Introduction

It did not have to be this way. Despite Brexit and the avowed ambition of the Johnson administration to end free movement, there was plenty of scope for the UK and the EU to conclude a deal that made generous provision for migration and mobility for work, study, and service supply. Indeed, given that the UK to the EU exports primarily services (professional, commercial, etc.) and does so on a sustained basis that involves the movement of natural persons (or people as non-lawyers call them), one might have thought the UK national interest would require such generous provision to be a priority.

Provision for mobility and migration might have included not only adequate routes for short-term service supply but also routes for obtaining residence for those working as employed or self-employed, and thereafter routes to settlement. In such ways those working successfully and generating economic activity, having moved across the UK-EU border, could build on their success. To protect UK immigration control such arrangements might have required visas or entry clearance, as well as skills or income thresholds. But otherwise they would have been unimpeded by red-tape, high application fees, extra- charges, and needless sponsor requirements.  Similarly, provision might have been made for routes for study and training to enable UK universities to continue to compete with their EU counterparts. Such provision would have recognised that the European region is a small neighbourhood and that UK prosperity increases when the reality of the interconnected nature of the UK and EU economies is captured in mobility arrangements of mutual benefit.

The sheer number of business journeys back and forth between the UK and the EU, the need to attract entrepreneurial activity and investment into the UK, the need to enable UK nationals to work around the EU, and the need to attract multinational companies to prioritise their UK entities as centres of commercial endeavour, ought to have enlarged the UK appetite for a better economic mobility and migration regime with its EU partner. Of course, there would have been UK immigration controls (visa, conditions attached to permission to stay, clear expulsion criteria) and of course, wider access to the UK labour market would have been under UK control, but the UK as a place of economic activity and the ability of UK nationals to travel for work would have been greatly enhanced.

Instead, sadly, the UK’s ambition was limited. As regards the post-Brexit arrangements, the Political Declaration that accompanied the January 2020 Withdrawal Agreement spoke only of mobility for service provision and the possibility of entry and stay for research, study, training, and youth exchanges. Thereafter, by the time of the December 2020 Trade and Co-operation Agreement only short-term mobility arrangements for service provision and the like survived. On the UK’s part, there has been a poverty in ambition, as well as a failure of imagination as to what might have been achieved whilst retaining immigration control. Moreover, what has been achieved is thin gruel that serves the UK poorly.

The Problem Stated

Every time the UK puts a mobility and migration barrier up, either by only seeking to negotiate limited mobility and migration routes in trade treaties or by unilateral Home Office action as regards in-bound migration routes in the UK Immigration Rules, neighbouring states such as the Netherlands, Germany, and France, with their open regional mobility regime (EU freedom of movement) gain a competitive advantage. That is the reality.

Free movement still exists for economically active EU citizens as they move around the EU. The UK does not exist in a vacuum but alongside a neighbouring regional system of states that is much larger and which has a liberal economic and mobility regime that serves to stimulate economic activity and cross-border trade in services and goods. For the UK to be competitive it needs to…well, compete. At the very least, it needs to compete.

Whatever may be said about the comparative merits of economic migration regimes operated by the UK and EU states as regards people moving from outside the European region to the UK or the EU (as the case may be), within the European region EU states have a liberal economic migration regime among themselves that stimulates trade in services and goods. To match it and have immigration control, the UK needed to be far more ambitious. As things stand, over time, the migration and mobility regime in the EU system is bound to continue to deliver a clear reason to base commercial activity in EU states and not in the UK.

A Weak Reply

To such criticisms, it is no answer for the Johnson administration to opine that it has followed the base line of World Trade Organisation provision for mobility as part of the General Agreement on Trade in Services (GATS), or to point to precedents for economic mobility in treaties that the EU negotiated with far-flung countries such as Japan or Korea. There is nothing special about the EU-Korea treaty. Korea is a long way away and the limited mobility provisions in that treaty merely reflect what was politically possible when it was negotiated, the inter-continental distance between the parties, and the modest amount of economic migration that is possible as a result. To make a fetish out of such  precedents is a profound error and shows a wholesale lack of understanding of what the UK needs in its arrangements with its regional neighbour, the EU.

Problems with the UK’s new EU Trade and Co-operation Treaty

Even within the limited scope of what the UK sought to agree, the mobility provisions are a poor return. Two examples illustrate the point.

