Richard North, 07/05/2014  
 

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The latest TNS poll has a message for us, reporting that 56 percent of those who want to leave the EU offer as their main reason that it would "allow stronger control of our borders" and thereby reduce migration.

This illustrates the degree to which the control of immigration has overtaken the "eurosceptic" agenda, so much so that it features prominently on the front page of the UKIP election leaflet – one of the reasons why we so readily consider the party has become "BNP-lite" and, as Complete Bastard indicates, the great white hope of the anti-fascist groups.

Confronting the problem of constructing a realistic EU exit plan, however, this idea of regaining control of our borders, to reduce immigration, presents us with considerable difficulty if we are to adopt the so-called "Norway option", which gives us participation in the EEA.

Within the EEA Agreement, the "four freedoms" in the EU treaties are repeated. These are the free movement of goods, people (and the right of establishment), capital, and services. As long as Britain remains a member of the EEA, therefore, these freedoms will continue to apply.

Those applying to goods and services are largely uncontentious but, in the longer-term, application of the freedoms concerning the movement of people and the right of establishment will have to be reviewed if we are to satisfy the requirements of the many who want to leave for reasons of reducing immigration.

However, the EU regards its "freedoms" as a non-negotiable part of the Single Market acquis. This was uncompromisingly reaffirmed by Viviane Reding, a Commission vice-president., who recently stated: "if Britain wants to stay a part of the Single Market, free movement applies". Within the EEA, Britain would be obliged to permit immigration from the entire area.

This, though, is not a problem unique to the Norway option. Even Swiss bilateral agreements have afforded little relief. On 21 June 1999, the EU and Switzerland signed an Agreement on the Free Movement of Persons, which came into force on 1 June 2002.

This extended the right of free movement to citizens of EEA Member States, and was complemented by the mutual recognition of professional qualifications, the right to buy property, and the coordination of social security systems.

By the end of 2012, 23.3 percent of the 8,039,060 population was foreign, compared with 13 percent (7.5 million) in England and Wales. Of the 1,869,969 foreigners in Switzerland, 85.1 percent were European. Three-quarters were nationals of an EU or EFTA member state.

This was despite additional protocols restricting the movement rights of the 2004 enlargement bloc (EU8), and Romanians and Bulgarians. These protocols introduced a "safeguard clause" that permitted quotas on residence permits. EU8 citizens were granted unrestricted free movement rights only on 1 May 2011 while Bulgarian and Romanians will remain restricted until 31 May 2016.

Such has been the increase in immigration that in 2013, responding to increasing public concern, quotas were reapplied to EU8 citizens and then to nationals of all the other EU states.

The restrictions were due to last one year but the Swiss People's Party (SVP) forced a referendum, held on 9 February 2014, on whether they should continue. Before the vote, Foreign Minister (now president) Didier Burkhalter argued that it "would jeopardise … relations with the European Union" and "test Swiss treaty obligations".

Contrary to an assertion that the Swiss model is "the only way to regain control of our borders", Ueli Maurer, Swiss president of the SVP, declared that "Switzerland has given up its freedom to be able to determine its own policies". On the day, 50.3 percent voted to continue the quotas, putting at risk the entire raft of bilateral agreements under a guillotine clause, actionable if any one agreement was broken.

These developments have significant implications for British negotiators. Firstly, the original Agreement and protocols demonstrated that flexibility in negotiations from outside the EU is possible: the Swiss obtained a better transitional deal on accession countries than did EU/EEA members. Secondly, as the Swiss are finding, there is a growing mismatch between what governments agree and what their citizens are prepared to accept.

Thus, while the British negotiators will be under pressure to accept freedom of movement provisions, these might not be acceptable to the electorate. In one recent poll, 61 percent of swing voters in an EU referendum poll (20 percent of the total) saw EU immigration as the most important issue in any renegotiation, compared with 34 percent who saw freer trade with non-EU countries as important. 

