It has been over a year since the Brexit referendum, yet there remains no guarantee that the rights of EU nationals living in the UK and British citizens living in EU countries will be adequately protected. This is despite a shared rhetorical commitment from those on both sides of the Brexit negotiations to reach an urgent agreement, and consistent advice from across civil society to ringfence rights from the negotiations.
In March 2017, LCHR published a briefing on the rights of EU nationals in which we argued that “to put those people through the emotional turmoil of an uncertain future as a negotiating strategy, and to potentially cede control of the situation to other governments as a result, is indefensible as a course of action.” In the subsequent months, both the UK government and the EU negotiating team have given a clearer indication of their positions. Yet there remains a sizeable gap between the two stances, and a solution remains to be found as the rights of millions appear to be stuck within the trade-offs of the negotiations.
This briefing paper considers how Labour can fight for a deal that will safeguard the rights of EU and UK nationals, whilst balancing the demands of the referendum with the lessons learnt from the recent general election.
This briefing considers the effect of Brexit on the UK’s employment and equality protections. It analyses which rights may be most under threat, as well as how they could be amended or repealed without appropriate parliamentary scrutiny by using so-called Henry VIII powers. In addition, some of the key judgements made by the European Court of Justice (ECJ) which have advanced protections are considered, while also investigating the future role for the Court given the Prime Minister’s insistence that any jurisdiction post-Brexit would be a red line for her, except during a transition period.
The Labour Campaign for Human Rights is pleased to publish our third Brexit and Human Rights Briefing: Free Movement and Human Rights.
The briefing offers an honest analysis of the system’s impact on human rights in order to aid our understanding of its alignment with progressive values and how it could fit into Labour’s approach to Brexit. This briefing situates free movement alongside Britain's considerably less human rights compliant immigration system for those outside the EU, and argues that a priority for Labour must be to 'level up' rights for non-EU migrants. We also consider how Labour can listen to and recognise the concerns of voters regarding free movement, whilst also combating attempts to scapegoat migrants by redirecting the legitimate anger felt at economic insecurity towards their true sources.
It is becoming increasingly clear that, under the present government, free movement in its current form will end after Britain leaves the European Union.1 Theresa May outlined the government’s stance in her Lancaster House Speech last year:
“the message from the public before and during the referendum campaign was clear: Brexit must mean control of the number of people who come to Britain from Europe. And that is what we will deliver.”
Yet amid the many suggested alternatives to free movement, there have been numerous proposals that offer variations on the existing system. These include free movement with a job offer, free movement with an emergency break, and free movement limited by regional or sectoral quotas.
This briefing does not seek to advocate for any of these alternatives, but instead attempts to provide an objective human rights analysis of each proposal. The final section of this briefing considers the recurring human rights risks posed by these three alternatives to free movement, and makes some recommendations for Labour’s priorities for a humane, progressive post-Brexit immigration system.
With just under one year to go until the UK’s scheduled withdrawal from the EU on 29 March 2019, the UK Government has a lot of work left to do. Despite a series of announcements and a draft agreement on the rights of EU nationals currently in the UK, we are still in the dark as to the immigration system that will be implemented for EU nationals arriving in the UK post-Brexit.
The most up-to-date indication of the Government’s intentions can be found in a draft Home Office paper, leaked in September 2017. This leaked paper commits to ending freedom of movement and explores alternative immigration systems for EU nationals.
LCHR has previously explored the pros and cons of freedom of movement. We noted that whilst it is desirable in terms of facilitating economic and cultural exchange between member states, it is not without its pitfalls. In particular, it discriminates based on nationality between EU nationals who benefit from freedom of movement and non-EU nationals who are subject to the stringent requirements of domestic UK immigration law and policy.
The design and implementation of the new immigration system for EU nationals can be used as an opportunity to address some of the key failings with the existing immigration system for non-EU nationals.
After Britain leaves the European Union, it will be free to determine its own trade policy and strike its own trade deals. With respect to human rights, this presents risks as well as opportunities. There is a significant danger that pressure to strike quick trade deals to boost prosperity, coupled with Britain’s reduced bargaining power, will result in a race to the bottom when it comes to aligning domestic regulatory standards with those of third countries. There’s also a danger that mechanisms designed to raise human rights standards abroad will be omitted from such deals.
