Steve Peers
Introduction
How does the UK’s membership in the European Union (EU) affect immigration and asylum? This piece examines this complex topic, focusing on migration to the UK by both non-EU and EU citizens.
Non-EU migration
It’s crucial to differentiate between non-EU and EU migration in the Brexit referendum discussion for two key reasons. Firstly, while EU migration is inherently linked to the UK’s EU membership, non-EU migration is not. This is because the UK has negotiated and exercised its right to opt out of EU laws concerning non-EU migration and asylum, specifically those related to the Schengen Area. Consequently, the UK retains control over its borders with other EU countries regarding non-EU citizens, enforcing its own laws for entry and refusal of entry. Therefore, claims that the UK has ’lost control of its borders’ concerning non-EU migration are inaccurate.
As highlighted in the initial EU Referendum Briefing, reversing these opt-outs would necessitate a Treaty amendment requiring approval from both the UK government and parliament. Moreover, revoking the Schengen opt-out would necessitate a public referendum.
Secondly, this distinction is critical because non-EU migration actually constitutes a larger proportion of net migration to the UK compared to EU migration, as demonstrated below:
Furthermore, it’s evident from this graph that those advocating for a reduction in net migration to the UK, for instance, to 50,000 or below 100,000, would not achieve this solely by leaving the EU. Even with zero EU migration, non-EU migration alone would still exceed 100,000. Conversely, some support increasing non-EU migrant admittance to the UK. The UK government has the autonomy to do so at any time. However, such a move would clearly hinder the UK’s progress towards a 100,000 migrant target, even post-Brexit.
A small number of non-EU citizens in the UK are subject to EU law. Primarily, non-EU family members of EU citizens are covered by EU free movement regulations. Nevertheless, the UK’s renegotiated agreement would enable significant limitations on their numbers by imposing stricter entry requirements.
Additionally, the UK opted into the ‘first phase’ of EU asylum law between 2003 and 2005. Notably, at that time, the UK held veto power over asylum law proposals and exercised it to ensure EU regulations wouldn’t alter UK law. Despite claims from the ‘Leave’ campaign that the EU court ‘controls Britain’s asylum system,’ the only British asylum cases the EU court has addressed concern the ‘Dublin’ system. This system allocates responsibility for asylum applications among EU nations.
This system empowers the UK to demand other member states accept asylum seekers who entered their territory before reaching the UK. If the UK exits the EU, it would no longer be bound by these Dublin regulations unless a treaty to that effect is signed with the EU. Such an agreement is unlikely as the EU has only established similar treaties with nations like Norway and Switzerland, specifically because they also joined the Schengen Area.
Let’s consider the practical implications. Some non-EU migrants who journey through the EU attempt, or may desire to, illegally enter the UK (for example, those in Calais and Dunkirk). However, how would Brexit impact this situation? The individuals in question wouldn’t suddenly abandon their desire to enter the UK, nor would their intended illegal entry become any more challenging. While it would remain against the law – as it is currently – Brexit wouldn’t physically distance the UK from the continent. Illegal entry attempts occur in non-EU countries like the USA, and refugees also seek refuge and reside in non-EU countries such as Turkey, Kenya, or Lebanon.
Some ‘Leave’ proponents suggest the UK is vulnerable to sexual assault by non-EU migrants on the continent. However, none of these individuals possess the right to enter the UK, and the UK can simply deny them entry at the border. Conversely, the Orlando shooter was a US citizen, eligible to enter the UK without a visa under the UK’s visa waiver program for US citizens.
Claims that non-EU migrants in the EU will obtain EU citizenship and subsequently migrate to the UK lack merit. As confirmed by analyses from Full Fact, BBC Reality Check, and Open Europe, attaining EU citizenship is highly challenging for non-EU citizens. It involves a lengthy waiting period, a clean criminal record, and fulfilling numerous other requirements. Without legal residency or a successful asylum application, they face deportation. In fact, almost 200,000 non-EU citizens are deported from the EU annually.
Lastly, let’s apply this analysis to a poster recently unveiled by some ‘Leave’ campaigners:
None of the individuals depicted possess the right to enter the UK and can be refused entry at the border. Brexit wouldn’t alter this; in fact, it might hinder efforts to remove those who do illegally enter and seek asylum. The possibility of them obtaining EU citizenship and migrating to the UK is slim.
Therefore, the poster is essentially irrelevant to the referendum. Instead of engaging in rational discourse, it leverages irrational fear.
EU migration
As previously stated, the movement of EU citizens is directly relevant to the referendum. Much of the discussion revolves around the economic implications of EU migration, including its effects on public services. This piece will leave that aspect to economists. However, several significant legal points regarding access to benefits and exclusion based on criminal activity require clarification. It is crucial to understand that while the free movement of EU citizens is relatively generous compared to standard immigration laws, it is not without limitations.