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Therein lies the possibility of an intractable problem for an exit plan. Following completion of the Article 50 negotiations, the public may well demand a referendum on the agreement. Negotiators, therefore, will have to take account of what is politically possible, as well as that which seems essential to conclude the agreement. Unrestricted free movement of people could be a deal breaker, forcing Britain to pull out of the EEA and consider other, less attractive options.

There is, however, one fallback position, Articles 112-3 of the EEA Agreement, the "Safeguard Measures" which permit the parties unilaterally to take "appropriate measures" if serious economic, societal or environmental difficulties of a sectoral or regional nature arise and are liable to persist.

These measures had been invoked by Liechtenstein, an EEA member with less potential influence than Britain. They were further reinforced by Protocol 15 (Article 5–7) of the EEA agreement, which allowed Liechtenstein to keep specific restrictions on the free movement of people until 1998.

Given unacceptable effects arising from freedom of movement, the UK is therefore empowered to take remedial action. However, the situation is complicated by the estimated 1.8 million Britons resident in EU territories, and the estimated 4.5 million nationals of mainland EU member states resident in the UK.

They enjoy entitlements known as an "executed right", embodied in the Vienna Convention (Art 70b). "Withdrawal from a treaty", it states, "does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination".

This view is supported by Lord McNair (Lord McNair, 1961, The Law of Treaties, OUP Oxford, pp 531–532) who concludes that such rights established by a treaty will remain in force even if the agreement is terminated by Britain's exit.

In law they are considered to be executed by the treaty and "have an existence independent of it; the termination cannot touch them". Their status will be guaranteed as a result of the "well-recognised principle of respect for acquired [vested] rights".

Nevertheless, the good faith of host countries cannot always be guaranteed. It cannot be assumed that British expats would necessarily enjoy a problem-free transition. Negotiators would have to protect their interests, as well as the needs of business, student and academic movements, and the tourist trade.

This notwithstanding, the greater proportion of immigration comes from non-EU countries, the largest group coming from India. Even from within the EU, though, some immigration is mandated by non-EU instruments, such as family reunification which accounts for 17 percent of UK totals.

Although the provisions are set out in Directive 2003/86/EC from which the UK has opted out, the EU is implementing a right recognised in the European Convention of Human Rights (ECHR), to which Britain is a party. In order to relieve itself of this obligation, Britain might have to reconsider its membership of the Council of Europe, which is the sponsoring body of the ECHR.

This illustrates the need to coordinate domestic and international policies, but there are limits even to this. Migration is by no means a creature of regulation, much less EU regulation. Greater forces trigger population movements and, to an extent, government intervention simply shapes and directs flows. 

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Solutions, therefore, may not lie in release from treaty obligations, or putting up barriers as suggested by the latest UKIP poster, but in reducing the impact of factors which give rise to immigration in the first place. These are the so-called "pull factors" and the more complex "push factors", comprising the "displacement events" which drive migrants from their homes.

In this, Britain can work with EU member states, and would continue to do so even after it has left the EU. In return, the EU might reasonably expect contributions towards joint measures. For instance, where the EU has brokered an agreement with Turkey for it to act as a "safe" country for the return of illegal immigrants, in exchange for visa-free entry of Turkish citizens, these arrangements might also benefit Britain. Thus British taxpayers might be asked to defray costs of migrants' shelters and border security in Turkey, in programmes initiated by the EU.

On the other hand, where movement controls are applied by national governments, there is always the risk of unintended consequences. For instance, "workers' remittances" sent to extended families back home are an important if unacknowledged source of development aid, involving significant cash transfers. In 2012 the total for the EU27 was €38.8bn. Almost three quarters (€28.4bn) went outside the EU.

Disrupting these transfers can cause instability and economic hardship, potentially requiring direct and more expensive intervention in terms of international aid and even military action. In some senses, worker mobility is a very precisely targeted form of aid, and one of the most cost-effective. Changes in arrangements need to be managed with care.

