UK prime minister eyes revamp, not rejection, of free movement

August 23 2016. By Matthew Holehouse.

Theresa May’s office has observed a radio silence on her Brexit plans this month, unnerving some officials and leaving the UK prime minister’s colleagues to fill the void.

Briefings from Whitehall suggest some government officials want the UK to seek a Canadian-style, trade-only deal with the EU.

Their assumption is that June’s referendum was a public rejection not just of the EU, but also of the free movement of people that union membership brought with it. To leave the EU while accepting to be bound by rules on the movement of EU citizens would go against the spirit of the referendum’s outcome, or so they would argue.

But this is at odds with May’s own words from earlier this summer, which indicate that she is seeking to revise, rather than reject, the current rules.

The prime minister’s statements on the issue indicate that she is still hoping to cut a deal in which the UK would accept a degree of free movement — to an extent that would be palatable to both Brussels and the British public.

In statements following a succession of bilateral meetings with the leaders of Germany, France, Slovakia and Italy in July, May consistently used the same, careful formulation: The British people had issued a “clear message” that they want “some controls” introduced to the freedom of movement for workers.

“They don’t want rules for movement of people from the European Union member states into the UK to operate as they have done in the past,” she said after her meeting with Matteo Renzi, the Italian premier.

At the same time, the UK is seeking the “closest possible” economic relationship with the EU, May consistently said. If such a relationship means membership of the single market, then that would entail embracing free movement, European leaders have warned.

To cut such a deal, May has surrounded herself with experts in the EU’s migration policy.

Oliver Robbins, the permanent secretary at the Department for Exiting the European Union, was most recently the Home Office official in charge of free movement policy and immigration. The new department’s official in charge of migration, Chris Jones, was formerly the Justice and Home Affairs counsellor at the UK Permanent Representation in Brussels.

May’s apparent willingness to compromise is at odds with the briefings coming out of Whitehall. Her public utterances are also hard to reconcile with the official Leave campaign’s pledge to introduce an Australian-style skills-based points system for European migrants, which would amount to a clear violation of free movement in its current form.

EEA precedents

Whatever Britain’s future arrangement with the EU, it is likely to be tailor-made. But there are a number of existing models for non-EU states that could be emulated.

The UK could, for example, remain in the single market by joining the broader European Economic Area, which brings Norway, Iceland and Liechtenstein together with EU member states.

This “Norway model” would leave Britain bound by freedom of movement. But clause 112 of the EEA agreement provides for an “emergency brake” on migration, allowing members to unilaterally impose unspecified measures in the case of “serious economic, societal or environmental difficulties of a sectorial or regional nature.”

It is a power that comes at a price: The European Commission can respond by imposing “proportionate rebalancing measures” to other areas of the deal.

David Cameron is said to have considered asking for a similar brake measure as part of his renegotiation ahead of the referendum, before being cautioned against it by Angela Merkel, the German chancellor.

The alpine state of Liechtenstein, another EEA member, has an even more restrictive arrangement. Due to its “specific geographic situation,” the country of 36,000 people is permitted to limit EEA migration to 89 residency permits a year, half of which are allocated by lottery. There are separate quotas for workers and non-workers.

Britain’s circumstances are clearly different. But Cameron’s renegotiation deal last year set a striking precedent for how much flexibility could be found within the rules on non-discrimination, even for an existing member state without treaty change.

Under the Cameron deal — which is now void due to a “self-destruct” clause in the event of a negative referendum outcome — Britain was to be permitted to taper access to employment benefits over four years, for an emergency period of seven years.

That was done on the basis that Britain faced an “exceptional situation” that had generated “serious” difficulties for its labor market and put strain on public services. The evidence underlying this assessment was never released.

Workers, not claimants

Government officials say May is still interested in finding ways to restrict free movement to Continental Europeans who have received job offers.

In August 2015, when she was the country’s home secretary, she set out this approach in an article for the Sunday Times, arguing that free movement had caused a painful brain drain for poorer states.

“When it was first enshrined, free movement meant the freedom to move to a job, not the freedom to cross borders to look for work or claim benefits,” she wrote. The Treaty of Rome enshrined the right of free movement “to accept offers of employment actually made”.

But any move toward limiting European immigration to those with job offers would clash with subsequent rulings from Europe’s highest court, which has held that EU job seekers have the right to travel and to stay in a country to look for work.

Although Britain can hope for greater flexibility as an exiting member, the package it signs up to will be a political, not a legal decision.

In finding a solution, May will have to reconcile European leaders’ limited willingness to compromise on free movement with the expectations of British voters.

	Eliot Gao

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