But now we are on the way out, we should think carefully before overhauling the current immigration systemby Catherine Barnard / November 2, 2017 / Leave a comment
A reading of the tabloid press over the last five years or so would have you believe that (EU) migrants are a scourge, that as a European Union member state we can do nothing to stop them coming, that we cannot control them once they are here, nor can we deport them. As a result, taking back control of our borders became an important theme for those advocating Brexit.
The real picture is different. This is not the place to make the case for or against migration. Suffice it to say that for many economists, the argument is overwhelmingly in favour. For sociologists the picture is more nuanced. For some communities, migration is a benefit. It adds colour, diversity, life. For others, migration detracts from the local identity. Lawyers do not, as a profession, take a collective view on any of these questions. Instead, they focus on the rights of migrants, the limits of those rights and the obligations which are placed on the state and on employers.
So if we take this tack, then what scope—or not—might there be for taking back control? Well, the key document under EU law is now the Citizens’ Rights Directive of 2004 which has been implemented into UK law most recently by the Immigration (European Economic Area) Regulations 2016. Does this really say that under current EU law on free movement the UK cannot impose restrictions on EU migration?
Not exactly. The Directive does not give an unrestricted right of free movement. Rather it considers in what capacity an individual moves (eg as a worker) and the length of their stay, before determining what rights they get. In summary, for the first three months, any EU national can come to the UK. However, they can only stay in the UK for more than three months if they are (1) economically active (as a worker, including as a work seeker, or as a self-employed person) or (2) semi-economically active (as a student or as a “person of independent means” but they must have comprehensive sickness insurance and sufficient resources) or (3) a family member of an EU national exercising one of these rights.
Once they have done five years of lawful residence as either an economically active or semi-economically active person EU nationals are entitled to “permanent residence,” and the right…