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.
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.
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.