Welcome to Britain: Fixing Our Broken Immigration System

by Colin Yeo;

  In 2009, the small anti-EU party adjusted its electoral strategy, consciously shifting its target electorate from middle-class Conservative voters to working-class Labour voters. Immigration was the key issue used to achieve this, and it worked, with UKIP’s position in opinion polls shooting up.12 In the local elections in 2013, UKIP increased its number of local councillors from four to 147 and its vote share increased to 23 per cent in the wards in which it stood. Then, in 2014, UKIP effectively ‘won’ the European parliamentary elections by coming in as the biggest party in the UK and gaining twenty-four MEPs. Two Conservative MPs, Douglas Carswell and the aptly named Mark Reckless, defected to UKIP later that year. UKIP had put immigration from the EU at the front and centre of its campaigns, with its political messaging presenting EU citizens as a source of crime and a pressure on housing, benefits, schools and the National Health Service.

  Cameron responded. At the start of 2013, he made his famous Bloomberg speech, committing to a referendum on UK membership of the EU. Immigration was not mentioned in that speech, which was presented as a high-level and principled critique of the direction of travel of the European Union.13 Just days earlier, though, Cameron had told the BBC’s Andrew Marr that it should be ‘harder for people to come and live in Britain and claim benefits’. The Telegraph splashed this as: ‘David Cameron: we will keep out EU benefit tourists’.14 It came straight from the Peter Lilley playbook.

  On 1 January 2014, UK controls on the entry of Bulgarian and Romanian workers expired. Dire warnings were made by Eurosceptics and UKIP, with Nigel Farage predicting 5,000 Bulgarians and Romanians would arrive ‘each week, every week’ for years to come. ‘Benefits Britain here we come! Fears as migrant flood begins’, ran the headline in the Daily Express on the fateful day of expiry itself.15 In reality, there was no surge in entries at all, though this did not matter. Later that year, Cameron talked of ‘addressing the magnetic pull of Britain’s benefits system’.16 The Conservative Party manifesto for the 2015 general election declared, ‘We will insist that EU migrants who want to claim tax credits and child benefit must live here and contribute to our country for a minimum of four years.’ And later that year, in a speech announcing the formal start of negotiations with the EU, Cameron added a fourth challenge to the earlier Bloomberg three: immigration within the EU. ‘Countries need greater controls to manage the pressures of people coming in,’ he said. ‘We do need some additional measures to address wider abuses of the right to free movement within Europe and to reduce the very high flow of people coming to Britain from all across Europe.’17 The central plank of Cameron’s renegotiation effort in 2015 and 2016 was a curb on the rights of EU citizens to claim benefits in Britain. ‘We’ll halt EU dole tourists’, ran a headline in The Sun in early 2016. ‘The Prime Minister’s very strong on this one,’ Work and Pensions Secretary Iain Duncan Smith told the paper. ‘People shouldn’t use the free movement rules just to travel around looking for the best benefit that they can get.’18

  Having identified this supposed problem, the government now needed to show that it was doing something about it. Ministers and civil servants rooted around for ways to limit and restrict ‘free’ movement and came up with a number of different schemes.

  SOMETHING MUST BE DONE

  In Peter Lilley’s time, the new myth of the European benefit tourist was used to justify the introduction of the ‘habitual residence test’ before welfare benefits could be claimed. Lilley claimed that the test would deny benefits only to those who were ‘strangers to this country’. But that was not how it worked out. EU law meant that any test had to be applied equally to EU and British citizens. Thus, over 20 per cent of those refused benefits under the test were British citizens returning from abroad, often after a relatively short stay or period of work in a European country.19 This new test denied benefits to any person not resident in the UK for the preceding six months. Been travelling on a gap year and just returned home to look for work? Been abroad caring for an elderly relative? Been living overseas with a spouse or partner and need to return home because the relationship broke down? Been working abroad, Auf Wiedersehen, Pet-style, because work was hard to find at home? All of these scenarios ended with ineligibility for welfare benefits on return to the UK. As well as finding someone other than single mothers to blame for Britain’s supposed ills, Lilley had also implied that benefits in the United Kingdom were so generous that citizens of other countries wanted to move here to claim them. It was starting to look as if the blame cast at immigrants was in fact cover for attacking the welfare entitlements of the British. The parallels with Cameron-era austerity are obvious.

  Following the model established by Lilley, the Cameron government introduced a series of new regulations intended to limit and restrict EU law rights. It is possible that some ministers believed in the migrant bogeyman of their own invention, but the primary purpose of the reforms was political. Election adviser Lynton Crosby was reported by the Mail on Sunday to have given orders that the Conservatives ‘must produce “a new policy to curb immigrants and benefits” every week’.20 Presumably a policy to curb immigrants’ access to benefits was even better.

