David Cameron has experienced enormous pressure to take a tough stance on immigration an EEA immigration issues of late. On the one side he has the simplistic and sometimes verging-on-racist “coming over here, taking our jobs” brigade. And the importance of their voice is vastly amplified by the defection of Tory MPs and voters to UKip.
From the other side he has the gentler and more thoughtful voices of elder statesmen from his own party as well as those of economists and business pointing out that the measures for which the crowd bays would be economically damaging to the UK.
The Conservatives have stated that they will try to curb EEA migration if re-elected (it is unclear how this would be lawful without withdrawing form the EU, as it violates a fundamental principle of the Union).
Now Angela Merkel has jumped in. She warns him that attempting to limit immigration from within the EU would amount to “a point of no return” for the UK- Der Speigel has reported that for the first time Merkel has become increasingly worried about a British exit from the EU (dubbed “Brexit”). It is thought that Germany would cease its efforts to keep the UK within the Union if any effort was made to impose such a cap.
Cameron has stated that, if re-elected in May, he will hold an in-or-out referendum in 2017. He wishes to remain in the UK and knows it is best for the UK, but will sacrifice that benefit for his own and his party’s political gain.
Boris Johnson, Mayor of London suggested the idea. Now No. 10 is letting it be believed that it is considering a cap on immigration to the UK from the EEA.
It is hard to see how such a proposed cap could be consistent with the central treaty commitment of free movement [Ed- immigration barrister says a simple overall cap would not be lawful]. Whilst some other European nations are hearing similar anti-Euro-immigration rhetoric from their politicians, the promises made are different in kind.
In Germany, for example, there is talk about limiting the period for which immigrants can stay whilst unemployed (possibly through careful construction of the Treaty concept of exercise of treaty rights). In France there is talk of cracking down on “abus”of social security benefits (the European laws on benefits are very much more flexible than those on free movement).
This is more than just a difference of opinion. Imposing a cap in the way suggested would require a change to the Treaty and this is impossible without unanimity. French PM has stated unequivocally that he would not support such a change. And others may express the same view (if asked).
Ourtgoing European Commission president José Manuel Barroso stated an arbitrary cap on immigration into Britain will never be accepted by the European Union… it would give rise to first and second class citizens within the EU and would not be agreed by member states.
So, what are the Torys on about? Did they forget about the Treaty obligation? Do they expect the rest of Europe to follow its iead? Do they need to consult their own immigration lawyers, or is this just another “great deceit”, a cheap ploy to win naive political support?
The National Audit Office today publishes a report addressing the highly divisive issue of foreign criminals and the cost to the nation (and limited effect) of the Home Office’s attempts to deal with them. It reports: The Home Office has made slower progress than expected in managing foreign national offenders, despite increased resources and tougher powers.
The NAO is the independent Parliamentary body responsible for auditing government agencies (including central government)- it carries out Value for Money audit into the administration of public policy. Its report Managing and Removing Foreign National Offenders, notes: 17% of the foreign criminals living in the community have absconded (including 58 “high harm” individuals); in 2014/15 management and removal of foreign national offenders has averaged public bodies around £70,000 per offender; it takes 319 days to deport offenders; and all of this despite an around 800% increase in Home Office staff working on foreign national offenders.
Amyas Morse, of the NAO, whilst recognising the difficulty of the problems (including cunning UK immigration barristers determined to prevent disruption and effective punishment of offender families), commented: too little progress has been made, despite the increased resources and effort devoted to this problem.
In an effort to deflect criticism and attack another favourite target, Immigration and Security Minister James Brokenshire said: The countless appeals and re-appeals lodged by criminals attempting to cheat the system cost us all money and are an affront to British Justice. So, once again, it is the fault of immigration lawyers!
Expect more jubilant response from the anti immigration lobby today- including those that are responsible for the failings identified in the report (well, its so much more agreeable to point the finger at your enemies than to accept valid criticism).
European Union law facilitates the free movement of its citizens within its borders, allowing European Treaty rights to be exercised anywhere in that area. Being no great fan of Europe, foreigners, or of free movement into UK borders, UK governments have not always been keen to play the Euro game.
Consequently, UK domestic law intended to give effect to these European principles has tended to be mean and minimalistic; draftspersons have strained the meaning of words and principles almost to breaking point in order to minimise the number of foreigners allowed to this Green and Pleasant Land. (And they accuse immigration barristers of being devious and cunning!)
Surinder Singh – EU rights extended to cover family members of British citizens
A peculiar result was that, whilst citizens from other EU states, working in the UK, could (under EU law) bring their 3rd country spouses to the UK, British citizens could not do the same. The argument was a technical one to do with construction of the words used in the EU Treaty (rather than its spirit or intention). It was a mean and silly point and the UK was taken to the EU Court of Justice over it and then forced to change the Regulations.
Following the judgement in Surinder Singh, the UK again made minimal changes, declining to extend the principle to give UK citizens the full rights available to non-UK Europeans working in the UK.
One result was this: under EU law, a worker who wanted to bring her unmarried 3rd-country partner to live with her in the UK could do so- as long as that worker was not British! If she was British, argued the Home Office, she was in the UK under UK law, not EU law (and I can do what I want with my own subjects, so there!).
Some British citizens felt this was an unfair (and bizarre) situation.
But the Home Office stuck to its guns.
Once again, the matter has come before the courts.
Kamila Santos Campelo Cain – Surinder principles applied to extended family
In a determination promulgated on 17-Oct-14 (unreported at the time of writing), the Upper Tribunal (Immigration and Asylum Chamber), Mr Haddon-Cave, J, and Mr Kopieczek considered the question whether an unmarried partner is entitled to the benefit of the decision of Surinder Singh  EUECJ C-370/90 … and the extent to which a third country national family member of such a British citizen is entitled to reside in the UK under EC law. (Kamila Santos Campelo Cain v Secretary of State for the Home Department IA/40868/2013).
