutions, including the Court of Justice, to have any jurisdiction in the UK.
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.
For the UK, such a CFTA should be along the lines of other free trade agreements already agreed by the EU in recent years; special reference being made to the one between the EU and Canada. Further, the Government’s position is that if it is not possible to negotiate a satisfactory outcome, then the UK’s trading relationship with the EU will look similar to that between the EU and Australia. But Australia has no over-arching trade treaty with the EU and the reference to the EU-Australia relationship is simply a callow way to refer to no deal.
The UK government states that all the areas of policy set out in the Political Declaration are relevant to the UK’s future cooperation with the EU. However, it does not consider that every area needs to be incorporated into a negotiated treaty or similar arrangement. It notes specifically that policy areas such as immigration are for the UK government to determine within a framework of what it refers to as ‘broader friendly dialogue and cooperation between the UK and the EU: they do not require an institutionalised relationship’. Plainly, the UK has no desire to enter into larger, more comprehensive mobility and migration arrangements. For the government’s plans for the UK’s immigration system, see my blog post A Mortification of the Flesh: UK Immigration Policy for EU Citizens after Brexit.
The UK government hopes that the broad outline of any agreement will be clear and capable of being rapidly finalised by September 2020. However, if that does not seem to be the case at the June 2020 meeting between the EU and the UK, it is going to decide whether or not to move away from negotiating and to concentrate solely on domestic preparations for the end of transition period at the end of 2020. In June 2020 it will decide whether or not to abandon the idea of a EU-UK future trade agreement and to start preparing for a no deal Brexit at the end of the transition period.
Investment and Mobility
Thereafter as regards mobility and migration areas to be embraced in a CFTA, the UK government’s proposals are decidedly narrow. Chapter 9 (of Part 1) concerns investment and covers provisions on investment including market access, national treatment, and the prohibition of performance requirements. It includes a provision that in line with existing EU trade agreements the agreement should include provisions on investment embracing provisions for senior management and Board of Directors, in order to prevent restrictions on residency and nationality for senior personnel.
That suggests that there is going to be some sort of provision for those who are investing via companies or other commercial entities to allow them to migrate to the UK for the purposes of overseeing their investments. That is not the same thing as of course individual investors being granted visas on the basis of putting money into the UK, as happens under the Tier 1 (Investor) route of the Immigration Rules.
Chapter 9 states that both sides should schedule their commitments against these obligations in a way that provides a clear and predictable basis upon which EU businesses can invest in the UK and UK businesses can invest in the EU. The baseline for the negotiation is said to be both parties best offer to date. It is very opaque but seems to suggest that the UK is at least a little sensitiveto the idea that people who are involved in commercial entities who wish to invest in the UK might not have any migration rights without provision for mobility and that such provision is necessary. That said, there is no suggestion that any such mobility would be more than temporary for the individuals concerned or that it would lead to residency or permanent residence.
Temporary Entry and Stay for Business Purposes
Chapter 10 (of Part 1) deals with temporary entry and stay for business purposes. It is the UK’s ambition that the agreement should promote trade and services where facilitated by the temporary entry and stay of ‘natural persons’ (‘people’ to non-lawyers) for business purposes, otherwise known as service provision ‘Mode 4’ (being a reference to mode of service delivery in the General Agreement on Trade and Services (GATS) arrangements under the World Trade Organisation (WTO)). The agreement is to include commitments that will provide legal certainty to service suppliers and businesses who move employees between the UK and the EU as well as investors.
The UK government advances the proposition that the agreement could build on Mode 4 commitments in the EU-Canada Agreement (CETA) and the EU-Japan Agreement (EPA) and cover, among other things, short-term business visitors, including for establishment purposes (not a reference to a person securing residence as self-employed); intra-company transferees; contractual service supplies, and independent (i.e. self-employed) professionals and investors.
Thus, there appears to be some ambition for these persons to be able to come to the UK on a temporary basis. That includes self-employed persons so long as they are professionals and investors. Once again, there is no suggestion that any such mobility would be more than temporary for the individuals concerned or that it would lead to residency or permanent residence.
The document notes that both parties should set out on a reciprocal basis the activities that can be undertaken by short-term business visitors. The current business visitor rules are the UK’s business visitor Immigration Rules (including the permitted paid engagements route) and the corresponding EU’s Schengen business visitor rules (in addition to business visitor rules in EU States that do not participate in the Schengen area). The UK’s ambition is that, on a reciprocal basis, these would evince a clear understanding of when a person can come in to the UK as a business visitor and what work they can do while they are in the UK (including, presumably, whether or not they can take a fee from a UK based client). As the business visitor rules are to be reciprocal, the Schengen business visitor rules would need to make the same provision. That raises at least three questions: (i) what activities will be permitted as a business visitor?, (ii) will a business visitor be able to take a fee from the client in the country visited?, and (iii) for how long will be person be admitted to stay as a business visitor? Much remains to be decided.
Chapter 10 also notes that the provisions of the agreement will be without prejudice to and consistent with the UK’s recently announced points-based immigration system. It is clear that this is not to be a route to settlement in and of itself. Notwithstanding that it is intended to be a route for the purposes of a temporary stay, nonetheless will there be a route out of the business visitor route to permit, in prescribed circumstances, a person to switch on an in-country basis into some other form of economic migration residency under the points-based Immigration Rules? Without such a route, the UK will find that some intended beneficiaries simply invest or provide services in other EU states, where investments or temporary service provision can be readily converted to establishment, residence, and permanent residence.