The Short-term Business Visitor provisions do not make any significant difference. The UK has not secured any ability for short-term business visitors to take a fee from a client in the host state (sometimes known as permitted paid engagement (PPE)). In other words, such visitors cannot be paid by a host state client when they travel to provide services.

This matters to the UK. It is the only route in the Treaty that is expected to be visa-free, so you can just hop on a plane and go, without first being required to obtain a visa. If you want to compete with EU citizens supplying services in each other’s countries, you need to be able to take a fee from a customer, as EU citizens can do (e.g. a French accountant supplying services in Germany, or a self-employed Italian journalist with a writing commission in Spain).  The UK is a less attractive place to supply services for a fee if there is no visa-free route to do so quickly.

In addition, only certain activities are permitted as short-term business visitors. UK nationals and EU citizens can only travel to do a limited range of things (meetings, marketing, etc.). Thus, for example, a lawyer cannot travel to provide legal advice. It is not within scope.

In the Schengen Area (note, not all EU states participate) the Schengen business visitor rules do not contemplate a fee being taken from a customer in a host state by a business visitor. So, the matter falls to each EU state to administer its own visa and work permit arrangements for third country nationals (as UK nationals are now classified) who seek to provide services for a fee to EU customers. The same applies to EU citizens who seek to do the same in the UK. UK rules will apply. Local rules may be more generous. But often they are not. Under current local rules, the Home Office only allows business visitor entry for 1 month where a business visitor seeks to take a fee from a UK client. And even then, it only does so only in a highly restricted range of activities. That period is too short and the list of permitted activities too narrow.

Finally, the Treaty, limits short-term business visitor migration to 90 days in any 6-month period. Home Office rules currently allow 6 months in every 12 months, so there is no gain for those coming to the UK. Further, 90 days in any 6-month period (actually 180 days) is the default limit under Schengen visitor rules, so UK nationals gain little there when seeking to travel to EU states.

In the result, as regards business visitors, while there is some particularity as to what activities are permitted, the list is still narrowly focused, no fees can be taken from a customer, and the permitted period for a business visitor appears to add little or nothing.

As regards the Treaty provision for Independent Professionals (self-employed professionals) and Contractual Service Suppliers (those travelling as employees of a legal entity supplying services), who move on a short-term basis, there are also problems.

The Treaty does not prevent a state imposing a visa-requirement or indeed a requirement for a sponsor in the host state. Indeed, it permits it.  Thus, the Home Office is able to demand both a visa (called an ‘entry clearance’) and a UK sponsor under its T5 provisions in the UK Immigration Rules. This makes the UK less attractive as a destination for European service providers than an EU state where free movement applies. Despite no risk to UK immigration control or the UK labour market, the Home Office has said it does not plan to make these routes visa-free or sponsor free, though it could easily do this if it so chose.

Further, getting a visa and sponsorship is costly, causes delay, and the work may go elsewhere in the meantime. Remember, these are the only routes to take a fee from a client in the host state when seeking to provide short-term services.

In addition, only certain activities are allowed under these routes. For example, as regards lawyers, only legal advisory services and not advocacy is permitted. And even then, only in the areas of public international law and home jurisdiction law. If you want to appear as an advocate, whether in a public court or tribunal or in an arbitration, this is not a route for you. Whether or not your qualification is recognised, there is not a mobility route for advocacy.

Each EU state will be able to set its own visa/work permit rules for activities that fall outside the permitted scope of these provisions. UK nationals who seek to supply such services will need to comply with different local rules in each of the 27 EU states.

Further, under the Treaty each entry will be for a maximum of 12 months or for the contract’s duration, whichever is less. Thus, these are not routes for professional people who make a success of their businesses, get repeat work, and seek to become established in the host state.

Conclusion

Whatever view one takes of the political choice to leave the EU, the UK has sold itself short in the new arrangements. There has been inadequate design of the mobility and migration routes that the UK needs as a modern service-oriented economy, a poverty of ambition and a failure of imagination as to what might have been achieved, a failure to take account of the need to entrench a system that enables the UK to keep pace with EU states and their own regional mobility arrangements, and a simplistic and pointless dependence on precedents in treaties that  the EU has already agreed with countries on the other side of the globe. In the result, the UK national interest has been poorly served. It should have been so much better.