The first instance judge had allowed an appeal against the Home Office’s decision to refuse a residence card to the Brazilian national wife of a British citizen returning worker. There had been no dispute that the relationship was genuine and enduring or that the family (including the couple’s 2 children) had lived together in other EU state’s whilst the partner had worked there.
Instead of accepting the judgement and issuing the card, the Home Office appealed on the basis that the EEA Regulations (i.e. the UK law) didn’t cover extended families.
Actually, as the Upper Tier noted, the judge had “manifestly not made this mistake”- in fact, noting the Regulations didn’t cover the situation, he had applied the Directive directly (i.e. European law).
Although the Home Office’s Grounds of Appeal were flawed, they were granted permission to appeal; after noting the same the tribunal went on to consider the wider merits of the case.
Immigration barristers Jan Doerfel and Jeremy Chipperfield argued that the effect of the Surinder Singh judgement was that British citizens exercising treaty rights should, on their return to the UK, be treated no less favourably than any other European nationals- and this means the EU rights cover extended family as it does with other EU nationals.
The effect of the domestic Regulations was unfairly to discriminate against British nationals.
The Upper Tribunal noted: notwithstanding that Surinder Singh… concerns family members as defined by the Directive, we cannot see any distinction in principle between [it] and the case of the appellant before us. In our judgement, the exercise of the right of free movement by an EEA national is as likely to be adversely affected by the inability of a durable partner to reside with the EEA national in the host State, as it would be were his or her spouse to be denied residence status. … we do consider that the Surinder Singh principle does extend to persons such as the appellant who are in a durable relationship…
I will report the Home Office response (if any) in this blog.
Boris enters the ring for the third time, carrying a small red cape. He stares Cameron in they eye, taunting him with the cape and goading him to react. Under the cloth, he grips his weapon- the immigration debate.
Weakened by the humiliation of last week’s by-elections and the prospect of more of the same from Rochester on November 20th, the Tory leadership was already hurting. Then, still bruised from the UKip defections, and amidst dissatisfied murmuring from his once loyal audience, David Cameron has had to endure a vicious, barbed attack from behind- from those whom he might have hoped he could trust.
Despite Boris’ faintly ridiculous presentation (that well-crafted, charismatic Façade) this is a serious matter and London’s Mayor has mortal intent. Last week he told us (via David Marr) that the Tory manifesto pledge to cut immigration by 100,000 was a “great deception”. Now he he informs us via The Telegraph that Cameron’s UK immigration system is “out of control” and that Britain has become a “magnet for the hordes at Calais”.
With a flourish, he shows his superiority over his poor dumb opponent and reveals the simplicity of the dilemma it faces:- We can get our traditional Tory voters back, he says, if we just impose quotas for EU migration. Olé!
[Immigration barrister note: Yea, but: there is no legal way, within the EU, to impose quotas on community citizens entering the UK].
The practicalities are unimportant. Because politics is about getting power and power is about getting votes, and votes can be got by the flamboyant actions, and overblown promises of larger-than-life personalities. By the time the lies and consequences are revealed- well, its too late. The careers of the more thoughtful (and principled?) discussants will lie broken and defeated, alongside the promises of the moment.
Whilst there is nothing surprising here, what is interesting is the marked increase in tempo- a dual attempt to stir the crowd generally into a frenzy of immigration hatred, and Tory Supporters in particular, into intolerable feelings of discontent with their current leadership. One thing is surely clear- Boris smells blood, and senses a leadership competition coming soon.
Love and Marriage; Horse and Carriage; “Immigrant” and “Illegal”; “Asylum-seeker” and “failed”; Politicians and unprincipled, power-hungry egotists.
Buoyed up by last week’s by-election victory and forecasts of another in November, Nigel Farage has named his price for UKip’s support of a minority Tory Government: an in-out Euro Referendum before August 2015. If this all sounds “a bit previous”, it is worth noting that two weekend polls put UKip at having 25% and 15% of nationwide electoral support. So what does all this mean to the existing party political landscape? Quite a lot. For the Tory leadership the pressure is really on to move to to a UKipian stance on Europe and immigration generally. The party has lost supporters- but there is time to win them back before the May election if direction is changed on these key areas. But a shift now would look like exactly what it is- giving in on a point of principle; just waiting, on the other hand, could be fatal for the current leadership if they lose in November. Oh, and I have to mention Boris Johnson in this context- his comments on the Andrew Marr Show will increase David Cameron’s discomfort (Tory manifesto pledge on cutting immigration was a great deception). For the Tories generally the fear is that the significant anti-Europe and anti immigration sector of their electorate will continue to migrate to UKip, damaging their prospects at the next general election in May 2015. They are stuck with a leader who has been reluctant to commit to a firm position on Europe and many in their leadership who see the social and economic dangers of withdrawal from the EU. They are faced with the choice of two ignominies: being seen to back down to UKip’s demands- many still see it as an upstart and caving in would be a humiliation; or sacrificing their leadership, which would have the same effect but could be painted as something different- a pre-existing opinion amongst the party, independent of UKip’s demands and successes. Labour too has lost some support to UKip, though not so much as the Tories. The impact here will depend on what happens to the bulk of the anti vote- will UKip split the right and damage Tory election prospects to Labour’s advantage? Or will an alliance or a deal arise between those others? Labour’s response will depend on the direction taken by the Torys and UKip. If the anti-vote was in any significant way to split the right, Labour could benefit from presenting the only real alternative. If the next election turns into an anti-immigration fashion parade… well who knows? For UKip of course, things couldn’t be going any better. They’ll drink to that.