Immigration Implications Of Brexit Trade Models


European Union, Policy

The Prime Minister’s Withdrawal Deal

If the UK leaves the European Union with the Prime Minister’s withdrawal deal, free movement for EU workers will come to an end after a transition period. Nearly four million EU citizens who are already here, as well as those who arrive in the UK prior to the end of the transition period, will be able to apply to settle here permanently and will retain a number of other rights, including the ability to bring in future children and close family members. However, the current version of the political declaration sets out sets out a spectrum of possibilities for the future trade relationship. As Open Europe notes: “Where the final agreement falls on this scale will depend broadly on how far the UK is willing to align with EU rules, and, correspondingly, how much it would accept in terms of level playing field obligations and an indirect role for the European Court of Justice.”

Possible future trade models

Options b) and c) below would allow the end of free movement going forward after Brexit. Option a) – The Norway option (EEA membership) – and something akin to d) – the Swiss experience – would not allow the end of free movement.

a) European Economic Area membership (so-called ‘Norway option’)

EEA membership would mean being part of the Single Market and accepting a freedom of movement. The only control would be a ‘safeguard mechanism’ that, in theory, could be triggered if ‘serious economic, societal, or environmental difficulties of a sectorial or regional nature liable to persist are arising’. However, Norway and Iceland have not sought to use this ‘brake’ (reportedly due to fear of EU retaliation). Such a “brake” would not be sufficient for the UK as it is only intended to be temporary and would be subject to EU acceptance that any measures were proportionate (see our papers: ‘Emergency Brake’ on EU Migration?’;‘Norway-option’).

b) Canada-style Free Trade Agreement

No free trade agreement concluded by the EU has provisions for the free movement of people. Workers may only enter for purposes directly connected with the supply of the goods and services laid down in the agreement itself. For example, the Commission’s guidance stipulates that the accord will make it easier for both Canadian and EU firms to move staff temporarily, and for professionals to supply legal, accounting, architectural or similar services in both jurisdictions. However, these provisions do not allow entry for residence or for permanent employment. The EU’s 2011 agreement with South Korea and its 2017 agreement with Japan also have limited provisions such as these. For more detail, please read our March 2018 paper, ‘The role of immigration in a UK/EU Free Trade Agreement’).

c) Customs Union (Turkey)

This option would mean the UK regaining control over immigration after Brexit as there has never been any question of the EU making free movement a condition for a Customs Union. However, the EU would likely make demands for liberal bilateral migration arrangements to be included in the course of the negotiations.

d) The Swiss Experience

Switzerland is neither a member of the EU nor the EEA. However, it has signed a series of agreements with the EU, including on the free movement of persons. Free movement has been introduced on a phased basis with each enlargement. Originally, there was also a quota on the number of EU nationals who could come but this was only valid for five years and it has since expired. The Swiss people voted in a 2014 referendum to reintroduce these quotas. However, following retaliatory threats from the EU, Switzerland has instead merely been able to allow employers to prioritise Swiss workers in regions or sectors where unemployment is particularly high.

The Government’s Immigration White Paper

In anticipation of the end of free movement after Brexit (which would be allowed under options b and c above), the government published proposals for a new post-Brexit immigration system in December 2018. The government would grant work permits for skilled workers (whether or not they are EU citizens) who earn more than £30,000, or perhaps below this level (to be decided). Migrants from “low risk” countries (including the EU and a number of largely Anglophone countries) may be allowed to enter for “up to a year” before returning home for a “cooling off period”. Thereafter they will be permitted to return to the UK for work for an unspecified period. This mechanism would take them out of the official long-term migration statistics. It is not at all clear how such a regime could be enforced. The White Paper also proposes the expansion of the current two-year Youth Mobility Scheme and a widening of the current range of “GATS Mode 4” commitments which the UK has taken as part of EU trade deals. These may cover independent professionals, contractual service suppliers, intra company transfers and business visitors. The future framework declaration also commits the government to discussing with the EU provisions relating to mobility which may include ‘commitments in respect of the provision of services through the temporary entry and stay of natural persons (e.g. lawyers)’.

21st February 2019

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