What are these limitations? Firstly, EU citizens must fulfill specific criteria to reside in the UK. The ‘Citizens’ Directive,’ the primary legislation governing the free movement of EU citizens, states that EU citizens and their families can initially relocate to another member state for three months. However, it explicitly denies them any social assistance benefits during this period. The UK has even revoked access to job-seekers’ allowance for EU job seekers within the first three months of their stay.
After three months, the Citizens’ Directive permits EU citizens and their families to remain subject to certain conditions: they must either be employed or self-employed, possess ‘sufficient resources’ and health insurance to avoid burdening the social assistance system, or be enrolled as students in a post-secondary institution with health insurance and a declaration that they will not rely on social assistance. The EU court has affirmed that there is no right to reside solely to receive social assistance without engaging in employment in the host nation. It has also recently upheld the UK government’s refusal to grant child benefit or child tax credit to those ineligible for residency.
Claims that ‘500 million people can move to the UK’ under EU free movement law are misleading. This would only hold true if 500 million jobs, university spots, or independently wealthy individuals existed—clearly not the case.
What about EU migrants seeking work in the UK? David Cameron’s assertion that they can be automatically deported after six months without finding employment is inaccurate. The Citizens’ Directive allows them to stay if they can demonstrate ongoing job searching and a genuine prospect of employment. However, as previously mentioned, they are ineligible for any UK benefits during this period and must meet self-sufficiency requirements to remain beyond the initial three months.
What happens if an EU migrant employed in the UK becomes unemployed? They might retain their status as a (former) worker, preserving access to social assistance benefits. However, limitations exist. If employed for less than one year in the UK, they would only retain ‘worker’ status for six months post-unemployment, after which the UK could terminate their benefit access, as confirmed by the CJEU.
Workers are entitled to equal treatment concerning benefits, including in-work top-up benefits, a significant component of the UK tax and benefit system. However, the agreement reached on renegotiating the UK’s EU membership stipulates that if the UK chooses to remain, current EU rules will be amended to allow a four-year ban on in-work benefits for workers from other EU member states.
This renegotiated deal also enables the UK to restrict child benefits paid to EU workers with children in other member states, aligning the benefit amount with the cost of living in the children’s country of residence.
Following five years of legal residency under the Citizens’ Directive, EU citizens and their families become eligible for permanent residence status, granting them unrestricted access to social benefits.
Regarding criminality, suggestions that the UK lacks the authority to deny entry or deport EU migrants based on criminal grounds are entirely false. The Citizens’ Directive permits expulsion, entry bans, or entry refusal for individuals deemed a threat to ‘public policy, public security, or public health.’ However, limitations apply. Restrictions must be proportionate, based solely on an individual’s conduct, and not on general preventive grounds. The individual’s conduct must present a genuine, current, and sufficiently serious threat to fundamental societal interests.
British authorities can review an individual’s criminal record after entry and issue entry bans proactively. While those already residing in the UK have greater protection against expulsion over time, there is no absolute ban on expulsion.
The claim that the EU court has blocked the removal of 50 EU criminals from the UK is inaccurate. Any such judgments originated from UK courts or the European Court of Human Rights.
To illustrate this point, let’s examine all the cases concerning EU citizenship addressed by the EU court in the past five years. Of the 53 cases, only five involve the expulsion or exit bans of EU citizens due to criminal activity, with only three concerning the UK.
In these five cases, the Court ruled that:
a) Time served in prison in the UK by an EU citizen’s family member doesn’t contribute towards obtaining permanent residence under EU law (Onuekwere case);
b) An EU citizen convicted of child cruelty could not factor in prison time towards the ten-year threshold offering additional protection against expulsion (G case);
c) The UK is not obligated to provide an EU citizen with information potentially compromising national security during expulsion proceedings (ZZ case);
d) Individuals convicted of drug trafficking can be subject to exit bans (Gaydorov case); and
e) Child abusers can be deported on ‘public security’ grounds even after residing in the UK for over ten years (I case).
Therefore, in every single relevant judgment within the past five years, the EU Court has upheld the right of member states to restrict the rights of convicted criminals or terror suspects.
The ‘Leave’ campaign has also cited a purported EU court ruling regarding the daughter-in-law of a terrorist residing in the UK. However, no ruling has been issued in that case yet—only a non-binding opinion from an ‘Advocate-General.’ Furthermore, this opinion indicates that the individual in question can indeed be deported if a British court deems her a threat to public security.
Expelling EU citizens based on reliance on social assistance is also permissible.
One final point regarding the free movement of EU citizens. The ‘Leave’ campaign frequently mentions the possibility of Turkey joining the EU. It is vital to note that: a) every member state has veto power over this decision; b) Turkey has only agreed to 1 out of 35 negotiating chapters in 11 years of discussions; and c) a significant period would follow Turkey’s potential accession before the free movement of people applied.
Barnard & Peers: chapter 13
Credits - Meme: Pawel Swidlicki; Graph: The Independent; Photo: home.bt.com