However, there are also opportunities. The human rights mechanisms integrated into the EU’s current trade policy have been criticised as inadequate and ineffective. With Britain taking control over its own policy, we have the chance to adopt a more effective approach of
our own. There is also an important opportunity to weave duty of care into trade policy, making sure UK companies take responsibility for what happens in their supply chains.
This briefing will explore these issues in more detail.
The defining message of the Vote Leave campaign was that “leaving the EU … will save our sovereignty.” Before and after the referendum, leading Brexiteers within the government have embedded their arguments of global trade and reduced immigration within the noble principle that parliament, and by extension the British people it represents, remain sovereignty.
Yet this week saw yet another clear demonstration of the government curtailing parliamentary oversight of its’ disastrous Brexit strategy. After weeks of delaying tactics in which the government refused to comply with cross-party calls that it release a series of confidential studies on the economic impact of Brexit, Brexit Secretary David Davis risks becoming the first politician in centuries to be held in contempt of parliament after finally distributing incomplete and heavily edited reports.
The government withheld any information they considered ‘sensitive’, despite a binding, unanimous vote by MPs for complete access of the documents as well as reassurances by the Brexit select committee that any sensitive information would be treated appropriately. David Davis’ extreme self-editing meant that MPs received around twenty reports fewer than expected, with Keir Starmer expressing his shock at the paucity of information that the government deemed fit to share.
The fact that MPs had to utilise every parliamentary trick available just to secure the release of the modified information, including a ‘humble address’ that directly called upon The Queen to force Mr Davis to release the impact assessments, demonstrates the government’s desire to keep parliament at arms-length whilst key decisions are made by Theresa May’s core team. To then release such a watered-down version of what parliament requested was too much even for fierce Brexiteer Jacob Rees-Mogg, who said the government was “in serious constitutional waters if it doesn’t provide the full information … if you try to trample the rights of Commons in government … you have no means of curtailing abuses of power.”
Yet this remarkably disrespectful approach should not be surprising, as secrecy and concentration of executive power has defined this government’s approach to Brexit. The government’s ‘Great Repeal Bill’ has been widely criticised for granting extraordinarily sweeping and unchecked powers to ministers as they incorporate EU directives into British law. Meanwhile, Andrea Leadsom has also passed a motion to swing influential public bill committees in the government’s favour.
The dispute over the Brexit documents is simply the latest demonstration that, despite its empty rhetorical commitment to the sanctity of parliamentary sovereignty, this government would rather circumvent our parliamentary checks and balances. Labour must continue to oppose the government’s efforts to deliver the hard, centrally-managed Brexit that the electorate resoundingly rejected in June.
Joe Duffy is LCHR's Campaign Intern
Just when it seemed that the government’s chaotic Brexit negotiations had damaged negotiations beyond repair, Theresa May managed to scramble together a compromise on citizens’ rights, the financial settlement and the Irish border that enables talks to progress onto the next stage.
Yet despite the government’s subsequent victory lap, it is worth remembering that this deal was struck months later than scheduled, and contains simply the bare minimum that EU negotiators consider as constituting “adequate progress.” As European President Donald Tusk pointed out, the delayed nature of this deal means that it will be a “furious race against time” to complete the negotiations before March 2019. Most of the substantive and complex issues regarding our future relationship with the EU, including a sustainable solution for the Irish border, have simply been kicked into the not-so-long grass.
On the issue of citizens’ rights, the government must surely be wondering if months of intransigence and bluster that resulted in the needlessly protracted anxiety and uncertainty for millions was really worth it, especially as its last minute agreement largely caved to demands made previously by the EU. It is true that the deal was considerably better than the government had previously indicated, with EU citizens in the UK having the right to stay and maintain many of the rights they currently enjoy. Theresa May also bent one of her supposed ‘red lines’ by allowing the European Court of Justice to remain the final arbiter of EU citizens’ rights for 8 years after withdrawal.
Despite the deal’s positive elements, there has been much opposition to the provision that every EU citizen will have to apply for ‘settled status’ if they are to legally remain in the UK. As pointed out by one immigration expert, it is inevitable that many EU citizens currently in the UK will fail to complete the application in time, due to lack of awareness, education or simple organisation. There are also serious doubts over the Home Office’s capacity to deal with such an influx of applications, as the department currently rejects 29% of applications and recently distributed hundreds of erroneous deportation letters. Settled status therefore risks precipitating a significant spike in undocumented and illegal migrants, who will then have to navigate the ‘hostile environment’ intentionally created by a government obsessed with reducing net migration.
