Freedom of movement: an open Scottish immigration regime in a post-Brexit UK
1 November 2017
This article is a personal view by the author, drawing on several published articles by experts on freedom of movement.
The future of Scotland in a post-Brexit world depends on a close relationship with our European neighbours. To achieve that it is essential to replicate, as far as is practically possible, all the measures required by the EU’s freedom of movement provisions.
Support has grown for the idea that Scotland should have a differentiated immigration settlement so that Scotland could develop an immigration policy suitable to our specific circumstances. The purpose of such devolution would be to ensure Scotland's particular demographic challenges, which differ significantly from those elsewhere in the UK, can be met by the public authorities responsible for implementing immigration policy.
In short, a specific immigration policy for Scotland would seek to facilitate immigration into Scotland rather than to make it more difficult. The reason for that is that since the early 20th century Scotland’s population has tended to stagnate at best and it is only since 2000 with the arrival of many EU nationals that Scotland’s population has started to grow again (latest predictions suggest that it will be well above 5.5 million by 2020). Increasing population (to boost economic activity) is a key economic target of the Scottish Government.
International examples of differentiated sub-national immigration regimes
It is far more likely that this population growth would take place under a Scottish government committed to limiting bureaucratic constraints to migration. Various studies have shown that is possible to devise and implement differential regimes on immigration control between different parts of the country with the particular focus on the right to work and study. Such regimes exist in countries such as Australia and Canada where different states/ provinces have different policies on these matters to reflect their own situations.
Each Canadian province and the three territories have their own Provincial Nominee Programs (PNPs), in order to serve their individual immigration needs regarding immigration. With the exception of Quebec, which runs its own programme, these PNPs are brought together in a Canada-wide programme where the federal and provincial governments work together to screen applicants from across the world.
In Australia, each state has its own migration programme, and they work together with the federal government to screen and approve applications from abroad.
UK resistance to partial devolution of immigration is political, not technical or administrative
There is significant resistance to such an approach from the UK government. When she was Home Secretary, Theresa May was resistant to any compromise on these matters. The reason for such opposition is largely politically driven by concerns that centralised control is more effective than a de-centralised approach; however on technical grounds it is possible to implement differential regimes if the political will is there.
In essence, assuming the system depends on workplace and university control of the right to work and study, as the leaked Home Office proposals of September 2017 does, then there is no reason the UK Border Force cannot work with the Scottish authorities to ensure the scheme is not abused, for example by people with the right to work in Scotland seeking to work without permission elsewhere in the UK.
The EU Free Movement regime requires those resident for longer than three months who are economically active to be given the right to equal treatment with UK nationals in employment matters. The UK has chosen to implement the directive in a relatively pragmatic manner by giving EU nationals exemption from normal UK immigration controls.
In essence this means they do not have to apply for a work visa and they are not required to provide biometric data to the UK authorities. EU nationals have certain rights such as voting rights in local and Scottish elections and access to social services, education and healthcare. A particular benefit for EU nationals is that they do not have to subject themselves to bureaucratic controls such as registration with central authorities, as is the case of many other European countries.
How to deal with the rights of EU nationals, post-Brexit
There are a number of potential options for dealing with the rights of EU nationals after Brexit.
Firstly, they could be made subject to rules similar to those applying to other immigrants to the UK from third countries requiring registration and the need to demonstrate the ability to ensure visible funds (for example spouses need to demonstrate they have an annual Income of at least £18600 and can prove this by reference to six months of bank statements).
The second option is that the UK would not reach a specific deal on the rights of EU nationals in the UK following Brexit, in line with the ‘no deal’ option beloved of the Brexiteers. EU nationals would simply have the same position as other foreign nationals in the UK system and be subject to the same rights, which are significantly more restrictive than for current EU nationals who benefit from free movement.
Three reasons for a differentiated Scottish immigration regime
Why would a Scottish government wish to apply a differentiated regime on immigration? There are three key reasons.
Firstly, it has been a matter of principle for the Scottish Parliament since its establishment that Scotland needs to take measures over and above those applying at UK level because of the forces acting to discourage migration to Scotland including geography, family issues and the like.
Secondly, there are clear signs the demographic trends in Scottish society are acting to limit the development of cohorts of teenagers of working age and that securing workers from certain countries will help to meet challenges in key services such as the NHS.
Thirdly, a concern is that given the nature of the new Fiscal Framework that devolves key revenue-raising responsibilities (eg income tax) to the Scottish Parliament, Scotland will face the challenge of raising sufficient revenues to finance public expenditure. The key aspect of this is ensuring buoyant payroll (ie income) tax. In the absence of attracting working age and tax-paying in-migrants, and unlike other parts of the UK (eg London and the South East), Scotland’s demographic profile will hinder its ability to sustain its current public expenditure position.
'Fresh Talent' and occupation shortage lists
Different types of approaches that would secure continuing migration to Scotland are under consideration by the Scottish authorities. These include a continuation of the ‘fresh talent scheme’, allowing students to stay on in Scotland for at least two years after completing their degree to enable them to continue to contribute to economic development.
Alternatively authorities in Scotland and the rest of the UK could look to expand the shortage occupation list which require public and private bodies to demonstrate the areas in which there are shortages in the workforce which require to be filled by labour from third countries.
Why the devolution of migration powers is so important to Scotland
One reason why the devolution of migration powers is so important is because the European authorities have made it abundantly clear that they will only allow the UK and its constituent parts to continue to participate in and lead key European programs relating to science and technology and student exchange if they are prepared to implement the same European freedom of movement rules as applied elsewhere in the European Union.
The reason for this is quite simply that if restrictions are placed on the movement of researchers and students it is practically impossible to be sure that a project can be implemented effectively. The European Union has made it clear to UK bodies that if they do not apply for movement rules they will no longer be allowed to be in the lead on key European corporation projects on technology, to which Scotland has already made a significant contribution.
A Scottish regime would help the economy, tax base and participation in EU programmes
If however, Scotland applies, on its own account, a freedom of movement regime which is equivalent to that applying in Europe there are clear indications from EU bodies that they will be prepared to look at special circumstances for it.
It seems clear that devolving powers to decide who can work and study in Scotland bring public policy benefits in various ways.
- Firstly, it will allow the Scottish Parliament to implement a more liberal regime than is the case elsewhere in the UK, bringing significant economic benefits to Scotland by allowing firms the freedom to move staff around without restriction.
- Secondly, it will allow Scotland to raise taxes from a growing population base that is able and willing to meet and match the levels of public spending required in Scotland.
- Third, Scottish based bodies will be able to lead and participate in European programmes and not be placed at the end of the queue.
- Finally it will give those European nationals who have made the choice to make a home in Scotland the security to continue to live in the country.