Extending Free Movement - One Big Muddle But No More Certainty

01/08/2017 08:43 BST | Updated 01/08/2017 08:43 BST
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In a move to provide businesses certainty over labour supply for the coming years Michael Gove has suggested that free movement will temporarily continue post Brexit. The Government is waking up to the fact that both the public and private sectors are yearning for certainty when it comes to planning their current and future recruitment strategy. It was no coincidence that the announcement was made the day following a meeting between the Government and top UK businesses.

Since then voices from the Cabinet have been confused at best. Amber Rudd stating that freedom of movement will end in March 2019. A day later Philip Hammond says that EU nationals will be free to work in UK post-Brexit only for Theresa May, this week, saying that freedom of movement will end in March 2019.

Confused? Just imagine how the businesses they are trying to reassure feel about this. Providing certainty surely looks different. The question is though whether it should really be this confusing. Not really, because both sides of the argument are correct, they simply talk about different things altogether.

Theresa May and Amber Rudd are talking about freedom of movement under EU law as set out under Directive 2004/38/EC. Not an immigration status as such but a set of rights all EU students, workers and family members have to set up home, work and study in any of the 28 EU countries guaranteed for life after five years residency. A set of rights currently enjoyed by the3million EU nationals in the UK. An EU obligation the UK has to honour until the UK exits the EU. Here both May and Rudd are correct, this can and will probably end on the day of Brexit.

Both Hammond and Gove speak about free movement in looser terms, free movement in name only but in reality a new immigration status where EU nationals can enter the UK for work, maybe even bring their family, without falling under the current third country visa restrictions. In contrast to EU freedom of movement though, this will not be for life but time limited. It might also not include cross-border portability of pension and exclude other social security elements currently protected by EU law.

Whatever the new arrangement is called and whatever it entails though it does not deliver on what the government is hoping to achieve: certainty for employers. A new form of free movement post Brexit might be a reprieve but it does not tackle the main issues causing uncertainty in the first place.

Firstly, businesses are already unsure over their current recruits, future recruitment and even about EU nationals they have employed since triggering Article 50. The government proposal for future rights of the 3.2 million EU nationals in the UK states that the cut-off date for the new 'settled status', and thus the right to remain and work in the UK indefinitely, will be at any point between March 2017, the date of triggering Article 50, and the day we exit the EU. Thus, any EU nationals employed since might lose the right to work when the newly proposed post Brexit 'free movement' runs out. With this being proposed for 2022 this could be in only four years time making any long term recruitment and training strategy impossible. Planning is only possible for seasonal workers and short term assignments.

Secondly, the lack of documentation to prove that EU nationals currently here have the right to work and remain indefinitely makes it very hard for businesses to distinguish between those who have been here before the yet unknown cut-off date and those who arrived post. Extending any form of free movement will only increase this problem. EU nationals will be unable to prove that they will be eligible to work in the UK indefinitely and with the Home Office using employers to play immigration enforcement both businesses and EU nationals feel no more certain.

Thus, extension of 'free movement' is not the solution. As so often modern German has a fitting word for what the government is doing: 'Verschlimmbessern', making a situation worse by trying to implement measures intended to improve the situation.

Instead the government must announce the cut-off date now. A cut-off date no earlier than the day EU freedom of movement ends. It is also paramount for the government to set up documentation system as soon as possible. Otherwise there will be no certainty, neither for businesses, nor for EU nationals seeking employment.