Last week Sweden dropped a bombshell on the European community by formally asking fellow EU members to relocate some of the thousands of migrants entering the country. This move starkly illustrates how much pressure Europe is under to cope with the biggest migration of fellow human beings since the end of the Second World War. Sweden has always been exceptionally generous with its migration policies, but it is now clear that even it cannot cope with the mass influx of humanity, desperately seeking safety and shelter from war and starvation.

In August this year, we wrote a blog post on the benefits of applying for permanent residence as an EEA National before the UK’s in-out referendum on EU membership. This article follows on from this by examining the effect, if any, brexit will have on migration and immigrants rights. It answers many of the common questions we receive from both EEA and non-EEA nationals concerning this highly divisive topic.

Before coming to those questions, let us look at the stark facts of the situation as it stands today.

more than three million migrants are expected to reach the EU by 2017

5000 migrants per day are expected to land on the shores of Greece

more than 750,000 migrants have arrived in the EU by sea this year, up from 282,000 in total in 2014

Hungary has sealed its border with both Croatia and Serbia, sending thousands of migrants trying to reach Austria and Germany through Slovenia

10,043 migrants arriving in Italy were unaccompanied children

Does Britain Want to Leave the EU or Re-negotiate its Membership?

During the run-up to the May elections, the victorious Conservatives promised to hold an in-out nation-wide referendum, which would directly ask the people whether or not they wished to remain in the EU.

The Electoral Commission, which will approve the final wording of the actual question asked in the referendum has suggested the following question be asked:

"Should the United Kingdom remain a member of the European Union or leave the European Union?"

A referendum is not legally binding on the Government, so even if the people vote they want to leave the EU, nothing has to happen. However, regardless of the outcome of the vote, David Cameron has made it abundantly clear that he wants to re-negotiate Britain's membership of the EU, especially in relation to the Free Movement principle and migration.

What Exactly Does Britain Want?

This is a question that is causing immense frustration in the corridors of Brussels.

The European mood was summed up by the French Economy Minister, Emmanuel Macron, during his recent visit to London.

"We need," he said, "a precise proposal… you have to say what you need."

The government seems to have settled on five basic demands which are:

more power for national parliaments over EU decisions

to safeguard the City and the single market from Eurozone countries banding together and outvoting countries not in the euro bloc

to restrict the rights of EU migrants to claim some benefits in the UK

for an opt-out from the ambition of "ever-closer union"

for a reduction in red tape and bureaucracy

Why Does the Government Want to Restrict the Rights of EU Migrants?

The main reason seems to be because of popular opinion. The UK is seen as already overcrowded, and the population is worried that if more and more migrants are let in, the country’s infrastructure and health and education system will not be able to cope. There is also the fear of ‘benefit tourism’ and the driving down of wages.

However, as we have pointed out in a previous post, migrants contribute positively to the UK economy, and there is very little proof of benefit tourism going on.

Unfortunately, history tells us time and time again that cold, hard facts fall on deaf ears when prejudice is involved.

Renegotiating the Free Movement principle will not be easy. Germany has made it crystal clear that it will not budge on the issue. There are also so many other interconnecting factors that will have to be negotiated if an opportunity to restrict free movement was presented. For example:

Would the EU allow a free trade agreement between itself and Britain without free movement being incorporated? Both Switzerland and Norway allow free movement of EU nationals within their borders in exchange for open access to the European market.

How will the UK compete on an international scale if it restricts its access to a ready supply of workers? If limiting the labour supply leads to a rise in wages and prices, then the UK risks becoming uncompetitive at a time when it will need access to markets outside the EU more than ever.

What About Non-EU Migrants?

As well as attempting to renegotiate its membership of the EU, the Government has proposed to scrap the human rights Act 1998, which incorporates the European Convention of human rights (ECHR) into UK law and replace it with the British Bill of Rights. By withdrawing the UK from the ECHR, certain protections to migrants which open up opportunities to appeal removal decisions may be lost. An example of one such right which is often used in appealing Home Office decisions is the ‘right to private and family life’ under Article 8.

David Cameron, who has often publically expressed his frustration with the European Court of human rights, has appeared to backtrack on this issue recently, and it is no longer at the forefront of Government priorities.

Britain has already opted out of controversial plans to relocate 160,000 migrants throughout countries in the EU; however, it has committed to taking 20,000 Syrian refugees by 2020.

In Summary

When it comes to migration, it remains frustratingly unclear what will happen if Britain leaves the EU. However, there are two points to remember about brexit:

It probably won’t happen; and If it does happen, it will take years to finalise

With Chancellor Angela Merkel reportedly warning David Cameron she would rather see the UK leave the EU than compromise over the principle of free movement, it also seems unlikely that the UK will be able to negotiate any sweet deals on the issue of EU migration.

Perhaps the best approach is to plan for the worst but hope for the best. If you are an EEA citizen, then obtaining permanent residence is a wise move. If you are a non-EEA national wishing to appeal a Home Office decision, it is imperative that you obtain legal advice on how you can use the ECHR to bolster your chances of remaining in the UK.

OTS Solicitors have the experience and expertise to advise both EEA and non-EEA nationals through the immigration process in the UK. We will ensure that your rights under the European Convention of Human Rights are fully protected throughout the procedure and can submit same day applications where applicable.

To talk to us further, please phone our London office on 0207 936 9960 to make an appointment with one of our immigration law experts.