Frame from Thelma & Louise
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4 things wrong with the goverment's Brexit immigration plans

The proposals are based on provably incorrect assumptions

The Brexit to-do list is the length of a constantly unravelling ball of string. One of the many items on that list is deciding what the post-Brexit immigration system will look like. On Tuesday, we caught a glimpse of recent thinking at one of the key departments responsible, the Home Office. Essentially, those responsible for the 82 page proposal, dated August 2017, want to sever ties between the UK and EU.

There are concessions in the paper. It is accepted that different rules should be applied to EU citizens compared to other migrants, at least to begin with. The full bureaucracy of the points-based system and Appendix FM for family members would not be brought immediately to bear, for example.

But the proposals would torpedo the evolved, mature and enabling system of free movement of labour. The paper is explicit about ending a rights-based approach. EU citizens arriving after Brexit would have to show passports, not ID cards, would have to apply for short-term two-year visas for low-skilled jobs, would be subject to an income test, would be prevented from bringing some family members and would be committing a criminal offence if they worked or resided in breach of the new tighter rules. Employers, landlords, banks and others would have to carry out “papers, please” immigration checks. In short, the “hostile environment” Theresa May worked so hard to create as home secretary would apply to EU citizens.

There are four major problems with the proposals.

1. It's the economy, stupid

The first and most obvious is that the plans would make the UK a far less attractive destination for migrants. This is of course the whole point. The Home Office is protectionist by nature and worries only about security. The economy, consequent tax take, international relations and “soft power” international standing are considered worth the sacrifice. But what would happen to the sectors of the economy dependent on migrant labour, such as agriculture, food processing and hospitality? Are the public ready for a huge recession, massive job losses and reduced funding for public services and infrastructure?

Nostalgic Brexiteers seem to take inspiration from The Italian Job, the “will-they-won’t-they” cliff edge ending to which might be seen as a parable for the current Brexit debate. An old sector-based scheme can be brought out of retirement. A nationalistic faith convinces them of the inherent desirability of the UK as a destination. With the pound devalued, the UK economy growing slower than any other in the EU and only short-term visas on offer, it is doubtful that migrants would see things the same way. A Latvian looking for work boning chicken breasts or picking asparagus is not driven by nostalgia. Rather, he or she makes informed choices based on maximising income and opportunities.

2. It works both ways

The second problem is that what goes around comes around. Similarly restrictive rules, or worse, would inevitably be applied by the EU to British citizens wanting to travel to, work or reside in the EU in future. This clearly interferes with retirement plans held dear by some Brits, makes it harder for young people to study or work in the EU and creates potentially existential barriers to service industries already facing stiff competition from within the EU. These issues would all exacerbate the effects of the recession brought about by a severe reduction in migrant labour.

3. The only way is hard Brexit

The third issue is that the proposals suggest implementation immediately on Brexit. This would make any status quo transitional arrangement with the EU impossible. Over the next few months businesses will have to decide whether to implement their contingency plans for a “hard Brexit” and this paper suggests that they should assume the UK has pressed the accelerator and is pursuing the unambiguous Thelma & Louise option.

4. Free movement isn't a free-for-all anyway

Fourthly — and perhaps this is just for the pedants and lawyers like me — the proposals are based on provably incorrect assumptions. For example, the paper bemoans that there is “virtually no limit” to the supposed rights of supposedly infinitely extended family members under current free movement laws. In fact the UK is only obliged to “facilitate” entry subject to national laws and can subject such family members to enhanced scrutiny. Free movement is described as “unconditional” but this is false. The paper suggests that current EU migrants do not make all UK residents richer, contrary to all the reputable evidence on this question.

These sort of falsehoods and inaccuracies are always irritating in a government paper. In the context of deciding a future immigration system, something that is of vital importance to our future, they are potentially disastrous.

Colin Yeo is a barrister specialising in immigration law and blogs at Free Movement.

Photo: Getty
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Here's what Theresa May could say to save the Brexit talks

The best option would be to invent a time machine, but unfortunately that's not on the table. 

One of my favourite types of joke is the logical impossibility: a statement that seems plausible but, on closer examination, is simply impossible and contradictory. “If you break both legs, don’t come running to me” is one. The most famous concerns a hapless tourist popping into a pub to ask for directions to London, or Manchester, or Belfast or wherever. “Well,” the barman replies, “I wouldn’t have started from here.”

That’s the trouble, too, with assessing what the government should do next in its approach to the Brexit talks: I wouldn’t have started from here.

I wouldn’t have started from a transient Leave campaign that offered a series of promises that can’t be reconciled with one another, but that’s the nature of a referendum in which the government isn’t supporting the change proposition. It’s always in the interest of the change proposition to be at best flexible and at worst outright disregarding of the truth.

Britain would be better off if it were leaving the European Union after a vote in which a pro-Brexit government had already had to prepare a white paper and an exit strategy before seeking popular consent. Now the government is tasked with negotiating the terms of Britain’s exit from the European Union with a mandate that is contradictory and unclear. (Take immigration. It’s clear that a majority of people who voted to leave want control over Britain’s borders. But it’s also clear that a minority did not and if you take that minority away, there’s no majority for a Leave vote.

Does that then mean that the “democratic” option is a Brexit that prioritises minimising economic harm at the cost of continuing free movement of people? That option might command more support than the 52 per cent that Leave got but it also runs roughshod over the concerns that really drove Britain’s Leave vote.

You wouldn’t, having had a referendum in inauspicious circumstances, have a government that neglected to make a big and genuinely generous offer on the rights of the three million citizens of the European Union currently living in the United Kingdom.

In fact the government would have immediately done all it could to show that it wanted to approach exit in a constructive and co-operative manner. Why? Because the more difficult it looks like the departing nation is going to be, the greater the incentive the remaining nations of the European Union have to insist that you leave via Article 50. Why? Because the Article 50 process is designed to reduce the leverage of the departing state through its strict timetable. Its architect, British diplomat John Kerr, envisaged it being used after an increasingly authoritarian state on the bloc’s eastern periphery found its voting rights suspended and quit “in high dudgeon”.

The strict timeframe also hurts the European Union, as it increases the chances of an unsatisfactory or incomplete deal. The only incentive to use it is if the departing nation is going to behave in a unconstructive way.

Then if you were going to have to exit via the Article 50 process, you’d wait until the elections in France and Germany were over, and restructure Whitehall and the rest of the British state so it was fit to face the challenges of Brexit. And you wouldn’t behave so shabbily towards the heads of the devolved administrations that Nicola Sturgeon of the SNP and Carwyn Jones of the Welsh Labour Party have not become political allies.

So having neglected to do all of that, it’s hard to say: here’s what Theresa May should say in Florence, short of inventing time travel and starting the whole process again from scratch.

What she could do, though, is show flexibility on the question of British contributions to the European budget after we leave, and present a serious solution to the problem of how you ensure that the rights of three million EU citizens living in Britain have a legal backdrop that can’t simply be unpicked by 325 MPs in the House of Commons, and show some engagement in the question of what happens to the Irish border after Brexit.

There are solutions to all of these problems – but the trouble is that all of them are unacceptable to at least part of the Conservative Party. A reminder that, as far as the trouble with Brexit goes, Theresa May is the name of the monster – not the doctor. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to domestic and global politics.