Mutual Recognition of Professional Qualifications
Chapter 12 (of Part 1) deals with the mutual recognition of professional qualifications. It is decidedly unambitious in its scope. It wants the new CFTA to provide a pathway for mutual recognition of professional qualifications underpinned by regulatory cooperation. It notes that comprehensive coverage would ensure qualification requirements do not become an unnecessary barrier to trade and regulated services across modes of supply between the UK and the EU. However, it goes on to note that the agreement should ensure that parties can set their own professional standards and protect public safety. It states that the parties should explore how competent authorities could recognise applicants who demonstrate that they meet the host State’s standards.
This looks like trying to reinvent a wheel, while forgetting that what makes the wheel that you already have work is that it is round. There is already a mutual recognition regime of professional qualifications regime in place at present under various EU directives, see my blog post Recognition of EU Citizens’ Professional Qualifications under the Withdrawal Agreement and the European Union (Withdrawal Agreement) Act 2020 and that regime is extended under the Withdrawal Agreement for its current beneficiaries. It is clear how a proper mutual recognition of professional qualifications regime can work because we have one and it does work. The UK government should actively explore how to continue to participate in the existing mutual recognition regime or duplicate its provisions.
Social Security Co-ordination
The UK government contemplates other UK-EU agreements outside of the proposed CFTA. These are dealt with in Part 2 of its statement. These include a proposal for separate agreement on mobility and social security coordination. The UK notes that social security coordination can remove barriers and support the mobility of labour between countries. It notes that arrangements that provide healthcare for tourists (like the current EHIC card) and short-term business visitors and service providers; that allow workers to rely on contributions made in two or more countries for their state pension access, including up-rating principles; and that prevent dual concurrent social security contribution liabilities; could be good for businesses and support trade. Well of course they could be, because they already are, and are provided for in the currently applicable and comprehensive EU coordination of social security Regulation 883/2004.
The UK government notes that the arrangements could benefit UK nationals and EU citizens travelling or moving between the UK and EU. Well that is putting it mildly, see my blog post Pensions, Healthcare and Social Security for EU Citizens after Brexit: the forgotten aspect of Free Movement .
It states that the UK is ready to work to establish practical reciprocal provisions on social security coordination. However, it appears that the current EU co-ordination regulation, 883/2004, is not to be a model. It notes that any agreement should be similar in kind to agreements the UK has with other countries outside the EU and respect the UK’s autonomy to set its own social security rules. But even at the moment, under EU law social security is only coordinated between national systems rather than harmonised at EU level. UK autonomy in rule-setting is already fully respected. It is not clear how that comprehensive coordination of Social Security, healthcare and pensions regulation (883/2004) can be bettered or how a supervisory authority (like the current Administrative Commission) or dispute resolution mechanism (like the Court of Justice) can be replaced by alternative provision.
Further, the UK government notes that these arrangements should support mobility by easing the process with those working across borders, including underpinning reciprocal arrangements on temporary entry and stay for business purposes. However, any future co-ordination treaty will need to do more than that. It is going to have to provide for those EU citizens and others who have come to the UK from EU states and who secure UK residency as economic migrants under the UK’s own Immigration Rules. If it does not, such persons will be disincentivised from migrating to the UK as they will not be able to aggregate their national insurance contributions (for pension, healthcare, and social security purposes) when they have worked in more than one state including the UK and paid contributions in each one.
Asylum and Illegal Migration
Other arrangements which are to be made under separate treaties include, if possible, an agreement on asylum and illegal migration. The UK government statement notes that it has made a specific commitment to negotiate a reciprocal agreement for family reunion of unaccompanied children seeking asylum in either the UK or the EU, where such reunion is with specified family members in the UK or EU and where in the child’s best interests. It notes that beyond this, the UK is open to an agreement regulating asylum and migrant returns between the UK and EU or alternatively with individual member states, underpinned by data sharing to help counter illegal migration and deter misuse of asylum systems. Clearly the UK government is seeking to agree some kind of treaty covering similar terrain to the Dublin III Regulation (604/2013) that governs the return of asylum seekers who have passed through other EU states on their journey to the United Kingdom.
That’s All Folks
That is all that the UK government’s statement has to say. The negotiating strategy is notable for its limited ambition and narrow scope. It is notable for shying away from taking any precedent from EU law and using it as the basis for a future treaty arrangement. It makes no provision for the economic migration from the EU by employees and the self-employed. Notwithstanding that the UK will be competing with an EU of over 450 million people and 27 states, where labour mobility between countries for work, self-employment, and service provision is permitted and leads to permanent residence where desired, where there are generous family reunion rules, and which is further underpinned by a comprehensive mutual recognition of professional qualifications regime and a comprehensive co-ordination of social security, healthcare, and pensions regime; the UK government has chosen to plough it own furrow and hamper and impair the UK’s ability to attract business and ambitious people from EU states. In this respect see also my blog post A Mortification of the Flesh: UK Immigration Policy for EU Citizens after Brexit.
As a result, a German banker employed in a multinational bank may prefer Paris over London, and a self-employed Italian journalist working on international stories may base herself in Brussels or Barcelona rather than see the UK as her natural home. Gradually, perhaps slowly at first, but inexorably, the UK will be drained of a certain economic vitality and new life will flourish elsewhere.
It is a common place among advocates of the hard Brexit or no deal persuasion to cite historical precedents as to how in the past the UK, England, or the City of London, has flourished by its efforts alone. But history is full of examples. At its height, the Roman city of Londinium had a population of over 60,000 people and was an important financial and trading centre in the largest Empire Europe had ever seen. After the Anglo-Saxon invasion in the 5thCentury CE, Londinium fell into ruin and was abandoned. The invading Saxons established the by-comparison squalid settlement of Lundenwic to its west, partly by taking rubble from the ruined city. It took hundreds of years for London to regain its former eminence.