The Implications of Brexit on Immigration Law

In light of Britain potentially leaving the European Union (“Brexit”), immigration law has become a highly contentious topic for both sides of the debate.

The aim to reduce migration into the UK to tens of thousands per annum has long been on the Government’s agenda and yet, according to the Office for National Statistics, net migration into the UK rose to 330,000 last year. EU and European Economic Area (‘EEA’) migrants contributed to over half of this figure (183,000), and are largely responsible for the continuing rise. This is principally because of the fundamental right of freedom of movement of workers within the EU/EEA, with many citizens of central and eastern European countries taking advantage of the right since their countries joined the EU. The EEA covers the 28 EU member states and Iceland, Liechtenstein and Norway. These statistics explain why immigration law has become a central topic in the Brexit debate.

If the UK did leave the EU, it may negotiate a deal to preserve access to the EU single market, involving the maintenance of freedom of movement of workers within the UK and the EU. However, it is also possible that EU/EEA migrants would have to apply for leave to enter the UK using the points-based system, in the same was as non-EU/EEA migrants currently do. There is therefore uncertainty about what effect Brexit would have upon UK immigration law, as we do not yet know what kind of relationship would replace EU membership.

The UK leaves the EU – but remains a member of the EEA

The freedom of movement of workers is widely regarded as one of the cornerstones of the EU, and it has become of major economic and social significance for all of its member states, including the UK. Therefore, many who are pro-Brexit argue that it is likely that any deal between the UK and the EU would have to include some form of safeguard for this essential right.

One of the most obvious ways to do so would be for the UK to become a member of the EEA. Free movement of workers applies to EEA members on a similar basis to EU members. Consequently, there would be little or no change in immigration law in this scenario. However, for many, this would not solve the ‘problem’ of rising net migration and may generate lengthy debates about whether the UK could limit migration as part of its EEA membership terms.

The UK leaves the EU – and does not join the EEA

If the UK was no longer part of the EEA’s freedom of movement area, the Government would technically have free reign on immigration, which would allow it to radically change the policy. Many pro-Brexit campaigners argue that there would be no justification for offering completely unfettered access to the UK labour market for low-skilled workers within the EEA, while imposing tight restrictions on highly skilled workers with a job offer from India or Indonesia, for example.

A study from MigrationWatch suggests that an EU exit could cut net migration by 100,000 a year. This is because, they argue, the Government can introduce a more effective regime. In theory, it is possible to ban (or at least severely limit) low-skilled migrants coming to the UK, by setting new skills and qualification requirements for EEA migrants in order to gain a work visa. Some commentators suggest that this would harm economic growth in the UK in the short term, because of a shortage of essential lower-skilled workers. Others argue that UK companies will invest more in recruiting and training UK workers, which they argue would significantly develop the UK economy in the long-term.

Summary

UK immigration law could change dramatically following a Brexit, but equally we could see hardly any change at all. The uncertainty may result in some unintended consequences, as many UK employers have become accustomed to the flexible supply of EU workers in low-wage jobs. The potential removal of this source of supply could increase pressure for illegal migration. Additionally, in the short term, we could see a sharp increase in EEA migrants entering the UK in anticipation of Brexit.

UK citizens currently living and working in other EU countries and EU citizens currently living and working in the UK may also be concerned. However, their existing rights to live and work abroad should be preserved under the Vienna Convention on the Law of Treaties 1969.

If we do see a vote in favour of leaving the EU, what is certain is that it will be a lengthy process. The UK is required to give two years’ notice of an intention to leave, which means that any changes will not occur overnight. Many commentators suggest that it will take 10 years or more for the UK to negotiate new trade deals with EU member states and others. Immigration law and policy will need to be shaped and adapted to those new agreements, as increased restrictions on the freedom of movement of EEA workers within the UK could limit the scope of new trade agreements.