On 23 June, the British electorate will be asked the following question: ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ Immigration, an emotional and complex issue for the UK, will play a significant role in the decision.

Since the last referendum in 1975, the political, social, and economic landscapes of Europe and the EU have changed dramatically. With 28 member states and a mosaic of institutions and governmental bodies that touch on nearly every aspect of life, the EU is more complex and far-reaching than ever before.

As with all EU member states, the UK is part of the single market, a successor to the common market, which provides for the free movement of people, goods, services, and capital within the union. Though access to the single market comes with a host of benefits, it also involves reciprocal duties. So, with regard to immigration, while UK nationals may reside, work, or study in any European Economic Area (EEA) member state or Switzerland, so too may the citizens of those nations in Britain.

Advocates for the Remain campaign, led by ‘Britain Stronger in Europe’, claim that a Brexit could result in the loss of millions of jobs, higher costs of goods, increased interest rates, and the likelihood that the UK would have to consent to both free movement and some form of EU budget contribution to secure access to the single market (as is the case with Norway and Switzerland).

By contrast, Brexit supporters, led by ‘Vote Leave’, believe that relinquishing EU membership will benefit the UK in a number of ways, including providing greater control over borders (thus enhancing national security and immigration oversight), allowing more flexibility to negotiate bespoke trade deals, ending onerous payments of EU dues, and relieving pressure on social services, in particular the NHS.

In recent weeks, however, with a surprising consensus among economists that a Brexit would do more harm than good to Britain’s economy, the Leave campaign has changed tack to tap into public anger over the UK’s inability to control migration from within the EU.

Indeed, migration from the EU to the UK has increased significantly in the past decade and a half, more than doubling since 2004. With net migration figures reaching a record high of 336,000 in the year to June 2015, 180,000 of whom were from the EU, it is unsurprising that a recent Ipsos MORI/Economist survey found that the British public view immigration as the most important issue facing the UK today.

Problematically, though, many of the assumptions Brexit supporters make to shoulder the argument that leaving the EU would reduce immigration are myopic and fail to consider how other aspects, such as access to the single market, would impact the the UK’s ability to opt out of the free movement of people.

Possible scenarios

Before his announcement of the referendum date, and in an effort to help secure a remain vote, David Cameron engaged in a series of negotiations with member state partners on new terms for the UK’s relationship with Europe. While the agreements fall short of what Cameron had hoped for, and though critics argue they are too little too late, he secured the following changes, which would take force immediately should the UK vote to remain in the EU:

  • an exemption from an ‘ever closer union’;
  • limited, graduated access to in-work benefits for EU migrants for up to four years from the commencement of employment;
  • the ability to index exported child benefits to the child’s member state of residence;
  • retention of the pound with recognition that the EU has more than one currency;
  • an agreement that countries outside the eurozone would not be required to fund euro bailouts and any central EU funds used to do so would be reimbursed; and
  • limitations in certain cases on free movement for non-EU nationals who marry EU citizens.

In contrast to a vote to remain in the EU, which would see relatively little change, exiting would require unparalleled and as yet undetermined reforms.

From a procedural standpoint, a Brexit would trigger a two-year transition period under article 50 of the Lisbon treaty, which sets out the mechanisms to withdraw from the EU. Should more time be needed, the UK could apply for an extension, but this would require unanimous approval from all 27 remaining states. Indeed, were one member to veto the extension, the UK would be required to leave, potentially without a trade partnership (or any other agreements for that matter) in place, which could result in severe challenges. Moreover, there is a genuine concern that negotiating trade agreements with the EU and other trade partners like the US could take up to a decade or more.

Purely from an immigration perspective, the UK would first need to determine how to manage EU nationals currently exercising their treaty rights in the UK, as well as UK citizens living in Europe. Certainly, no rational argument exists to suggest that sudden mass deportations on both sides of the Channel would occur following a vote to leave. And with over 300,000 Brits living in Spain and 1.2 million dispersed across the rest of the EU, it is fair to assume that some type of reciprocal arrangement would quickly be agreed.

Addressing the status of new EU migrants seeking entry to the UK would require a different approach, particularly in light of the fact that the desire to curb immigration would almost certainly have played a prominent role in a vote to leave. While some in the Leave campaign profess that the UK could negotiate free movement for its own citizens, establish sovereignty over Britain’s borders and negotiate access to the single market for trade, few outside of the Brexit camp believe this siloed course to be achievable. Accordingly, taking a more circumspect approach, there are several possible scenarios.

One way the UK could retain access to the single market would be to join Norway, Iceland, and Liechtenstein as a member of the EEA. Problematic, however, is the fact that all of these countries adopted free movement as a condition of access. Alternatively, the UK could attempt a Swiss model, where it would be party to neither the EEA nor the EU, but instead have bilateral agreements to access the single market. However, the Swiss, who have also adopted free movement principles, are currently facing a strained relationship with the EU following their referendum vote to impose migrant quotas. It should also be noted that Norway and Switzerland both have higher proportional rates of migration than the UK.

Setting aside the issue of access to the single market and free movement for British citizens, the UK could extend its current points-based system (PBS) to all migrants (now it applies only to non-EEA/non-Swiss nationals), or create a separate points system for EU migrants (many have called for an Australian-style system). However, were the UK to opt out of free movement principles, most experts agree that it would need to explore new ways to ensure there was a flexible mechanism in place to meet labour needs, particularly in the low-skilled market. This could involve opening Tier 3 (for low-skilled workers) for the first time and lifting caps on several of the current PBS categories, or perhaps even some form of EU migrant work permit programme based on occupational shortages.

Finally, it should be noted that a Brexit could trigger a new referendum on Scottish independence. Were Scotland to leave the UK, its own membership of the EU would likely be conditional upon joining the Schengen Agreement, which would require a land border to be established between Scotland and the UK. This, alongside the possibility of needing to re-establish border controls between Northern Ireland and the Republic of Ireland (proponents of the Leave campaign claim that there will be immigration controls between the EU and UK), could even call into question the entire Common Travel Area.

Should we stay or should we go?

Immigration is regarded as the most important issue Brits face today. In many ways this represents fears and frustrations that are inherently human – fear of a loss of identity, fear of insecurity, anger at perceived abuses of the system. But immigration is also a necessary and vital part of every successful society, particularly the UK’s.

The upcoming referendum turns on much more than immigration, and there is a danger in succumbing to the seduction of single-issue simplicity. It is important that this decision be informed by a view from 10,000 feet – above the fray of political rhetoric and gamesmanship – where as many constituent parts as possible can be considered, and where a decision based on the whole, rather than any one issue, may be made.

Laura Devine, Laura Devine Solicitors

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