BY ELSPETH GUILD, ALISON STANLEY, ADRIAN BERRY AND NATASHA GYA WILLIAMS
Following the result of the General Election of 4 July 2024, ILPA Patrons Elspeth Guild, Adrian Berry and Alison Stanley, and Natasha Gya Williams set out some practical options for the new Labour Government and explain why re-opening regional mobility with Europe would kickstart economic growth.
The new Government in the UK is facing many challenges, the economy, state of the national finances and public services being among the most pressing. In the election campaign, the immigration card appears not to have had the impact that some of those of the right and far right had expected and hoped. Instead, economic stagnation, the state of public services and the ravages of the austerity policy (2010–2019 but with on-going effects) seem to have moved public opinion. The relationship of Brexit with these issues is something of an iceberg, very little has been discussed on the surface of the campaigns but the rupture of the UK’s economic and social relationship with continental Europe has touched everyone’s lives directly or indirectly.
Nowhere is this more stark than in the area of regional mobility. On the subject of relations with the EU and immigration, the new Government, before the election, focused on establishing a Border Security Command to deal with small boat arrivals as one of their five first steps. No mention was made of relations with the EU on border controls, nor on the pressing need for revision of regional mobility arrangements to kickstart economic growth. We believe that the new Government should prioritise and actively pursue policies for re-opening regional mobility in Europe, with the UK at the heart of the process.
Regional mobility can reduce the current dependency on immigration from countries far away from Europe where geography alone makes circular economic mobility difficult. It can dramatically reduce recruitment costs for employers through simplified and fee-free procedures, reduce opportunities for unscrupulous intermediaries to prey on workers, and provide new economic opportunities for British citizens to gain work experience, training and education in the world’s largest single market area, the EU. At a time when there are pressing labour shortages in the UK, which have contributed to the shrinkage of the economy, and also recently resulted in rising unemployment, regional mobility may provide some solutions.
The Office for National Statistics (ONS) provisionally estimates long-term migration to have been 1,218,000 in 2023, with EU nationals accounting for just 10% of this number; in 2016 they account for 60%. According to the ONS, ‘The top five non-EU nationalities for long-term immigration flows into the UK in the YE December 2023 were Indian (250,000), Nigerian (141,000), Chinese (90,000), Pakistani (83,000) and Zimbabwean (36,000).’ For international (non-EU) students who arrived in 2018, only around 2% transitioned into work-related visas after two years; for those who arrived in 2021, the figure was 23%. The figures speak for themselves. The end of regional mobility between the UK and the EU has resulted in a dramatic rise in long-term immigration from countries very far away.
British employers, unable to fill vacancies from the domestic labour market (notwithstanding extensive apprenticeship and local training programmes), have been forced to spend thousands of pounds on visa and relocation costs per employee to attract sufficiently qualified people to take up vacancies in the UK. Such individuals have predominantly come from countries very far away (for example India, Nigeria or China) where circular migration is unrealistic in light of the heavy personal choices they have to make to come so far from their families, and domestic labour markets where UK experience may not enhance their opportunities at home. It is time to rethink regional economic mobility between the UK and the EU to bring down these costs, enable British employers access to a highly skilled labour market very close by, and British citizens access to work and study opportunities in the world’s largest multi-national regional mobility area: the EU.
Below are some practical solutions which the new Government could pursue to redress the currently highly anomalous situation. These are presented in the knowledge that any return to EU-style free movement of persons is unlikely to occur soon. This may be short-sighted and it is possible that in the lifetime of the coming Parliament the opportunity to realign the British economy with its largest trading partner, the EU, will be addressed. In this context, simplified and improved regional economic mobility would be a feature. The options set out here could be pursued outside of a wider agreement on future relations and in the fullness of time might assist towards a normalisation of mobility relations between the UK and the EU. As these options would be negotiated between the parties, the basis would be reciprocity meaning that British citizens would be equal beneficiaries of the new mobility options.
