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Rights Lost in Leaving: The Unintended Consequences of the Leftist Case for Brexit
12 Jun 2016
The following article was originally published in Socialist Lawyer 73, and is reproduced with thanks to the Haldane Society of Socialist Lawyers.
The narrative surrounding the planned referendum on the United Kingdom’s membership of the European Union rarely considers the impact of Brexit on individuals rather than on society as a whole. The campaign literature of both the “leave” and “remain” camps focuses on economic and security arguments almost to the exclusion of all others. Even socialist campaigns to leave the EU frame the debate as one of principle. They attempt to transcend the racist narrative that dominates the leave campaign, turning the referendum into a vote on the EU’s entrenched neoliberalist agenda and crippling austerity programmes. What is missed by such a broad-brush approach is the impact of Brexit on individual lives, caused by the massive legal changes that would inevitably follow.
The first and most obvious consequence of Brexit would be an end to the four freedoms at the heart of the Treaties: free movement of goods; free movement of services; free movement of capital; and free movement for workers. As socialists, the first three of these freedoms may not overly concern us. However, the end of free movement of workers will have a dramatic impact on workers’ lives. Given that the agenda of those who have secured this referendum is by and large to limit immigration to the UK from the EU, there is no reason to believe that free movement of workers between the UK and the EU would continue after Brexit.
The removal of free movement of workers will cause genuine harm to those who wish to move between the UK and the remainder of the EU. British workers will no longer be able to seek a better life in another EU country should they so wish, unless they satisfy the immigration rules of that country. Moreover, EU workers would have to satisfy the increasingly strict UK Immigration Rules, a virtual impossibility for vast numbers of potential migrants.
Potentially the most important consequence of this for individuals’ lives is that families will inevitably be divided. EU citizens (other than Irish citizens, to whom a different regime is likely to continue to apply) in becoming subject to British immigration control in the same way as non-EU citizens, would have no automatic right to family reunification. Family reunification for non-EU citizens wishing to join a British citizen-partner currently requires the applicant to satisfy a host of suitability and eligibility requirements, including earning a minimum of £18,600 per year (plus £3,800 for the first child and £2,400 for each child thereafter), or to show that there are “insurmountable obstacles” to continuing family life outside the UK. This test is obviously intended to have a disproportionately negative impact on those who are worse off economically, whilst having a limited impact on those who are well off. (Indeed, the capitalist class can simply buy their way out of the rules that apply to the rest of us.) Similarly restrictive rules also apply to those wishing to care for dependent adult relatives. Of course, similar provisions may be applied by EU states to British workers who wish to move abroad. The impact of this would be truly tragic, with untold numbers of ordinary people’s lives ruined.
What is often assumed by those on the left campaigning to leave the EU is that some legacy provision will be negotiated allowing those who have already migrated to remain in the state to which they have moved (whether British citizens in the rest of the EU, or EU citizens in Britain). However, there is no reason to believe this will be the case. The premise of the leave campaign (including, regrettably, the chauvinistic approach taken by some on the left) has been to preserve British jobs for British workers. No amount of wishful thinking on the part of those who campaign from a socialist standpoint to leave the EU will change this fact: the mainstream leave campaign want rid of foreigners from the UK’s society and its economy. Article 50 of the Treaty on European Union, which deals with withdrawal from the EU, does not provide for any legacy provision to protect those EU citizens who already live in the UK. There is no reason to believe that the Conservative government, with its right wing in the ascendancy following victory in the referendum, would care to create legacy rights for EU workers in the UK. To campaign as a socialist for the UK to leave the EU is therefore to gamble with the lives of 2 million EU workers in the UK – and 2 million UK workers in the rest of the EU. This gamble may be a high price to pay for the perceived benefits of leaving. It is also a gamble that the millions of working class people affected and who risk being deported from their adopted homelands are unlikely to want to be taken
EU citizens are not the only people who would be affected by Brexit. Third country nationals would also be impacted by the consequent legal changes. An area which affects third country nationals is the question of what happens to individuals who have no status in this country but who are the parents of EU or British citizen children. Without EU membership the UK government would be free to remove such individuals from the country. However, EU citizenship rights of children create a right for many such primary carers to remain in the UK. These so-called “Zambrano carers” are very often single mothers left in the UK to care for young children of EU citizen fathers. With this status their presence in the UK is lawful due to a derived right of residence. Without Zambrano status they would all too often be left destitute as they would be forbidden from accessing benefits or housing services. The impact of this status on individuals’ lives is profound, providing them with stability and the ability to raise their children in the country they have chosen to make home.
A group in an even more precarious position than Zambrano carers are those who come to the UK from third countries seeking protection. The EU has been rightly derided for its treatment of asylum seekers and refugees under the Dublin III system. The system effectively requires an asylum claim to be made in the first EU state in which an asylum seeker arrives, and permits Member States to return asylum seekers within the EU to the Member State of entry (very often Greece, Hungary, Italy, or Spain). A number of notable exceptions to this principle apply, most importantly in the cases of minors, and some organisations have had a degree of success in using the Dublin III procedure to force the UK government to accept child asylum seekers into the UK. Nonetheless, the system itself is imperfect and often brutal in its impact on asylum seekers.
