An Emergency Brake Is A Dangerous Mirage


Employment, European Union, Migration Trends

In an article for the Financial Times, former leader of the Liberal Democrats Nick Clegg argues that the UK should seek a Norway-style ‘emergency brake’ on EU migration post-Brexit.

He adds that if the UK implemented this measure as part of the European Economic Area (EEA) whilst remaining in the Single Market, it would be sufficient to address the public concerns about high levels of EU immigration that helped lead to the referendum result of June 2016.

This argument is disingenuous. Two claims deserve to be refuted in particular.

Firstly, he suggests that the leaders of the Conservative and Labour Party leadership are ‘wilfully misrepresenting’ rules on freedom of movement in a bid to convince the public that the only way to control immigration after Brexit is by departing the Single Market. He claims that, on the contrary, ‘there is far more latitude for member states to apply restrictions to freedom of movement than is commonly appreciated’.

As evidence, Mr Clegg notes that the Belgian authorities aggressively deport EU citizens who do not work and support themselves. Under EU law, Mr Clegg writes, ‘the UK authorities could do the same for EU citizens who have failed to find work after six months’. In saying this, Mr Clegg seems wholly unaware of the concerns of ordinary people about the impact of mass migration and tries to set up again an ‘unemployed benefit scrounger’ straw man. There might be a few hundred unemployed people in the UK who, if they were in Belgium, the Belgian authorities would deport, but nothing can be done about the hundreds of thousands of people in low-paid work in the UK that EU law has required the UK to admit freely, many of whom are not actually supporting themselves. For example nearly 20% of in-work housing benefit is paid to EEA-national led claims.

In another example, he notes that the Spanish authorities require those accessing healthcare to register with the social security authorities and show residence and identity documents. But the ability to ask for proof of entitlement to healthcare provides no more control over free movement than the ability to ask for a passport at the UK border. If an EU passport is shown, then entry must be allowed.

Under free movement rules (which are a condition of being in the Single Market), EU citizens are granted leave to enter the UK unless the government is satisfied that the particular individual poses a genuine and serious threat to one of the fundamental interests of society.

The reality is that any EU national coming to the UK has the automatic right to reside for three months, regardless of their purpose in coming to the UK and unless that person poses a clear risk to society, there are no grounds for their entry to be denied. If they get work in the UK then they can stay here together with any family members for as long as they like. That is why there are over 3 million people from the EU in the UK, with most of these arriving only since the opening of our borders to Eastern Europe in 2004. The rapidity of growth and change is shown by the fact that there are now more people from Poland in the UK than from any other country.

It is true that if EU citizens have not found work in six months or have been out of work for that time after only a short period of work, they are, in theory, supposed to leave. However, as a blog by EU law expert Steve Peers makes clear, the circumstances in which such removal can be carried out are extremely limited. This is also true with respect to rules governing the prospective removal of EU migrants who become an ‘unreasonable burden’ on the public purse. The person must pose a very serious threat to public health or to the public good. The criteria for removal are stringent and difficult to enforce.

Thus, free movement rules as they currently stand (as stipulated in a number of EU treaties[1], directives[2] and court decisions[3]) mean that the UK government has no real means of controlling the entry of EU citizens who come to the UK to live, work or study. As a result the estimated level of net migration from the EU to the UK in 2016 was 133,000, the third highest recorded level in a calendar year ever and equivalent to a city the size of Exeter.

As in Spain, there are rules in place in the UK which govern EU citizens’ rights to access benefits and public services. But for people in work and their dependants, these cannot be used as an effective way of providing indirect control on free movement. For example, in February 2016 when then-Prime Minister David Cameron sought to renegotiate the UK’s terms of EU membership to include a possible ‘emergency brake’ on in-work benefits for new arrivals, although we noted that these proposals would have an impact on only a small number of people and a limited effect on reducing EU migration, the EU would not even allow these and watered them down to insignificance.

So in the real world, there would be no means for a UK government to limit the number of EU nationals who come to the UK and work.

Mr Clegg also suggests that the UK government’s failure to impose transitional controls on immigration from eight Eastern European countries that joined the EU in 2004 (the so-called EU8) was more responsible for the subsequent high inflows than were free movement rules generally. It is true that the lack of transitional controls probably led EU8 migration to rise much faster might have been the case if they had been in place. Net migration from the EU8 states nearly doubled, from just under 50,000 in 2004 to nearly 90,000 by 2007. Certainly, the public were not consulted over whether transitional controls should be imposed. Although he stated on the BBC Radio 4 PM programme in April 2016 that he had ‘no regrets’ about the decision, Lord Blunkett, who was the Home Secretary at the time, admitted that there was a failure at the time ‘to put in place the mechanisms to absorb and to support those people coming in and to support the communities who were hosting them’.

Finally, Mr Clegg suggests that that if the UK agreed to a post-Brexit ‘emergency brake’ as part of the European Economic Area along the lines of Norway, this would represent an ‘important change to freedom of movement’ and mean that the UK could essentially control EU migration. This is false. A Norway-style emergency brake on EU migration would neither give the UK sovereign control of its borders nor allow the government to reduce EU immigration in the way the public wants. Provisions for the ‘emergency brake’ are contained in the ‘safeguard mechanisms’ of the European Economic Area Agreement (Articles 112 and 113). The grounds for putting limits on migration via this device are diffuse and ambiguous (‘If serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist are arising’). Norway’s brake is not entirely in Norwegian hands since it must notify the EEA Joint Committee without delay if it wishes to enact it and then enter into consultations upon its activation which is then to be reviewed every three months. More tellingly, the Norwegians have never used their ‘brake’, reportedly because they believe it might lead to a retaliatory response from the EU.

Finally, as noted constitutional expert Professor Vernon Bogdanor wrote in a letter to The Times in November last year, if the UK were to become a post-Brexit member of the EEA in the manner Mr Clegg proposes, she would be required to acquiesce to rules which she had hardly any ability to shape, since they would be devised by EU bodies of which she was no longer a member. For example, once a new proposal on free movement had been sent to the Council of Ministers or the European Parliament, there would be little chance of influencing it. In Professor Bogdanor’s words, this would mean the UK being subject to ‘regulation without representation’.

This may explain why, during the referendum campaign, a senior Conservative, warned his colleagues “very strongly” against the idea of EEA membership: “Norway pays as much per head into the EU as we do.  When it comes to migration, they actually have many more people coming to live and work in Norway than we do. And yet while they pay, they don’t get a say. They don’t have a seat around the table, they don’t have a chance to influence the debate and get things done in Europe in the way that we do, so it’s not a good option for Britain.” … Who was this Norway-sceptic? None other than David Cameron.

The public made clear at the referendum that they want to both end the jurisdiction of the EU courts in the UK and to restore immigration control. They reinforced this mandate at the recent General Election by giving more than 80% of their votes to parties that had pledged to end the free movement of people.

As one who fiercely claims to be democrat, Mr Clegg should now stop trying to confuse the issue and get behind the efforts of the government and official opposition to implement the outcome of the democratic process.

[1] E.g. TFEU, art. 20(2)(a), which states: ‘Citizens of the Union shall enjoy… the right to move and reside freely within the territory of the Member States’

[2] Directive 2004/38/EC, art. 5(1).

[3] E.g. Bonsignore v Oberstadtdirektor der Stadt Köln [1975] ECR 297, para [6]; Kempf v Staatssecretaris van Justitie [1986] ECR 1741, para [12].

7th July 2017

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