EU debate: “Exit will only act to strengthen Fortress UK”

Mikhil Karnik argues that EU law is essential in ensuring that some, including some of those from outside the EU,  have the right to reside in the UK.

I understand why Owen Jones seeks to seize the opportunity presented by the conduct of the EU and the leaders of its member states in relation to the Greek crisis to build a radical left bulwark against the narrative presented by UKIP and the Tory right. However, his approach also demonstrates the dangers and pitfalls for the left in any no campaign.

What Jones, and indeed others on the left who are now open in their support for a no vote singularly fail to address, and for me perhaps what is the most important issue, is the effect and consequences on those who currently have a right to reside in the UK through the UK membership of the EU.   In doing so they also miss the opportunity to build alliances with those migrants. As a lawyer my first recourse is naturally to the law, as a socialist it instinctively is not, but the effect of EU law is real and cannot be ignored.

EU law

Each member state has signed up to implementing EU law in full, acting contrary to EU law risks sizeable and punitive sanctions from the Court of Justice. EU exit, and along with it, presumably, repeal of The European Communities Act 1972, removes the basis for relying on those laws: they will cease to have effect. There are three aspects of EU law as it relates to migration that have an immediate and particular bearing on the debate for the left.

Firstly, the right to reside in the UK is not limited to the 2.5 million EU nationals living in the UK. It extends to their family members whatever their nationality, and indeed the term “family” has to be interpreted broadly.  It includes extended family members, and also because of EU law, the right to reside includes in certain circumstances for non-EU parents of British children.

Secondly, EU migrants and their families are not subject to immigration control, a vote to exit the EU, in circumstances where there is a Tory government, has to mean that that is also a vote to change their status to being one of subject to immigration control.

Thirdly, EU migrants and their families living in the UK have a right to reside in the UK. That right is conferred by EU law, it has direct effect, and only exists in the UK because of EU law. By contrast, UK law itself does not provide a general right of residence for foreign nationals.  Migrants subject to immigration control and outside the ambit of EU law have no right to reside, instead they may be given leave to remain by the Home Office.

A right to reside is qualitatively different to permission to stay. Any leave to remain can be revoked by administrative decision/order; most, but not all, such decisions were appealable, but the last government restricted rights of appeal against certain decisions and made other decisions only appealable outside of the UK. Because leave to remain is granted by the Home Office, it can and does change conditions related to that leave, it can cancel, vary or refuse to renew such leave, sometimes whimsically; a migrant’s lot is a precarious one.

The plethora of controls that apply to non-EU migrants have no bite for EU migrants, although that does not mean that EU rights are inviolable. For the most part EU nationals have to be in the UK as workers, self-employed or self-sufficient.  But even then there are exceptions. The Home Office cannot deny people’s rights, but they may interfere with them, up to and including removing a person, but only if that interference is proportionate, and then the burden falls to the authorities to demonstrate the action they propose is proportionate.

If the UK votes to exit then the legal position of the millions of EU migrants, plus their non-EU family members has to change and significantly for the worse. They will most likely lose those rights. Their comparatively secure position will become precarious. Cameron wants to change the UK’s relationship with the EU, but the right to reside is deeply rooted in EU law and is most unlikely to be disturbed in the near future. The left cannot gloss over the potential impact on EU migrants settled in the UK.

A few examples show the reach of EU law. A Spanish national of Pakistani origin living and working in the UK seeks to bring his wife and 4 children into the UK from Pakistan, they are all Pakistani nationals. He doesn’t earn £29,600 pa, a requirement otherwise under the immigration rules, and so the only basis upon which the family can live together in the UK is by relying on EU freedom of movement/residency rights. Were he British or not an EU national it would have been impossible for him to meet the conditions set by the immigration rules. I would find it very hard to say to him I’m voting “no” in the referendum, because a practical outcome of a no vote is likely to be to take away his EU right to reside and his family’s right to move freely into the UK.

Understandably he would be wholly uninterested in macro-economics when what is at stake for him is something intensely personal. What about the Hungarian national who works on minimum wage in a packing factory and is relying on EU rights to keep her Pakistani husband here who otherwise has no basis to stay? Then there is the disbelieved Gambian failed asylum seeker who, but for her British daughter, relying solely upon EU rights, would have been removed.

It is the fact that EU rights are effective that so incenses the Tories and UKIP. Hand in hand with freedom of movement is the right to reside and that is where the referendum really bites. A migrant who succeeds in placing themselves within the ambit of EU law is not subject to immigration control, unlike almost all other migrants who have not become British. For those without direct experience of immigration control it is hard to comprehend the extent of interference that the system immigration control imposes with every aspect of life.

The Secretary of State for the Home Department, Theresa May, can and does change the immigration rules at a whim, there have been over 30 changes in the past 3 years. The rules now run to 1221 pages, and the costs for each application has skyrocketed; a family application now runs to thousands of pounds, and an innocent slip leaves the person without leave. Theresa May has sought, and has to a large degree succeeded, in emasculating article 8 in the sphere of immigration, by contrast, EU rights continue to have real purchase.