However, what the EU does offer (which the UK outside the EU likely would not) is Humanitarian Protection. Gaining refugee status under the Refugee Convention requires a person to demonstrate that they have a well-founded fear of persecution because of their “race, religion, nationality, membership of a particular social group or political opinion”. This excludes those who are fleeing indiscriminate violence. Such individuals are not, in law, refugees, no matter how serious the harm is that could be caused to them. However, the EU requires member states to offer Humanitarian Protection to individuals who, on their return to their country of origin, would face a serious and individual threat to their life or person by reason of indiscriminate violence. Given the government’s callous disregard for the rights of migrants, and its incessant xenophobic rhetoric, it is difficult to see Humanitarian Protection surviving Brexit. This puts on the line the lives of a great number of people fleeing violence in conflict zones such as Syria and Somalia.
Thanks to the provisions of the “social chapter”, many areas of UK law which appear disconnected from the immigration field are also currently underpinned by EU law provisions. Employment law is one of these fields. The TUC’s analysis makes clear that EU membership provides clear benefits to British workers’ rights:
“The gains UK workers achieve as a result of our membership of the EU include improved access to paid annual holidays, improved health and safety provision, rights to unpaid parental leave, rights to time off work for urgent family reasons, equal treatment rights for part-time, fixed-term and agency workers, rights for outsourced workers, information and consultation and significant health and safety protection.”
In 2012 the Coalition government pushed through provisions creating “employee shareholders” with the intention of creating a new category of worker with essentially no employment rights. The scheme met with only limited success, in part because many of the most important employment rights were written into EU law and so could not be derogated from. The present government, now unconstrained by the Liberal Democrats, would be only too happy to strip these rights not just from “employee shareholders”, but from every worker in the country. In the face of a trade union movement so weak that the Trade Union Act 2016 could be passed in a form that places massive restrictions on the right to strike, there is no reason to believe that the right wing of the Conservative Party, triumphant after a referendum victory, would not take their assault on workers further, overriding all the rights EU legislation presently defends.
EU legislation protects rights in unexpected places as well, which are also liable to come under attack in the event of the UK leaving the EU. One such example is the Directive on the right to interpretation and translation in criminal proceedings, which protects a right which has come under particular threat in the context of government outsourcing. Indeed, without the presence of this Directive there would be nothing to stop the government from allowing interpreters into the criminal courts who have no formal interpreting qualifications. The consequences of this could be disastrous.
The areas of life affected by EU law are, by now, too numerous to name. Different lawyers will be aware of the different impacts of the EU on their areas of specialism. Of course, EU law is not universally positive for British workers. The EU is fundamentally a capitalist project, limited in its excesses by a historically strong Europe-wide trade union movement which has extracted from it concessions. Socialists accept that many EU laws directly harm the working class. However, the nation state is also fundamentally a capitalist project, and many domestic British laws also harm the working class. There is nothing special in this regard about the EU. To call for an end to the EU without also calling for an end to the British state is to be blind to the interplay between capital and state power. When this is understood it should be apparent that Brexit will not act as a break on neoliberalism; the effect will only be that a different section of the capitalist class, oriented away from trade with Europe, will move into the ascendancy, continuing the neoliberal project on a domestic level, but without the working class of Britain having the protections won from the European project. We will still be fighting the capitalist class. But the workers of Europe will be further from our side in that struggle.
As socialists we must also be internationalists, opposing the existence of borders between states, accepting that these exist not for the benefit of the working class, but for the benefit of the capitalist class. Setting up new borders will not bring an end to late capitalism, or to the deregulatory project of the capitalist class. In the British context, it will make exploitation of the working class easier. There is no option on the ballot in this referendum for a socialist Europe, or for a socialist Britain. It is therefore essential that we educate ourselves, and non-lawyers, about what exactly we are voting for.
Stephen Knight is a barrister practising in crime and immigration law, and is Secretary of the Haldane Society.
 Immigration Rules Appendix FM EC-P.1.1.
 Immigration Rules Appendix FM E-ECP.3.1.
 Immigration Rules Appendix FM EX.1(b).
 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) Case C-34/09.
 Established under Regulation 604/2013 and its predecessors.
 1951 Convention Relating to the Status of Refugees Article I(A)(2) read with the 1967 Protocol Relating to the Status of Refugees Article I.
 Directive 2004/83/EC Article 15(c) (the Qualification Directive).
 TUC, UK employment rights and the EU: Assessment of the impact of membership of the European Union on employment rights in the UK, 2016, p 17 available at https://www.tuc.org.uk/sites/default/files/UK%20employment%20rights%20and%20the%20EU.pdf
 Directive 2010/64/EU.Back to News