Youth Mobility
In 2023–2024 both the UK and the EU have contemplated an agreement or reciprocal arrangements for increased youth mobility. These approaches for the moment are on hold. We believe they should be pursued rapidly. The advantages of a simplified mechanism for young people between 18-30 (the ages under discussion) to move, work, study, holiday etc. for extended periods (four years has been suggested) on the territory of the other are self-evident. For the UK, many low-skilled job vacancies remain unfilled and are not within the scope of the skilled worker immigration rules. This creates enormous problems for employers who are unable to expand or replace workers because of the dearth of candidates. Youth mobility places the decision to move in the hands of young people who want the experience of living in another country, with the ability to support themselves while doing so. Also including study is important as young people very frequently want to improve their skills through studying while working. The inclusion of study may also necessitate a level playing field as regards student fees for EU students in the UK and vice-versa.
Frontier Workers
Many British citizens and EU nationals seek to work on the territory of the other without moving residence. The excellent and affordable travel opportunities between the UK and many EU destinations makes this feasible. Frontier workers remain resident in their home state and within the social security system there, while working in another country. This means that the costs for the host country are very limited. The current UK skilled worker immigration scheme does not accommodate these workers. Opening up a simple and efficient regional frontier worker scheme would create excellent new opportunities for both the UK and EU.
Self-employment
All UK governments must take care to ensure that the domestic labour market is properly protected from social dumping and competition which could dampen wages. The self-employed do not enter the labour market but provide valuable economic activities, often including the creation of new employment opportunities. The EU has recognised self-employment as a useful mechanism to improve economic activity without disrupting labour markets and as such has included it in many agreements with third countries. This was an important feature of the pre-2004 EU accession agreements with Central and Eastern European countries. The UK and EU could introduce a simplified self-employment category for nationals of the two following the model of the accession agreements.
Worker registration schemes
In the context of the post-2004 accession of Central and Eastern European countries to the EU, provision was made for labour mobility but states were permitted to establish worker registration schemes to keep control over the movement of workers and also to exclude economic sectors from the scheme. This would be a wider option to improve the operation of labour markets and give employers access to the workers they need without the red tape of the skilled worker scheme which places such heavy financial burdens upon them.
The above options could be pursued by the new Government either in tandem or separately. They would assist in resolving many of the outstanding issues of mobility between the EU and the UK and fulfil the legitimate interests of both parties. They are consistent with the creation of a Border Security Command but instead of costing large amounts of public funds, these mobility options are inexpensive and likely to increase tax revenues both from bringing new entries to the labour force and from increasing self-employment.
Elspeth Guild is Senior Legal Counsel in the Immigration team at Kingsley Napley and is an expert in the field of European Union free movement of persons, immigration and borders law and practice. She is also a professor of law at Queen Mary, University of London. Elspeth was previously a co-convenor of ILPA’s European Working Group and became a Patron of ILPA in 2022.
Adrian Berry is a barrister at Garden Court Chambers. He has an extensive practice in British nationality law, both in historic Commonwealth-based claims and in contemporary issues concerning the automatic acquisition of citizenship, naturalisation and registration, as well as deprivation and loss of British nationality. Adrian was Chair of ILPA’s Committee of Trustees from 2014 to 2020, and was appointed Patron of ILPA in 2021. He is a regular trainer for ILPA and convenes the ILPA Legislation Working Group.
Alison Stanley is Senior Consultant in the Immigration, Asylum and Nationality team at Bindmans LLP. She has made many valuable contributions to improving best practice as an ILPA trainer, and access to justice, through her involvement with the Refugee Women’s Legal Group, the Law Society’s immigration law committee and Immigrants Aid Trust, among others.
Natasha Gya Williams is the lead partner at Gya Williams Immigration where she specialises in work-related immigration applications, including skilled worker sponsorship and right to work issues. She also provides expert advice to individuals entering the UK in a personal capacity, for example as investors, EEA nationals, or as family members.
ILPA invites members and other leading experts to contribute articles to its monthly blog. The views expressed in all blog posts are the authors’ own and are not necessarily those of ILPA.