For Britain, though, there is little merit in the EU's common immigration policy. This stems from the European Council at Tampere in October 1999, which sought to address immigration in the context of political, human rights and development issues in countries and regions of origin and transit.

Around that time, it had been recognised that restrictive admission practices had reduced legal immigration to Europe, but had been accompanied by a sharp rise in the number of asylum seekers and of illegal immigrants, and by the growth of smuggling and trafficking.

In 2005, EU political leaders proclaimed the "Global Approach to Migration" as a response to the desperate attempts of immigrants to cross the EU's southern frontiers. This was then redefined in 2011 as the "Global Approach to Migration and Mobility", by which time there were an estimated 214 million international migrants worldwide and another 740 million internal migrants. There were 44 million forcibly displaced people and an estimated 50 million living and working abroad with irregular status.

In the period following Tampere, it has been generally recognised that the EU policy lacked bite, leading to multiple complaints, not least concerning the ability to deal with such issues as the Roma.  Overall, though, "little Europe" was quite simply not up to dealing with the scale of the problem.  

Given the global scope of the problem, there has thus been a tendency to move beyond the geographically-limited forum of the EU and look for global solutions, although outdated agreements such as the 1951 Convention on Refugees and the 1967 Protocol have proved inadequate for the task.

Nevertheless, it is at this level that we are beginning to see progress. The OECD, the ILO and the G20 have all taken active roles in the development of policy, with the ILO in particular working with the UN to produce the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which entered into force in July 2003. 

No EU Member State has signed or ratified this Convention, although the European Parliament and the European Economic and Social Committee (EESC) have strongly encouraged ratification by Member States, followed by the House of Lords (See p.39). Selective adoption could strengthen Britain's global position, and make it a serious player in global fora.

There, to assist the international community to provide "the framework for the formulation of a coherent, comprehensive and global response to migration issues", on 9 December, 2003 the Global Commission on International Migration was launched in Geneva by the UN Secretary-General and a number of governments. It was comprised of 19 Commissioners and began its activities on 1 January 2004, the core of which was to commission detailed research into the problems and potential solutions. Despite the importance, though, none of the Commissioners were British.

Then, in 2007, we saw the emergence of the Global Forum on Migration and Development, a UN initiative intended "to address the migration and development interconnections in practical and action-oriented ways". Currently, to augment this, there are suggestions that we need a World Migration Organisation analogous to the WTO, where global problems can be addressed in a fully-functional global forum.

And there lie the clues to the future management of immigration. The issues are not resolved solely (or at all) by erecting barriers and turning Britain into an inward-looking fortress. That simply creates a different set of problems. Rather, it is becoming increasingly evident that mass migration is a global problem and needs a global rather than the sub-regional perspective offered by the "little Europe" of the EU. 

As with other issues, Britain needs to be part of the global dialogue, working directly with international agencies such as the Geneva Migration Group and the International Organisation for Migration. We then need the freedom to take local action in support of the national interest, but integrated with global initiatives, which can only happen outside the EU.

This enables us to say that leaving the EU gives us something more important than imaginary and largely ineffective control over our borders. It gives us the opportunity to interact with the global community and address the root causes of the problems, something which the EU has so far failed to do. And it is at the global level that the UK belongs. That is where many of the problems will be solved. 

Crucially, in terms of perception, domestically and internationally, this also paints Britain as an outward-looking global power, rather than the inward-looking "little England" typified by UKIP. That alone is more likely to make leaving a reality, as acquiring a global reach will have a greater appeal to the wider constituency. And we will need the support of this constituency in any "in-out" referendum.

There, we must address the art of practical politics. UKIP is speaking to its own members, but thereby limiting its mass appeal. We need a different,. more imaginative perspective if we are ever going to broaden the appeal of the anti-EU movement and win that referendum.  

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