Prof. Dagmar Schiek (@ dschiek )

1. Prof. Dagmar Schiek (@dschiek) Migration and post-Brexit Workers’ Rights NICRE 3rd Human Rights and EqualityConference 28 June 2019

3. “Brexit” consequences Negotiated (responsible) Brexit A systematic overview from a legal perspective

4. Employment, free movement or migration rights?

5. Migration post Brexit (1) EU citizens into the UK UK citizens into the EU Profit from “Third Country Nationals” Directive package Ireland and Denmark only bound per individual opt in (exceptionally) Single permit directive (2011/98/EU) Streamlines the application procedures Introduces limited equal treatment rights Long term residents’ directive (2003/109) “free movement” for long term residents Near equal treatment Unsatisfactory implementation (COM(2019) 161 final Younger directives (highly qualified, intra company transfer, researchers…) Diverse stages of equal treatment • In principle: treated as all other non-EU citizens • Four levels of immigration rights (tier one to four), dependent on “sponsorship” and/or sufficient resources • Points based system would grant even more flexibility /insecurity • To note: posting as another route to labour immigration no longer available

6. “Free movement” post Brexit – with /out agreement Withdrawal agreement Cliff edge contingency plans EU Commission requested that Member States create contingency measures No status withdrawal in first six months Securing UK citizens’ status progressively This entails legislative protections in Member States UK has issued some reassurances for EU citizens that are already in the country Changes to legislation ensured the end of free movement for “Brexit day” Immigration and Social Security Coordination (EU Withdrawal) Bill 2017 – 2019 Current aspiring PMs plan more restrictive system (points based) • Protected those EU / UK citizens who had relied on free movement rights • Limited protection for non-economic movers • Protections for TCN not carried over • That part of the withdrawal agreement had the strongest position of the ECJ • As NI/Ireland Protocol had no provisions on free movement, this was the only protection for EU citizens in NI as well

7. Special issues Northern Ireland • The Good Friday Agreement created different citizenship status • People of Northern Ireland by “ius sanguinis” (born here to Irish or British parents or those with permanent right to abode) • All other people • Differences between EU citizens and Irish “people of Northern Ireland” so far “papered over” by EU law • With exception for political rights in the event of “border poll” and Stormont representation • Leaving the EU removes the wallpaper and exposes the cracks • Also ends period of normalisation in NI

8. Free movement into Northern Ireland Inward migration into NI from 2000 onwards, decreasing from June 2016. Main sectors are manufacturing and hotels and restaurants Service sector partly depends on EU labour moving into Northern Ireland This includes continued x-border work (RoI) http://www.niassembly.gov.uk/globalassets/documents/raise/publications/2016-2021/2016/general/3916.pdf https://www.economy-ni.gov.uk/sites/default/files/publications/economy/Migration-Summary-and-Infographic_0.pdf

9. Free movement of persons and equal treatment – the normative case • EU unique in guaranteeing free trade alongside factor mobility • Equal treatment of persons in host state • Precondition for upward mobility • Addressing fears of “unfair competition”

10. Free movement EU principles Exceptions Non-economic free movers Secondary law Case law Transitional arrangements upon accession (plus: Cameron Deal) The conundrum of posted workers • Articles 45 (2), 49 (2) TFEU • equal treatment for economic free movers • Article 18, 21 TFEU, 21 CFREU • Equal treatment for non-economic free movers • UK obsession with free movement & equality will haunt EU in years to come • Why this obsession??? • Vulnerability of specific welfare state concept (or absence thereof) • May/Cameron promise from 2010: reduce arrival of foreigners • The general fallout of populist discourses • Where does this go? • “fair mobility” widely promoted • Some critical voices pertain, but not much reason around

11. Employment Rights - legislation • Equal Treatment (1975, 1976, 2000, 2004, 2006, 2010) • women & men (employed, self-employed, social security, goods and services) • Irrespective of racial or ethnic origin (same, plus health care and education) • Irrespective of age, disability, sexual orientation, religion and belief • Precarious work (1997, 1999, 2008) • Part time, fixed term, agency work • Consequences of economic crisis (1974, 1975, 1979, subsequent reform) • Transfer of undertakings • Collective redundancies • Employer insolvency • Information and consultation of workers, wider employee participation • Part of “crisis directives”, plus Directive 2002/98 • Health and safety – innumerable, based on Directive 89/389 • Working time: Directive 2003/88, new Directive on work life balance

12. Employment Rights Context of EU Neighbourhood (Ukraine, Moldova, Georgia) • Define core of employment directives • Working Time Directive • Collective redundancies • Transfer of Undertakings • Information & Consultation of workers • Part time work, fixed term work • Health & Safety for fixed term and agency work • Equality Directives, Pregnant workers • Health and Safety Directives • Implementation through Association Agreement committee • Relatively weak, if no interest in approximation Missing: agency workers’ protection, posted workers’ directive, wider context of workers’ co-determination (company law)

13. Employment rights – relegated to future relationship Protocol NI/Ireland as indication of intention of outgoing EU Commission Employment rights and equality acquis with weak protections Modelled on Eastern neighbourhood agreements

14. NI / Ireland protocol – judicial protections “rights” Main text of agreement

15. Conclusion There is a crack in everything – this is how the light comes in? This Photo by Unknown Author is licensed under CC BY-SA