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11 Nov 2016



Amid the frenzied campaigns, and chaotic aftermath, of the UK’s EU referendum, we’ve seen a trend emerge for ‘post-truth politics.’ In no area has this been more pronounced than in discussion of free movement.

The leaders of the Remain campaign were victims of their own successful project of misdirection. It wasn’t a Leave campaigner who published a piece headed ‘Free movement within Europe needs to be less free’ in the Financial Times – it was the Prime Minister. It wasn’t a Leave campaigner who published a piece describing the ‘magnetic pull of Britain’s benefit system’ in The Telegraph – it was the Prime Minister. It wasn’t UKIP, Vote Leave, or Leave.EU that issued press releases mentioning ‘rogue EU benefit claims’, the need for ‘tough new rules’ to stop migrants taking ‘advantage of the British benefits system’, or the need to make ‘clear that abuse and clear exploitation of the UK’s welfare system will not be tolerated.’ It was the government. This is striking rhetoric.

An employer could not announce a wish to pander to its customers’ discriminatory preferences. Yet the government engaged in a programme of declaratory discrimination in announcing its intention to reduce immigration from the EU, in which declarations took the form not only of government press releases but of actual laws, so creating what might be termed declaratory obstacles to movement.

Other parties joined the chorus – former-MEP Nick Clegg, then leader of the Liberal Democrats was reported to set out ‘plans to curb benefits to EU migrants’, while Labour’s Yvette Cooper claimed that the ‘scale and pace’ of EU migration made it a problem, and Labour’s Rachel Reeves set out proposals to exclude EU migrants from out-of-work benefits for two years, cutting in-work tax credits to EU migrants and ending the “absurdity” of exporting child benefits.

This kind of posturing, creating an odd, cross-bench consensus, formed the backdrop to the restrictive reforms rolled out in 2014 to target EU national benefit claimants. These measures were ‘part of the government’s long term plan to… reduce immigration’ – which seems like a declared intention to obstruct movement. These changes were not coupled with supporting evidence on savings to be made. Meanwhile, The Daily Mail complained that changes restricting EU nationals’ access to jobseekers allowance were ‘unlikely to have a big impact on migration as most migrants don’t claim.’

The New Settlement: Groupthink and evasion

In November 2015, three months before launching a pro-EU referendum campaign, David Cameron was publicly criticising free movement, describing the ‘pressures… on our schools, our hospitals and our public services’ as ‘too great’. The problem, he said in his letter to Donald Tusk, was ‘one of scale and speed’ and current net migration was ‘not sustainable’. In sum, he said ‘we need to go further to reduce the numbers coming here… we can reduce the flow of people coming from within the EU by reducing the draw that our welfare system can exert across Europe.’ Again, we see declaratory discrimination and declaratory obstacles to movement.

Both the receipt of in-work benefits, and the exportation of child benefits were key points of revision in David Cameron’s proposed ‘New Settlement’ with the EU.

The European Commission, to some degree, contributed to creating the perception of free movement as costly for the UK, noting that the UK had provided ‘“the kind of information [that]… shows the type of exceptional situation’ that would justify a benefit brake to EU workers ‘exists in the United Kingdom today’. However, the Commission did not give any evidence to demonstrate an ‘exceptional situation’.

The notion that EU nationals were a drain on public finances was not supported by evidence. The economic evidence in favour of free movement was plentiful. I’ve described this process as an act of Groupthink  – a social psychological phenomenon in which a group agree upon their reality and adopt mechanisms to screen out dissent and contrary evidence. The guiding principle, it seems, was to second-guess public perception of EU migrants as a drain on public finances, and to reproduce and amplify that perception.

Impact of free movement – the evidence

The evidence, including a major study by the UCL Centre for Research and Analysis on Migration, suggests that EU nationals in the UK are net contributors to the economy. Oxford University’s Migration Observatory concluded that the more recent the migrant’s arrival, the more likely the positive contribution. ONS figures show that EU nationals are less likely than UK nationals to be unemployed. The EU Commission’s studies in 2013 and 2014 also found that free movement was beneficial to the UK, the earlier report noting that the Department of Work and Pensions had reported that there was no evidence of benefit tourism.

The government’s own Balance of Competences review received a wealth of authoritative evidence to suggest that free movement was not leading to benefit tourism or creating undue pressure on public services. But the final report did not reflect  the evidence submitted to it. There may be negative localised effects of free movement, which would need to be addressed through public spending choices. However, such effects are not clear-cut – higher levels of immigration are not associated at a local level with longer NHS waiting times, for instance. Concerns about the effects on social cohesion are also not clearly supported by the evidence.  Studies have not been able to identify a clear relationship between immigration and social cohesion problems. While shared social norms and civic participation might reduce as immigration increases, increasing immigration may contribute to the creation of more co-ethnic communities, which become cohesive. Social cohesion is highly complex, and some studies suggest that income inequality is more important to social cohesion than immigration.

We now face a Brexit landscape in which retaining free movement is treated as a non-starter. But the referendum did not ask a question about free movement. Moreover, a popular suspicion of free movement should not in itself be sufficient reason to reject it. Many decisions lie ahead, about free movement and the rights of EU nationals resident in the UK. Experts and academics need to try to re-inject respect for evidence in these proceedings, and remind the State that its role should be to challenge discrimination, not echo it and exacerbate it. It is declaratory discrimination to announce that we don’t want Europeans to come here, to continue to court the misconception that EU nationals are a net economic drain, and that they are benefit tourists. And it is an act of declaratory discrimination to frame law and policy around that notion. At a crucial cross-roads, we should try to avoid plummeting into prejudice-based policy.

By Charlotte O’Brien, Senior Lecturer at York Law School, University of York



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