A temporary Norway-style Brexit risks permanent loss of control of our borders

A temporary Norway-style Brexit risks permanent loss of control of our borders

Labour MP Stephen Kinnock made news in the last few days with his claim that he was in conversation with around 15 Conservative MPs about a transitional arrangement which he believes should involve EEA membership. Enough support, of course, potentially to threaten a defeat for the Government.

Mr Kinnock is apparently in favour of EEA membership as a ‘stepping stone’ out of the EU. He believes that interim membership of the EEA would give the Government more time to negotiate a free trade agreement with the European Union. He was clear that EEA membership should be ‘temporary’ and ‘time bound’ but, crucially, when pressed said that it was ‘not possible to put a deadline on it’.

He is quoted as saying:

“The case for the EEA is three-fold. It buys us time to negotiate the final state deal with the EU, it delivers certainty for business and workers, and it allows us to reform Freedom of Movement. The EEA has legal precedent for reforming freedom of movement as it exists in the European Union. Article 112 of the EEA Agreement allows member states to introduce a quota based immigration system, and I would only advocate the UK entering the EEA if we used Article 112 to reform freedom of movement.”

Mr Kinnock seems to be suggesting that, by temporary membership of the EEA, we can remain in the Single Market for a period after Brexit (and so protect trade in goods and services) and can also impose limits on EU migration. He suggests that Article 112 (usually described as the emergency brake) would allow the UK to control EU migration and claims that this would amount to ‘reform’ of free movement. This is very misleading.

If the UK were to join the EEA it would theoretically be possible to impose temporary controls on EU migration using Article 112. This is one of three Articles called Safeguard Mechanisms, which are designed for times of serious economic and social difficulty. It is worth quoting it in full:

“If serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist are arising, a Contracting Party may unilaterally take appropriate measures under the conditions and procedures laid down in Article 113. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Agreement.”

Article 113 requires a country to notify its partners and enter into immediate consultations to seek a commonly acceptable solution. Moreover, the state cannot impose such unilateral measures (for example, immigration controls) until one month has passed since notification has been given or a commonly acceptable solution has been found. Consultations must then continue every three monthswith a view to their abolition before the date of expiry envisaged, or to the limitation of their scope of application.

It is clear therefore that any such limits are designed to be no more than a very temporary opt-out of free movement and in exceptional circumstances. Indeed, in evidence to the House of Lords EU Committee, Dr Ulf Sverdrup, the Director of the Norwegian Institute of International Affairs, said that any such limits under Article 112 “should be temporary and proportionate” and was very clear when he added that “I do not think the Article 112 strategy is designed for countries that want to be left out of the free movement of persons”. Furthermore, it is said that Norway has never used the ‘emergency brake’ under Article 112-114 for fear of retaliation by the EU.

One might think that such fear is warranted. After all, when Switzerland voted in a referendum to introduce quotas on EU migration it was suspended from the Erasmus scheme. The EU Employment Commissioner Laszlo Andor remarked that this was not a punishment or sanction of the expression of the Swiss electorate but a logical consequence of the choice Switzerland itself has made.”

Mr Kinnock is therefore misguided if he believes that the UK could unilaterally impose numerical limits on migration by EU citizens during our temporary membership of the EEA for what he admits could be an indefinite period.

There is also the wider picture to consider. The EU27 were not willing to contemplate any serious concessions on freedom of movement when there was a risk of the UK leaving the Union. So why would they do so now when we are on the way out? They would be well aware that, in the light of the tensions in the EU over the migrant crisis, they would be opening a can of worms that could well have wider consequences.

The reality, therefore, is that EEA membership, even as a transitional arrangement, would require the UK to continue to accept free movement of people for the full period that we remain in the EEA and it is disingenuous to suggest otherwise.

And then, of course, there is the possibility that the French quip that “there is nothing so permanent as the temporary” would come to pass. Could that explain Mr Kinnock’s enthusiasm?