Fortress UK

Left exit rightly condemns Fortress Europe, as hundreds of thousands perish seeking entry. But exit will only act to strengthen Fortress UK, as not only will it impact EU nationals it will equally affect the many non-EU nationals who nevertheless find themselves able to rely upon EU law.

Fortress Europe on one level accurately describes the approach that EU leaders and policy makers adopt towards migration into Europe, but it also acts to simplify and obfuscate the real nature and extent of borders. The border to the EU doesn’t just run round the coastline of Europe, it passes through Heathrow and Manchester Airports, the consulates in Islamabad and Nairobi. The UK border additionally passes through workplaces, hospitals and homes in the UK as UK immigration law imposes requirements and restrictions on amongst other things the right to work, access to healthcare and social security, the right to marry, places to live and opening bank accounts, it provides investigatory powers and scope for detention without clear limit.

EU law of course is not limited just to the area of free movement. For example, many asylum seekers are also able to rely upon the broader scope of protection provided by many EU directives. The Refugee Convention simply does not cater for those fleeing indiscriminate violence. EU law stepped in to fill that gap; exit would permit the Home Office to refuse to recognise that particular, and large, group of individuals. As a lawyer in every aspect of law in which I practise I find answers and protection derived from EU law in places where domestic law fails. Exit, and with it the implied revocation of EU law, would significantly hamper my ability to seek protection for the most vulnerable.   It would equally untie many fetters on the powers the British state may exercise against individuals.

A left exit campaign that is anything more than tokenism or abstract grandstanding has to also have meaningful answers for those migrants in the UK who stand to lose a great deal by a vote to exit. Likewise, for those arguing for a yes vote, migrants’ rights have to be at the fore. It’s simply no good, as Alan Johnson recently has done, to equivocate over free movement.   Solidarity has to be the proper starting point. One pressing thing is the need to stand up in outrage against the exclusion of EU migrants from the right to vote in a referendum that will have greater effect on them than all others living in the UK. Regrettably the silence of left leadership in both the yes and no campaigns on that has been deafening, topped only by Labour MPs shamefully voting with the Tories against an SNP amendment to the Bill which would have extended franchise to EU nationals.

 

There are 18 comments

  1. Secular Vegan

    You’ve unintentionally specified some of the the excellent reasons why we *should* regain our independence from the EU, notably that the population can be kept to an environmentally and economically sustainable level by closing all the immigration loopholes; and that is without even addressing the cultural issues of people who are *not* European travelling on the passport of another European country.

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  2. Kevin Ovenden

    I’m all for debate. But this is such conventional reformism. Really. This is straight from Progress. I’m sorry, but this is not the actual debate on the radical left.

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  3. Richard Atkinson

    ‘Conventional reformism’? What a devastating indictment. The author carefully explains the catastrophic effect of Brexit on millions of immigrant workers in a racist political climate. Comrade Ovenden answers none of these points; instead waves his arms, calls it reformism, and implies that he has a higher and more radical grand strategy which overrides the specific, concrete effects outlined here. The fact that the first reply here is from some racist shit brings the implications home. If the ‘actual debate’ on the left is not about the actual effects of UK exit from the EU, sponsored by actual racists, with actually racist ends in mind, perhaps we need a different debate.

    Liked by 1 person

    1. Secular Vegan

      Thank you for calling me a ‘racist shit’ for suggesting that the UK, which already has an unsustainably high population density is perfectly justified in having stringent immigration restrictions. The fact of the matter is that the political left have abandoned working-class Britons, who in turn have now abandoned the political left. You can have as many Marxist theological debates as you like, but it will do you no good. ‘Old’ Labour opposed the EEC/EU because it knew that an enlarged labour market would lead to downward pressure on living standards. Since then the left has totally lost the plot.

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  4. nicholascimini

    I have no sympathies with Mr Vegan’s contribution (the problem isn’t an “unsustainably high population”, it’s the unequal distribution of resources throughout Europe and beyond). However I’d also suggest that the article above and those supporting it are naive, at best, to suggest that the status quo (EU membership) is some kind of safety net for migrants. The above argument is also somewhat Anglo-centric. Nothing is said about the impact of Brexit on other European countries, nor about the impact on the capitalist class, nor about the public spending limits currently imposed by the EU on, say, the current Scottish government, nor about the democratic deficiencies of the EU, etc., etc.. These issues are dismissed here as seemingly irrelevant “macro-economics”. Migration (of EU and non-EU migrants) is obviously an issue (which won’t be solved by voting Yes) but there are other issues deserving of attention too.

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    1. Secular Vegan

      I have no sympathy for the political left who think that the UK can accommodate millions more people without impacting upon the living standards of the working class, let alone the ecological impact (which the ‘Greens’ totally ignore). The impact of ‘Brexit’ on other European countries is for them to work out. Overall, a Europe of independent nations on good friendly trading terms is the only sane solution.

