Professor Jo Shaw

The free movement of people played an important role in the EU referendum campaign and it has been widely discussed as an aspect of the future negotiation package ever since. From an EU law perspective, it is part of the package of ‘four freedoms’ that make up the single market: goods, services, capital and people.

The ‘right’ to free movement is not unlimited. There is a more or less unlimited right to enter another Member State and remain there for up to three months, without any formalities. It is possible, but quite tricky, for a Member State to ban an EU citizen from entering its territory. This right of entry enables EU citizens to look for a job and on the UK labour market they have to be treated exactly the same way as UK citizens. In addition, they can – provided they are self-sufficient, e.g. through work or private means – settle in the UK and bring other members of their family to live with them, even those who are not EU citizens themselves, with a minimum of formalities. Settling unless you have work or are self-employed is much harder, and EU citizens are mostly excluded from accessing out of work benefits that would make a longer period of job-seeking possible.

Read more: Beyond Brexit - Scottish passport plan could allow Scots to keep working and living in Europe

These points illustrate why quite a lot of people see EU citizens who take advantage of free movement rights as ‘lucky immigrants’. The relatively lightly regulated character of EU free movement contrasts starkly with the heavy regulation of immigration from non-EU countries. Unfortunately, there is a tendency in the UK for this perspective to work one way only. We think of those who arrive here as immigrants, but those who depart as ‘expats’.

When the UK leaves the EU, it is to be expected that free movement as we know it will come to an end. There is a lot of debate about how best to protect the rights of those (in the UK and elsewhere) who have already used their free movement rights. Many people are worried about their status. For the future, we can expect some system of immigration rules to be put in place instead of free movement. Immigration law in the UK is quite different to free movement law. As ‘free movers’ we have rights. Under immigration law, people are subject to a series of limited ‘permissions’ to be present in the UK, and to work.

Can Scotland adopt a different position, and perhaps preserve some aspects of free movement after Brexit? At first sight, this looks difficult as immigration, like citizenship, is a reserved power under the Scotland Acts. So changes would be needed within UK law, which also means there needs to be political will. In practice, because so much immigration control now takes place within the UK (e.g. by employers or landlords checking passports) rather than at the borders, it might be possible to set up some territorially specific arrangements for Scotland. As immigration control in the UK has become much more restrictive in the last twenty years, what could be done is to apply looser arrangements similar to those that used to apply to non-EU citizens back in the 1990s, or to design special new arrangements that apply to Scotland only. There are no legal obstacles to creating a separate type of national insurance number which give similar access to the Scottish labour market as EU citizens have at present, allowing them to compete for jobs on their merits.

Read more: Beyond Brexit - Scottish passport plan could allow Scots to keep working and living in Europe

A non-discrimination duty could be imposed on employers to protect the rights of EU citizens. After say, five years, an EU citizen who took advantage of this scheme could be free to work wherever she wants in the UK. Some have suggested this would be a little like having an internal passport, as used in some authoritarian states to stop people moving freely around the country. It is certainly less open and ‘free’ than our existing arrangements. But realistically the alternative in terms of labour migration as currently regulated is now very restrictive. In practice, immigrants to the UK cannot easily move jobs even in the same part of the country without getting fresh permission to work, until they have obtained indefinite leave to remain after five or more years here.

Read more: Beyond Brexit - Scottish passport plan could allow Scots to keep working and living in Europe

Separate immigration arrangements for different parts of countries have been tried in other countries, such as Canada, and the case for introducing them relates to the special conditions in parts of a country that do not apply elsewhere. Scotland, with its need for immigration to make up for falling birthrates, can point to this special aspect. We can also mention the evident political desire in Scotland on the part of a majority of the population to see continued UK participation in the EU, especially in its single market, which includes the free movement of people.

Jo Shaw is Salvesen Chair of European Institutions and Director of the Institute for Advanced Studies in the Humanities at Edinburgh University.