  A total of seven amendments were made to the key regulations in the ten years from 2000 to 2010, and most of these were unusually concise in nature. In contrast, there were nine sets of amendments in the five years from 2011 to 2016, and some of those were very wordy indeed. There were three separate sets of amendments made in 2014 alone. In common with other immigration laws, the previously easy-to-use rules quickly became complex and obscure. To be fair, some of the changes were mandated by judgments from the Court of Justice of the European Union and reflected genuine changes or clarifications in EU law. However, the majority were attempts to restrict access to benefits or residence rights. The definition of ‘jobseeker’ was repeatedly tightened, for example, as was the definition of ‘self-sufficient’. Rights of appeal were restricted, so many of those relying on EU law were unable to challenge even incorrect refusals. New restrictions were placed on the entry of family members of British citizens returning to the UK from other EU countries. New powers to investigate suspected fraud or the alleged abuse of rights were inserted, despite an absence of evidence that this was a genuine problem or any evidence that existing powers were insufficient in some way.

  In parallel with these measures, the government also sought new, more obstructive interpretations of existing law. There had always been a requirement under EU law for students or self-sufficient people to possess ‘comprehensive sickness insurance’, in order to benefit from free movement rights in countries other than their own for example. This made sense in most European countries, where health services are based on the insurance principle (i.e. you pay up front and the insurance company will pay out later). In the United Kingdom, however, the National Health Service is free at the point of delivery and there is no direct insurance element to it. One of the fundamental principles of the EU is reciprocity, and just like British citizens travelling to EU countries were entitled to free healthcare, so too were EU citizens travelling to the UK.

  Since joining the EEC in 1973, the United Kingdom had never expected students and the self-sufficient to buy health insurance; the access to the NHS to which they were entitled was considered enough. In 2011, though, some bright spark at the Home Office decided to change that policy. No new law or regulation was introduced, but it was decided, as a matter of policy, that students and the self-sufficient would no longer be considered as properly and lawfully resident in the UK unless they had private health insurance or a European health insurance card. This must have seemed a wheeze at the time, as the resulting lack of residency for so many was also used to refuse welfare benefits to an increasing number of European citizens. In an important precedent case, the UK courts sided with the Home Office and denied benefits to a woman caught out by the new approach.21

  The new interpretation had opened a can of worms, though. Hundreds of thousands of EU citizens were l
iving in the UK without claiming benefits but also without private health insurance. After the shock Brexit referendum result, many started applying for formal residence documents and the Home Office turned them down because of this new mandatory insurance policy, causing growing anger and even panic. It had been easy to announce the new approach, but it somehow proved impossible to climb down from it again. A flood of articles from journalists across the political spectrum condemned its brutality and the reputation of the Home Office plumbed new depths.

  New bureaucratic obstacles were also erected in the paths of EU citizens seeking to make use of their free movement rights. From early 2014, whether or not an EU citizen was considered a genuine worker had started to be measured against the ‘Minimum Earnings Threshold’, otherwise known as the level from which National Insurance contributions have to be paid.22 Yet, there was no legal basis for this in EU law and it particularly discriminated against part-time workers. Perhaps the most infamous hurdle was a new form, to be used to apply for proof of permanent residence, that was eighty-five pages long. This was introduced early in 2015 and it was more than double the length of the previous version. The form proved to be highly controversial after the Brexit referendum, when large numbers of EU citizens started to seek some security in the shape of residence documents and found that they were faced with such absurdly long paperwork. Worse still was to come when, in 2017, use of the previously optional form was made mandatory for the first time. The government also fought (and lost) a series of legal cases to prevent EU workers who went on maternity leave from being able to rely on their EU right of residence.23 In her study Unity in Adversity: EU Citizenship, Social Justice and the Cautionary Tale of the EU, Charlotte O’Brien details myriad ways in which ‘street level bureaucrats’ at the Home Office, at the Department for Work and Pensions and in local authorities created and followed processes seemingly designed to make it as difficult as possible for EU citizens to rely on their EU law rights.24

  Finally, the Home Office led an active crackdown on EU citizens who were perceived to be undesirable because of their lifestyle or poverty. Less and less serious criminal offences were used to justify deportation. Local authorities, homelessness charities and community groups were recruited to report the location of suspected homeless EU migrants, who were then visited by Home Office enforcement vans, detained and deported.25 The number of EU citizens in immigration detention shot up, rising twentyfold from just over 1,000 per year in 2010 to over 20,000 in 2019.26

  PAYING THE PRICE

  There was never any proof that EU citizens came to the UK to claim benefits as Peter Lilley claimed. Not in 1994. Not in 2015. As Daniel Korski, Cameron’s close adviser, later admitted, the whole notion of benefit tourism was a myth:

  To be honest, we failed to find any evidence of communities under pressure that would satisfy the European Commission. At one point we even asked the help of Andrew Green at MigrationWatch, an organisation that has been critical of migration. But all he could provide was an article in the Daily Telegraph about a hospital maternity ward in Corby. There was no hard evidence.27

  On the contrary, all the evidence on immigration suggests that people move to another country for work, not indolence. It is incontrovertible that, collectively, EU citizens as a group pay more in taxes than they claim in benefits.28 Lilley may or may not have known that in 1994 but Cameron must surely have known it by 2015. Cameron used EU citizens as political punchbags to keep the right of his own party on board and to position his party as a whole against Labour. And it worked on those terms. The Conservative Party stayed united even in coalition with the Liberal Democrats and went on to win the 2015 election. But it all came crashing down on Cameron the next year when the referendum result was announced on 24 June 2016.

