Brexit negotiations and immigration

Signalling a sea change in EU-UK relations, prime minster Theresa May recently delivered a much-anticipated speech on UK Brexit negotiation objectives. The 12-point plan, though aspirational, was light on detail, instead often relying on generalities and assumptions. And while this lack of specifics could in part be excused by the fact that negotiations have not yet formally begun, the speech seemed at times overly optimistic, if not unrealistic.

The PM’s plan included the following 12 points:

• Certainty: in order to provide public and private sectors with a sense of security, the UK intends to repeal the European Communities Act while simultaneously converting the existing body of EU legislation into British law. This, it is hoped, will provide continuity and allow parliament to later debate and change laws where necessary. Additionally, parliament will vote on the final EU/UK deal prior to any measures taking force.

• Control of laws: by leaving the EU, the UK intends to control its laws and remove itself from the jurisdiction of the European Court of Justice.

• Strengthen the union: the government set up a joint ministerial committee on EU Negotiations to include devolved administrations in the Brexit process. The PM also stressed the importance of maintaining common standards and frameworks within the UK’s domestic market.

• Maintain the Common Travel Area with Ireland: the UK intends to preserve the Common Travel Area (CTA) with the Republic of Ireland ‘while protecting the United Kingdom’s immigration system’. May stated that the government sought a practical solution that would not involve returning to the borders of the past.

• Immigration control: May was clear that the UK would abandon the principle of free movement of people. Although acknowledging the benefits of controlled migration, the PM noted that when immigrant numbers rose too high, public support waned.

• Rights for EU nationals in Britain, and British nationals in the EU: the PM hopes to quickly guarantee the rights of EU citizens living in the UK, as well as those of UK nationals residing in the EU. However, she noted resistance to this from a few member states.

• Workers’ rights protections: as noted above, the UK intends to convert existing EU legislation into British law, which will include protections for workers’ rights. Additionally, the PM conveyed her intention to build on these rights.

• Free trade with European markets: although the UK intends to completely withdraw from the single market, it hopes to establish ‘the freest possible trade in goods and services’ between the UK and the EU. This would mean that the UK would not longer make large annual contributions to the EU, though May did contemplate smaller payments for participation in certain, select programmes.

• New trade agreements with other countries: the UK would like to remove barriers to free trade and establish its own tariff schedules at the WTO to increase trade with growing global export markets. Since full EU Customs Union membership prevents the UK from negotiating independent trade deals, Great Britain will have to modify the relationship. The PM indicated that she would like to form a customs agreement with the EU creating tariff-free, cross-border trade, and stated that the government was open to considering various options, including associate membership, a new agreement, or becoming signatory to only certain portions.

• Welcoming science and innovation: the UK seeks to continue collaborating with EU partners on science, research and technology.

• Cooperation in the fight against crime and terrorism: the government seeks continued cooperation with the EU in crime and terrorism prevention, as well as foreign affairs. This includes sharing law enforcement and counter terrorism intelligence with the EU, and continuing to help secure Europe through foreign and defence policies.

• A smooth, orderly Brexit: while the UK does not want to unnecessarily prolong the process in an ‘unlimited transitional status’, May explained her desire to avoid making such a sharp break that it threatened stability. The PM stated her intent to complete negotiations by the end of the two-year article 50 period with a reasonably paced phased implementation of the agreement thereafter.

Immigration control

Without explicitly stating so, the government’s plan revolves around immigration and, more specifically, the control and reduction thereof. Indeed, the prime minister appears to view cutting immigration as some sort of salve to a grievous populist wound. The problem, however, is that this could result in throwing the baby out with the bath water. Put differently, were immigration not the nerve centre of her negotiations, many of the other points in her plan would not appear nearly as quixotic.

Indeed, setting immigration unyieldingly above all other issues casts uncertainty upon many of the governments objectives, including the status of EU citizens living in Great Britain and UK nationals living on the continent, as well as the security of nearly every business sector, the future of CTA, and the very cohesion of the UK.

The fact of the matter is that by abandoning the free movement of people the UK will have to, amongst other things, leave the single market. And while May acknowledged that the UK does not intend to remain in the single market, her goal appears to be near-unfettered access to it, but without the free movement of people or annual contributions to the union – something which EU leadership and member states have strongly opposed from the outset.

Anticipating potential resistance, the PM issued a thinly veiled threat, stating that those who would call for a punitive deal would be committing an ‘act of calamitous self-harm for the countries of Europe.’ She went on to warn that were Britain excluded from accessing the single market, it would be free to change its economic model (which some took to mean using tax breaks to create a ‘Singapore on Thames’). For the EU, she went on, this would mean barriers to trade, a risk to investments by EU companies in Britain, the loss of access for EU firms to financial services in London, and the disruption of exports and supply chains.

Alas, May’s myopic focus on reducing net migration numbers, something she began pursuing more than six years ago as home secretary under PM David Cameron, appears to be the crucible she has chosen. And by doing so, she risks bending the UK into a contortionist’s position for forthcoming Brexit negotiations.

Laura Devine is head of Laura Devine Solicitors