Norman Lamb has suggested that Britain could control immigration whilst remaining in the single market after Brexit via membership of the European Economic Area (EEA).
The Liberal Democrat MP said he was attracted to the case made by Stephen Kinnock in an article for Labour List, in which the Labour MP argued that the UK could use Article 112 and 113 of the EEA Agreement to manage the inward flow of EEA migrants.
‘The claim that we would simply have to accept unfettered freedom of movement does not seem to stand up to analysis’, said Lamb.
Article 112 allows for the unilateral suspension of any of the four freedoms ‘if serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist’ arise.
If the UK were to remain in the single market and notify the EEA Joint Committee that it intends to suspend freedom of movement, then it would ‘immediately enter into consultations’ with the Committee ‘with a view to finding a commonly acceptable solution’ – as laid out in Article 113.
Liechtenstein is the one single market member to have negotiated what is effectively a permanent opt-out to free movement using Article 112/113, potentially setting a precedent for the UK.
EEA citizens wishing to live in Liechtenstein must obtain a residence permit. The number of permits is set by the Liechtenstein government, with a yearly net increase. The current number is set at less than 100.
Obtaining a residence permit is not a requirement to work in Liechtenstein, and many people commute on a daily basis from neighbouring countries. There are also no restrictions preventing family members of permit holders from joining (they also have the right to work).
However, critics argue that the Liechtenstein agreement is closely linked to its tiny territory (160 km2) and high proportion of foreigners in its resident population, who make up around one third of the workforce. Christian Frommelt, Research Fellow at the Liechtenstein Institute, argues that Liechtenstein’s solution ‘emerged over time as a complex, tailor-made solution, institutionally embedded in the EEA. It can thus not be viewed as a precedent for the UK’.
Frommelt also points out that Liechtenstein’s authorities have to grant residence permits in a way that is not discriminatory and does not distort competition. ‘Hence, migration of EEA citizens cannot be designed according to economic and social needs,’ he says.
His comments were echoed by Liechtenstein’s Minister of Foreign Affairs and current EFTA President of the EEA Council, Aurelia Frick. She said that the EEA Council recognized Liechtenstein as a very small area of rural character with an unusually high percentage of non-national residents and employees, as well as its vital interest in maintaining its own national identity.
‘As a result, the EU and the EEA/EFTA states agreed to take into account the specific geographical situation of Liechtenstein when adopting Liechtenstein’s sectoral adaptation in the field of free movement of persons’, she says.
However, should the UK decide to use the Article 112 safeguard measures, the EEA Council’s decision would depend on the merits of the case put forward by the UK.
Dr. Richard North, whom Stephen Kinnock cites in his Red Letter article, points out that the initial shape of the Liechtenstein deal was negotiated in conjunction with the Swiss – who failed to ratify the EEA Agreement in a referendum.
‘Current Liechtenstein politicians are unlikely to have been privy to the initial thinking’, he says. ‘The views of Liechtenstein are, in any case, irrelevant. What matters is the case we put up, in respect of our own unique situation, in terms of satisfying the Article 112 criteria’.
North points out that the Commission, in a European Council Statement in February 2016 (Annex VI), conceded that the UK had sufficient grounds for Article 112 to be invoked. ‘That in itself provides powerful leverage’, he says.
‘We have more allies than would appear. Poland and some other recent accession countries are extremely disturbed by the loss of so many of their best-qualified, economically active citizens to the lure of emigration’, says North. ‘They would like people back; they cannot afford to be seen to be supporting the UK overtly, but would be content to see an Article 112 process succeed’.
Legal opinion is unsettled as to whether or not the government would have to trigger Article 127 of the EEA Agreement and give one year’s notice before leaving EEA.
This week MPs will debate amendments to the EU (withdrawal) Bill, some of which would force the government to consult parliament before leaving – or giving notice to leave – the single market. If the government is forced to give notice, in order to coincide with leaving the EU on March 29, 2019 (assuming that happens), it would have to do so in March 2018.
If the future of the Brexit talks remain uncertain at the beginning of next year, parliament may step in to steer the government towards single market membership. The question of whether or not a ‘soft Brexit’ can deliver on the promise of immigration controls may be a deciding factor for many MPs who feel compelled to carry out the wishes of Leave voters.