February 27, 2017
May’s next gamble
One of the important open issues about Brexit is the status of EU citizens in the UK and the cut-off date from which the right of residency will be applied. Theresa May has told the Daily Telegraphy that she plans to make the day of the Article 50 trigger the cut-off date. The government previously explored to backdate the cut-off date to the referendum last year, but was told by lawyers that this would illegal, while the trigger date would not.
We are somewhat surprised by this move since the latest statistics show that net immigration has fallen last year as a result of the Brexit referendum. At some point there were fears of a last-minute rush by foreigners to take up residency in the UK before the deadline, but these concerns seemed to be misplaced in view of the latest statistics.
The UK will not apply immigration controls from March, but will use March only as the cut-off date in future decisions about residency status of EU citizens after Brexit. The decision is thus not a breach of EU law. But May's unilateral decision will almost certainly impact the Article 50 negotiations. The report in the Telegraphy said that Downing Street had come under pressure from the EU to delay the cut off date until 2019, the presumed year of Brexit. One government source is quoted as saying that they fear that
“We could end up with half of Romania and Bulgaria coming here if we wait that long.”
In another important Brexit-related news, the Times reports that May is preparing for another Scottish independence referendum to be announced immediately after the Article 50 trigger. The polls show no majority for independence now, but the political assessment in Downing Street is that March is the last moment for Nicola Sturgeon, Scotland’s first minister, to move ahead. Otherwise she risks losing momentum. Technically, May could reject another referendum, but will not do so. Instead, she will insist that the referendum be held after Brexit is legally in force, so that the referendum does not turn into a choice of England-vs-EU. Independence would not change Scotland’s position in the EU. The SNP is eyeing a date of autumn 2018.
One note about Scotland. It in fact makes no difference whether Scotland declares itself independent while the UK is still a member of the EU, or soon afterwards. Scotland will not automatically inherit the UK’s EU membership, and would have to make a new application in either case. And this application would, before Brexit, be rejected by Spain. Whatever the case for independence may be, it is not EU membership. We think Theresa May is right to insist on a postponement on the referendum, simply to introduce some clarity on this point. We recall that the SNP claimed during the last referendum that Scotland could remain in the EU and adopt the pound as its currency. The UK government clearly wants to avoids a re-run of this scenario.
We are more critical about her decision, if true, to set March as the cut-off date for immigration. The decision is based on exaggerated fears of a last-minute immigration rush, and is likely to complicate the negotiations about mutual residency rights.