  Cameron’s problem in the referendum was that, after years of marching the public to the top of the Eurosceptic hill, he then needed them to march back down again. In his Bloomberg speech in 2013, Cameron had said that the choice would be ‘between leaving or being part of a new settlement’. And in his Chatham House speech in 2015, in which he had set out his key requirements for the renegotiation of the UK’s EU membership, he went as far as to say that if his demands were not met, ‘then we will have to think again about whether this European Union is right for us’. With the growth of immigration as a domestic political issue, the ability to impose some sort of limit on free movement would become a major focus of renegotiation.

  The self-imposed short time frame of just one year for the negotiations, combined with Cameron’s distance from other European leaders, meant that serious and ambitious reform would be impossible, though. The renegotiation and referendum project had been envisaged and sold as a project of changing the direction of the European Union. Once it began in earnest, it soon degenerated into a desperate search for a means to limit the numbers of EU citizens moving to the United Kingdom. The imposition of quotas or an ‘emergency brake’ permitting the suspension of free movement rules were floated as ideas but were fundamentally incompatible with the principles and treaties of the European Union. By the end of 2014, Cameron and his negotiators had settled on limits to welfare benefits for EU citizens migrating to the UK as the best they could hope for.29 Rather than direct limits being imposed, the supposed incentives (or ‘pull’ factors) for moving to the UK would be addressed.

  This small win proved to be Cameron’s trophy achievement in the pre-referendum renegotiations. An emergency brake was agreed, limiting the access of EU workers to non-contributory in-work benefits for seven years. It was, however, woefully insufficient to win the referendum. Korski later wrote: ‘Like many of our victories in the EU, it was too complex to explain to ordinary voters.’30 The Remain camp did not even try. Having argued for years that the EU was mismanaged, failing and bad for Britain in its current form, Cameron in effect jettisoned his own deal and barely mentioned it during the campaign. He was arguing to remain in an essentially unreformed EU that he had previously argued Britain should leave. After years of the government denigrating EU jobseekers and low-paid workers, the public had come to believe that benefits tourism was a genuine problem. The same public did not believe that Cameron’s renegotiation would do anything to solve the problem. It was a classic case of being hoist by one’s own petard.

  So, the changes to the benefits rules had no discernible impact on the imaginary problem of benefit tourism and, in political terms, they failed spectacularly. They were not without consequence for some EU citizens, though.

  The measures had a real impact on a small number of Europeans, depriving them of welfare benefits when they were working parttime, were low-paid, between jobs, sick or pregnant. This could be taken to show that benefits tourism was real, albeit very limited in scope. The problem is, there was no evidence that these people had come to the UK specifically to claim benefits or that they had in any way been attracted to the country by its welfare regime. Those affected had come to work, some had fallen on hard times and some had been resident for many years, as academic and EU law expert Charlotte O’Brien found in her research.31 Mariella was Belgian, had been resident in the UK for over fifty-five years and had worked for most of those. However, she found herself denied housing benefit at the age of eighty-five. Elsa had lived in the UK for over fourteen years, had a long but complex work history and had two school-age children born in the UK, but she was refused homelessness assistance. Irina had worked in the UK for over six years including two short breaks but was refused income support when she needed it. All these decisions were eventually overturned on appeal because they were wrong and inconsistent with EU law, but Mariella, Elsa, Irina and others like them were put through needless poverty and awful stress because of the initial wrong decisions. All the reforms achieved was to remove the safety net for genuine residents and workers. And all for nothing: the changes had no discernible effect on net migration.

  Brexit was the outcome of Cameron’s spectacular miscalculations. As a result of Brexit and
the decisions taken by Cameron’s successors, all EU citizens in the UK have found that they must apply to remain in their homes. Meanwhile, British citizens have lost their rights of free movement in the EU.

  The right of an EU citizen to live in the UK came from EU law. If EU law was no longer to apply after Brexit, it followed as a matter of law that EU citizens would have no legal right to live here. The official Vote Leave campaign had rather dishonestly sidestepped this inconvenient truth by asserting, as if it were fact, ‘There will be no change for EU citizens already lawfully resident in the UK’ and ‘EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present.’32 Vote Leave was not campaigning for office in a general election and was never an incoming government-in-waiting, so this assertion had no real force.

  When Theresa May took over as Prime Minister in 2016, her government adopted a very different approach. Instead of an automatic grant of status, every EU citizen would now have to apply for new immigration status or else become unlawfully resident once the deadline had expired. The application would either lead to five years of permission to stay or, if the applicant could prove five years of previous residence, it would lead straight to settlement. Proving five years of residence would require the algorithmic cross-checking of selected government databases or the submission of physical documents as proof. Initially, a fee of £65 was to be charged to EU citizens who had been permitted no vote on their future and now had to make an application to stay in their own homes, but this was belatedly dropped in the first weeks of the application process. It was very much not the automatic process that had been promised – although it is fair to say that it was a considerable improvement on the normal nightmarish immigration application process for non-EU nationals.