One area in which the deal exceeded expectations is by making most family members of EU citizens eligible for settled status. However, EU citizens who begin a relationship with a foreign national after Brexit day will be subject to the same punitive spousal income requirements which make Britain the worst developed nation for family reunification. As Professor Steve Peers argues, this misses a vital opportunity to ‘level up’ the rights that enable us to live with our loved ones, as the current deal simply means that “migrants will be treated equally badly to nationals.”
Citizens’ rights groups have also been quick to criticise the agreement’s repercussions for UK citizens living in the EU. In July, Theresa May inexplicably rejected an offer made by the EU to guarantee the continuation of rights for Britons in the EU to move freely between member states for work, holidays or retirement. Jane Golding, Chair of British in Europe, lamented the fact that the current agreement fails to provide such a guarantee, with another campaigner describing how British citizens living abroad are “more fearful than ever of being thrown under the Brexit bus.”
It is therefore clear that, despite its generally positive reception, the minutiae of this deal have left many substantial issues unresolved. It is up to Labour to keep the pressure on the government to ensure that the rights of everyone living in Britain are safeguarded as we leave the EU.
Joe Duffy is LCHR's Campaign Intern
Beyond the transition period: working towards a post-Brexit immigration system that serves Britain’s long-term interests.
Recent reports that the cabinet had united behind a transitionary period for freedom of movement seemed like a rare flicker of certainty amongst the government’s chaotic Brexit negotiations. Amid fears that decades of precedent could instantly disappear over a ‘cliff-edge’, few would disagree that a transitionary period could be helpful.
Yet this was all extinguished when Immigration Minister Brandon Lewis confirmed that free movement of labour will end the second that we leave the EU in the spring of 2019. Lewis also reiterated the government’s farcical aim to reduce immigration to the ‘tens of thousands’.
Perhaps the most difficult balancing act that Brexit has demanded of politicians is that of creating an immigration system which protects human rights and serves Britain’s long-term interests whilst fulfilling the mandate for ‘taking back control’ of UK borders and sovereignty. The government’s U-turn on freedom of movement demonstrates the power of the Tory right to call the shots and push us down a path that will cause irreversible damage to the cohesion of our communities and our standing on the global stage.
The invaluable contribution that immigrants make to our country cannot be doubted. Freedom of movement enabled European immigrants to contribute over £20bn to the economy in a single decade, plugging our skill gaps with human capital that would have cost the UK £6.8bn in education.
Businesses up and down the country have highlighted the necessity of a flexible immigration system which does not encumber necessary overseas recruitment with excessive fees, with Sadiq Khan expressing concerns that the uncertainty regarding freedom of movement has been hampering business recruitment.
Yet the government’s track record on immigration policy, coupled with the post-election increase in the authority of backbench Brexit hardliners, raises the likely and worrying scenario that the government will prioritise arbitrary reductions in net migration over a system which harnesses its benefits.
Theresa May’s immigration policies for those living outside the European Economic Area have been notoriously harsh and rigid, leading two of Britain’s largest non-EU trading partners to suggest that entry rules must be relaxed if Britain expects to agree a trade deal. Now that EU citizens are also likely to be subject to UK immigration law, it seems likely that her government’s instinct to deter migration at any cost will undo hard-fought rights and damage our economy for generations to come.
In order to respect the referendum outcome, Labour has declared that continuing freedom of movement in its current form is not an option. But to square the circle of controlling migration whilst ensuring prosperity and protecting human rights, Labour must push for a system that enables the flexibility required to benefit all areas of our economy and regions of our country.
If Labour advocates for a system that closely resembles freedom of movement, such as welcoming all those with a job offer or installing the option for a temporary brake in immigration, it is crucial that the system is safeguarded against worker exploitation – an issue which the party leadership already appears to be aware. Labour has also recognised the need for flexibility by focusing on a “bespoke”, “jobs first” deal, enabled by a “tailored mix” of approaches including employer sponsorships, work permits and visa regulations.
