How do trade agreements affect domestic immigration policy?

Once the UK leaves the EU’s Single Market, the constraints placed on its immigration policy by EU membership will no longer apply. The Conservatives have signalled their desire for a UK-EU Free Trade Agreement (FTA), and an end to EU free movement of people. Meanwhile, Labour has said that in its proposed renegotiation with the EU, free movement would be “subject to negotiation,” but has not set out exactly what it would seek to negotiate on migration. Either way, it is likely that Brexit will entail changes to the UK’s existing immigration policy.

There have been some suggestions that any future UK-EU agreement will include comprehensive provisions on migration policy. However, this is less likely to be the case if the next Government pursues an FTA-style relationship with the EU. While comprehensive FTAs elsewhere contain minimal provisions on migration compared to EU Single Market membership. Consequently, unilateral immigration measures are likely to play a more significant role in determining the openness of the UK’s future immigration policy.

This blog compares the immigration provisions of the EU Single Market to three other international trade agreements: the North Atlantic Free Trade Agreement (NAFTA), which includes the US, Canada and Mexico; the Association of Southeast Asian Nations Economic Community (ASEAN); and the EU-Canada Comprehensive Free Trade Agreement (CETA).

Movement of people (right to visa-free entry, reside and work)

  • EU Single Market: Nationals of the EU, the European Economic Area (EEA) and Switzerland have the right to visa-free entry, to work, to study, and to reside for up to three months in any other contracting state. Beyond three months, residency rights are conditional on employment, being a student, or on “having sufficient resources not to become a burden on the host Member State’s social assistance system, and on them having sickness insurance.” At no point do migrants require a work visa and after five years of uninterrupted legal residence in another contracting state, migrants gain the right to permanent residence in said state. Derogations exist for non-EU EEA states (informally referred to as the “emergency brake”) to unilaterally depart from freedom of movement rights if “serious economic, societal or environmental difficulties of a sectoral or regional nature liable to persist are arising,” though these have not been used. Separately, further provisions exist only for Liechtenstein, which have since allowed it to place quantitative limits on migration.
  • NAFTA: Generally, citizens of NAFTA countries require visas to enter each other’s countries. Streamlined visas exist for business and investor travellers entering for reasons other than cross-border service provision (GATS Mode 4). NAFTA also allows streamlined visas for certain professionals from contracting countries (generally those with high-levels of education), conditional on having a work contract.
  • ASEAN: ASEAN citizens have the right to visa-free entry and travel within other contracting countries for 14 days, increasing to 30 days between some members. As well as the GATS Mode 4 framework for the provisions of cross border services (discussed below), there are also provisions which streamline business and investor movement unrelated to service provision. These provisions are less expansive and cover fewer professionals than those in NAFTA.
  • CETA: Neither Canadian nor EU citizens travelling to each other’s territories require a visa for short term stays, subject to some basic requirements. Unlike NAFTA or ASEAN, the agreement does not contain provisions for temporary migration unrelated to the migration of persons for cross-border trade (GATS Mode 4).

Right to temporary migration for cross-border service provision (GATS Mode 4)

The WTO General Agreement on Trade in Services (GATS) established a framework for the liberalisation of cross-border service trade. One of the modes of cross-border service provision (GATS Mode 4) relates to the presence of a person to deliver a service within a territory of a contracting member. This typically includes persons who are service suppliers, such as a lawyer providing cross-border legal counsel, and employees of a service supplier present in a contracting state. Provisions exist within NAFTA, CETA and ASEAN to streamline visa processes for these migrants, as well as certain other business personnel involved in the provision of cross-border services.

  • EU Single Market: EU freedom of movement rights include provision of one’s labour and services in other EU member states, subject to domestic legislation. This far exceeds Mode 4 rights on temporary migration for service providers.
  • NAFTA: Provisions exist for simpler visa processes, to streamline temporary migration of business visitors, treaty traders, intra-company transfers and investors and certain professionals engaged in cross-border service provision.
  • ASEAN: Provisions exist for simpler visa processes, to streamline the temporary migration of business visitors, intra-corporate transferees and contractual service suppliers.
  • CETA: Provisions exist for simpler visa processes, to streamline the temporary migration of key business personal, contractual service suppliers, independent professionals, intra-company transfers and short-term business visitors

Mutual recognition of professional qualifications

The ability to practice one’s profession in another country is a significant factor in deciding whether to migrate to that country. Differences in the requirements of national regulators in recognising qualifications, such as licenses to practice medicine, can pose significant barriers to the migration of highly skilled individuals. In light of this, some trade agreements establish frameworks for the mutual recognition of professional qualifications, taking into account professional education, experience and other certification to enable migrants to work abroad.