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  5. PW

    Kevin, I’ll take “conventional reformism” that is genuinely concerned for the interests of migrant workers any day of the week over a radical leftism that is entirely unconcerned about the fate of actual living breathing migrant workers and if you can’t even debate said reformism, what does that say about the strength of your politics?

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  6. RayB

    Oh dear, UKIP have got a vegan branch. Billions £ worth of food is wasted in the UK & EU by greedy corporations and extensive luxury housing complexes are springing up all over Europe as speculation portfolios for the rich but UKIP vegan is complaining about migrants using up resources. You’d think that someone who championed the ethical treatment of animals and environmentalism would extend that concern to oppressed human beings but no, racism can twist any idea to fit its needs. Didn’t someone else in history share such a contradiction?

    Liked by 1 person

    1. Secular Vegan

      Oh dear, the political ‘left’ of course still think it is acceptable to support the corporatist project that is the EU and squeal ‘racist’ at anyone who opposes it. It is sad really because Old Labour understood the purpose of the EU, but the modern ‘left’ don’t. Oh and I am am neither rich nor UKIP; and if you are going to bring up Godwin’s Law, no the person in question didn’t.

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  7. RayB

    I’m against the EU because it’s undemocratic, imposing austerity and strengthens the hand of our own ruling class – you’re against migrants on the basis of some spurious argument about resources that is text book UKIP. Anyone who places the word left in scare quotes is really not in a position to complain about Godwin’s law.

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  8. Mark

    Hi Ray, see any problems emerging with your position? You’re voting with UKIP’s vegan branch (and their other wings, too). You’re opposed to the EU, but the people who will vote with you – almost everyone else – are doing so for, err, other reasons.
    You win a no vote, and what happens next? Migrants suffer. Everyone understands this. So why do it?

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  9. nicholascimini

    Mark, that moralising tone isn’t going to persuade anyone. One could just as easily respond in a likewise fashion by saying that voting for the status quo (or worse if Cameron gets his way), alongside the majority of the capitalist class, is gonna make everyone (migrants included) suffer.

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  10. RayB

    Yes, migrants have got it great at the moment. You only have to view the hotel they’re staying in at Calais to see EU hospitality in action. Then there are those cruises on the Med migrants keep boarding and how seriously the EU takes their safety at sea. Apologies for my facetious attitude but it’s important to make the point that the EU is not concerned about human rights when it comes to migrants, especially as they are cutting funding and trying to blame migrants for the recession – UKIP doesn’t have a monopoly on racist ideology.
    The EU’s response to migrants is directly connected to austerity policies across the Europe which makes it even more important for anyone concerned about migrants to campaign to pull out of it. Challenging UKIP’s racism is part of that campaign which has already had some success. To not build on that and totally capitulate to establishment myths about EU democracy will bring the same result for the left as it did for Labour after their support for the union in Scotland. The EU was set up to benefit the bosses. Greece is a naked example of that policy. If we want to defend workers both inside and outside the UK then we need to campaign to end fortress Europe.

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  11. Mikhil Karnik

    Kevin, it seems to me that how the radical left addresses a rising tide of anti-migrant sentiment is precisely the issue for us today, it cannot be sidestepped. Nicholas, I was not seeking to dismiss the antidemocratic neoliberal nature of the EU; that has been exposed for all to see by the EU response to the Greek crisis. And Ray we only have to see the latest “consultation” on asylum support changes to get a hint of where this government intends to go. Without repeating myself the real danger faced by the millions of EU migrants residing in the UK today is that they end up with exactly the same “rights” as those wretched souls in Calais. Nicholas, you are right that a yes vote is also highly problematic, and that the issues in Scotland may well be different; but the impact of Brexit on the EU appears at the moment pretty speculative to me. The IS tradition successfully centred itself on supporting neither Washington nor Moscow, equally critical of both. A useful lesson for today’s debate. See Adam DC’s post which further explores that approach.

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  12. RayB

    200 migrants drowned today while the EU sat back and did nothing. This is the message we in the NO camp need to get across to those who believe that the EU has a better human rights record than all the individual nations of which it’s comprised. Workers and migrants have far less democratic control over the EU, which is effectively dictating policy in Greece against the wishes of the electorate, than they do in the UK where, as Corbyn’s campaign shows, they have the possibility of challenging Tory austerity and the racist policies that accompany it.
    The IS slogan condemned two rival imperialist nations where neither the state capitalism of Russia nor the expansionist foreign policy of the US offered a solution to workers. Campaigning for a UK split from the EU is entirely in the tradition of undermining such imperialist blocs.

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  13. Heath Terrey

    Furthermore, Britain could also restrict access to welfare benefits for EU citizens to act as an economic disincentive for coming to the UK. David Cameron has set out plans, but whether they get past other EU nations remains to be seen. Exit provides the UK the freedom to act unilaterally here.

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