In contrast, the Tory’s policy of attracting only the ‘brightest and the best’ lacks the nuance that our industries require, and their track record on immigration raises doubts that essential rights will be adequately defended. Labour must use every ounce of its newfound parliamentary strength to ensure that we are planning for a post-Brexit system that looks beyond the transitionary period and prioritises jobs and protections equally and indefinitely.
This article was initially published for our dedicated Brexit and Human Rights Campaign
After months of Brexit negotiations defined by incremental progress and deteriorating relationships, the high levels of panic can be judged by the fact that Theresa May’s repeated insistence that ‘no deal is better than a bad deal’ is increasingly being discussed as a viable option. The government is characteristically split on this issue, with chief Brexit negotiator David Davis seeing it as a key negotiating lever. Yet Home Secretary Amber Rudd labelled such a scenario “unthinkable”, whilst Chancellor Phillip Hammond has earnt the ire of the Daily Mail for his apparent lack of confidence in post-Brexit Britain.
The danger is that this disarray will turn into a self-fulfilling prophecy, as the government’s inability to move negotiations forward is eating into the precious and limited time available to reach the best possible agreement. Jens Geier, the German Vice Chair of the European Parliament’s budget committee, recently described how the government’s disarray is preventing any ‘sustainable progress’, and argued that a no deal scenario is in fact preferable to a bad deal – for the EU. As the Brexit cliff edge is now emerging as an unwelcome speck on the horizon, it is important to consider what it would mean for our human rights if we plunged down it.
The prospect of no deal has added another unwelcome notch of strain to the worries of those whose citizens’ rights remain unclear. Following her government’s year-long refusal to guarantee the exact continuation of the existing rights of the 3 million EU citizens living in the UK, the Prime Minister confirmed that some of their rights “would fall away if there was no deal.” These include the right to move around the EU to work and the right to settle with family members who are based abroad. Amber Rudd sought to clarify the government’s stance by stating that the Home Office’s ‘default position’ will be to accept residency applications. But this is not the same as a guarantee of rights, and as Shadow Home Secretary Dianne Abbott rightly asked in a recent intervention on behalf of EU citizens, “who in the cabinet can be trusted to uphold these rights in the absence of a deal?”
This eventuality would also destroy any hope for a beneficial reciprocal deal for the 1.2 million UK citizens living in EU countries, who would be left stranded under the varying jurisdictions of their respective host countries. As the existing EU directive for third party nationals confers comparatively few rights, especially for those without five years residence, a no deal scenario would likely scythe through the current freedoms of Britons living across Europe.
Whilst much of our ability to preserve our European-derived employment and equality protections will hinge on the passage of ‘The Great Repeal Bill’ a no deal scenario would strengthen the hand of those seeking to undo crucial rights. In the event of an acrimonious and incomplete settlement, it is extremely likely that anti-European sentiment would increase in political currency. A recent study by The UK in a Changing Europe warned of “a bitter and divisive period” in the event of a no deal, which could provide fertile ground for those hoping that Brexit ignites a race to the bottom amid the ‘legal chaos’ as all pre-existing legal arrangements simultaneously evaporate.
It is also likely that a no-deal political climate would lead to the extension of the most regressive aspects of our non-EU immigration system, particularly the spousal income requirement, which prevents thousands from exercising their right to a family life. A no deal scenario would also reduce the onus upon UK courts to keep up to date with European rulings, which would raise the undesirable prospect of the UK lagging behind human rights progress made on the continent.
Much of the focus on a Brexit ‘cliff edge’ has rightly concentrated on the economic ramifications, with a recent Resolution Foundation study finding that low and mid income families would be hit the hardest. Yet a situation in which Britain crashes out of the EU and embraces the guidelines of the World Trade Organisation would raise significant human rights concerns. An increased reliance on partners such as Saudi Arabia will run the risk of undermining human rights and labour standards, and will make it considerably harder to implement a rights-based foreign policy.
Labour has been unequivocal in its condemnation of this Tory delusion, with Dianne Abbott’s welcome intervention one of many. Labour’s victory in delaying the vote on the Great Repeal Bill shows how strong a voice it can be in favour of a sensible Brexit. Labour will need to shout as often and as loudly as possible if we are to avoid the near-dystopian vision of a no deal Brexit.
Joe Duffy is the Campaign Volunteer with the Labour Campaign for Human Rights
This article was first published as part of our Brexit and Human Rights Campaign.