  • EU Single Market: The European Commission has taken what has been described as an “active” approach to the mutual recognition of professional qualifications, dating back to the 1958 Treaty of Rome. The mutual recognition of professional qualification in relevant sectors (e.g. certification needed to practice dentistry in another contracting country) between citizens of different member states are covered by a number of EU Directives and enforced by a range of compliance mechanisms.
  • NAFTA: Unlike in the EU Single Market, free trade agreements like NAFTA do not typically agree mutual recognition of professional qualifications. Instead, they encourage the relevant professional bodies in each contracting jurisdiction to reach their own agreements. Under NAFTA, agreements have been reached for engineering, legal services, public accountancy consulting and architecture, albeit not all apply in every jurisdiction of each contracting state.
  • ASEAN: Similarly, the ASEAN FTA established a similar framework for the mutual recognition of professional qualifications as NAFTA, leaving the negotiation of such agreements to the relevant professional bodies themselves. Such agreements are in place for 6 sectors and frameworks exist in another 2, fewer than in NAFTA, and some states have obfuscated the benefits of these agreements by including requirements which are difficult to meet in practice.
  • CETA: Provisions establish a framework for EU member state regulatory authorities and their Canadian counterparts to jointly develop recommendations to be approved by the CETA Joint Committee. The Committee met in April to discuss such an agreement for architects, but no agreements have yet been reached. This is primarily because CETA is a very recent FTA; more agreements are expected to develop over time.

 Social rights (access to welfare, housing, healthcare etc.)

  • EU Single Market: EEA (and Swiss) citizens with the right to reside in another EEA state (or Switzerland) are generally eligible for welfare on the same terms as the country’s nationals (e.g. qualifying period of employment before being covered by unemployment insurance). Typically, the country responsible for an EEA (or Swiss) citizen’s social security is also responsible for their healthcare.
  • Other trade agreements do not grant immigrants access to social rights.

Rights derived by family members

  • EU Single Market: Family members of EEA (and Swiss) citizens with the ‘right to reside’ have the right to live and work in the country their family member lives in, irrespective of their nationality. Family members also accumulate permanent residency rights in the contracting country they are residing in, and their children can also be educated there.
  • NAFTA: Spouses and children of NAFTA visa holders under the age of 21 may be eligible for temporary residence rights. This may also grant them the right to study but not to work.
  • ASEAN: None.
  • CETA: Spouses and children of professionals are granted temporary residency rights.

 

How can unilateral policy measures outside of trade deals impact immigration?

At the end of the transition period, the UK will regain control of its immigration policy for EU citizens, unless agreed otherwise. The openness of the UK’s immigration policy thereafter will mostly depend on unilateral policy measures, rather than on trade agreements. The main unilateral measures that impact immigration include:

  • Visa and non-visa entry: The ease of access to and generosity of visa and non-visa entry, particularly compared to competitors, is likely to affect migration flows of workers and business travellers. These groups can be further subdivided and offered more favourable terms, depending on the Government’s priorities. A policy of offering international students access to post-study work visas has been implemented in Canada, for instance, which has improved the country’s attractiveness to this group.
  • Recognition of professional qualifications: The recognition of foreign professional qualifications, and the barriers to attaining this recognition, will impact the migration of workers with these qualifications. Existing processes for non-EEA nurses, for instance, often require additional UK-specific training courses, which deter migrants with these qualifications from coming to the UK. The recognition of professional qualifications is particularly important for migrants seeking work in highly regulated areas, such as medicine and architecture.
  • Family member rights: The ease with which migrants can bring their families with them and the right they derive, be it to attend schools, to work or access social provisions, are also likely to affect migration flows.
  • Path to citizenship or permanent residence: Whether the immigration system provides a route towards improved rights, either via permanent residency rights or eligibility for citizenship will also have an impact on migration flows.
  • International perception: If the UK is viewed as a “good” destination by prospective migrants, this will likely increase migration. Positive perceptions of the UK might be driven by factors such as attitudes towards migrants and economic performance. Despite changes in US immigration law being restricted to certain nationals, the first two years of the Trump administration coincided with a 12% decrease in the number of permanent residency visas issues, with declining rates for some nationalities not affected by the ban.

 

What should the Government take from this?  

It is still unclear exactly what Brexit might mean for the UK’s immigration policy. However, immigration policy is unlikely to be significantly constrained by FTAs with either the EU or third countries – certainly not to the same extent it is by EU membership. Examination of existing FTAs demonstrates how limited migration provisions in these agreements are. The next Government should be aware that the openness of its immigration policy is likely to be determined primarily by the unilateral decisions it makes, unless it chooses to agree otherwise.

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