Guest Post

By – Dr. Kaustav Bhattacharyya

FREEDOM OF MOVEMENT OF PEOPLE IS RESTRICTED!

The worst nightmare has come true; Britain has voted to leave the EU or what’s known in common parlance as the Brexit in a widely attended referendum with a turnout higher than national elections with roughly 72pc and the verdict in favour being around 51pc; a rather decisive one. The results sent tremors like a political tsunami through the UK, EU and the entire world. At the heart of this referendum campaign and the concomitant disenchantment of the British ‘leave’ voters was the issue of immigration, unfettered and uncontrolled immigration. Lets us ponder what exactly is the volatile issue of immigration and what lies behind it; UK like most Western countries has restricted, selective process of accepting migrants but in case of EU it has to accept every EU citizen who is willing to work and live and grant the permission to do so.

European Union extended its frontiers and expanded its borders through a process called ‘Accession’, between 2004 till about 2007 and 12 new member states joined the EU. The citizens of these new member states of Accession countries were granted the free, unrestricted access to the UK labour market since UK is a member of the EU. This unrestricted immigration where individuals from new member states can enter UK and stay back and work had a cascading effect on the number of new migrants entering UK legitimately. To offer an idea of the scale of this European migration, the population of Eastern European migrants in the UK between 2004 and 2014 the 10-year period since the accession of these Eastern bloc countries rose from around 150,00 to about a million which is on an unprecedented scale for the British society.

Clearly the immigration from Eastern Europe was perceived to be a major irritant for most of the British voters and being part of the EU or membership of the bloc was seen as something undesirable and negative. Political parties and the politicians who were campaigning for Brexit championed slogans like ‘take back control of our borders’ and even the posters depicted doomsday scenes of millions of migrants marching into the UK. For the people outside of UK it is important to grasp the dimension of the issue of migration from newer member states of EU and the angst it has created which we may agree or disagree but certainly made an impact on the voter’s mind.

FREE MOVEMENT OF WORKERS AND FREE TRADE- SACRED ‘LAW’ FOR EU:
The referendum was triggered by among other factors the refusal of EU to allow the imposing of restriction on European workers having access to the UK labour market. The British PM Mr. David Cameron had stated following the results that the referendum was lost over the principle of unrestricted access travel and right to work among the EU citizens. The free movement of workers is a fundamental principle enshrined in Article 45 of the Treaty on the Functioning of the European Union.

Freedom of movement of workers being a right includes the specific rights of movement and residence for workers, the rights of entry and residence for family members, and the right to work in another Member State and be treated on an equal level with nationals of that Member State. Interestingly the EU has actively promoted and facilitated this free movement of workers through the recognition of professional qualifications enabling the citizen to practice their profession without any obstacles. This has been ensured through a legislative instrument of a Directive 2005/36/EC (as modernised by Directive 2013/55/EU) which reformed the system of recognition of professional qualifications. Besides there is a EU-funded cooperation network EURES(European Employment Services) involving none less than the apex body of European Commission.

As a matter of fact what is strikes as an ‘unkindest cut’ for the Brexit camp is the fact that countries which are formally not part of the EU but enjoy access to the Single Market as members of the EEA(European Economic Area) like Iceland, Liechtenstein, Norway and even Switzerland which is member of the EFTA(European Free Trade Association) and has access to the Single Market in some areas of Trade have to concur with the principle of ‘Free Movement of Workers’. Several EU leaders have put their foot down and stated unequivocally that if UK wishes to have access to its Single Market then it has to permit the free movement of EU citizens within its borders and their right to be engaged in employment, in other words ‘Free Market’ implies ‘Free Movement of persons’.

Apparently there seems to be an EU legislation which is part of the very essence of EU, i.e. Four Freedom, free movement of capital, goods, services and workers. In post-Brexit scenario the European leaders including European Council President Mr. Donald Tusk along with the French and German heads of state warned Britain that it cannot engage in ‘cherrypicking’ and if it wished to enjoy the access to Single Market then it has to accept the freedom of movement of EU citizens which is clearly the dotted red line and non-negotiable. Hence what can be concluded is that the freedom of movement of people is inextricably linked to the Single Market and the philosophy of Free Trade for EU leadership. In post-Brexit negotiations its evident that the EU key decision-making elites will not yield in this stance to the UK.

GATS WITH GLOBAL FREE MOVEMENT OF PEOPLE – EUROPEAN MORAL HYPOCRISY:
Since the EU has so emphatically and forcefully linked the idea of Free Trade with Free Movement of People one needs to speculate if the same rules apply in the global arena where EU countries are prominent actors. The creation of GATS(General Agreement on Trade in Services) occurred in the same year, i.e. 1995 as when WTO located in Geneva, came into being as an international organization responsible for arbitrating free and fair trade armed with legislations and ability to penalize on erring nations which are member states. Hence in the global arena we do have legislative instruments which are supposed to link free trade in services with free movement of people and EU elites are not clamouring for anything unusual or radical. The fundamental guiding principle of GATS was the distinguishing of four disparate and distinct modes of providing services: cross-border trade, consumption abroad, commercial presence and presence of natural persons.

Most importantly the Mode4, which is defined as ‘Presence of Natural Persons’ supply is confined to temporary movement of labour to supply services in a foreign market without any rights or access to long-term residency or citizenship. It would be prudent to consider the record of EU enthusiasts of free movement of persons in the global arena while dealing with non-EU members states of WTO and needless to mention that it is nothing but distressing. We are all well aware of the collapse of the Doha round of talks due to the duplicitous position of the developed world with regards to free trade including that of services apart from agriculture. For a proper perspective let’s focus on the specific adopted EU position with regards to India in our FTA(Free Trade Agreement) negotiations and here Mode4 means of liberalization of services remains one of the most contentious issues.

According to the Delhi Policy Group think-tank the free movement of Indian professionals through EU remains the biggest stumbling block in liberalization and access to the EU services sector which is a priority for the Indo-EU FTA. It would be worthwhile to state here clearly that India’s case is only an instance of the developing country relationship with EU in terms of providing market access to the services sector through Mode4 and is representative of the moral hypocrisy of the current position of EU vis-à-vis the UK. The full-blown market access through Mode4 for India is curtailed through measures like work permits, visa regulations and recognition of professional qualifications. India had insisted that EU adhere to binding promises on liberalizing trade in services through Mode1 and Mode4.

Ironically the two most vocal countries in the post-Brexit scenario hammering on free movement of people as linked to free trade, France and Spain have instilled nationality and local language knowledge requirements as criteria for availing of positions in the services sector which have adversely affected opportunities for Indian service-providers. One of the most disputed issue is that of the recognition of professional qualifications for Indian professionals intending to provide services. The instruments and mechanisms which have been deployed by EU in hindering India are in the form of visa restrictions, economic needs test and quotas on the movement of professionals. Similarly it must be a poor testimony to our strategic intelligence and astute thinking not to recognize the contradictions of this GATS MODE4 Paragraph 4 of the Annex notes that the GATS “shall not prevent a Member from applying measures to regulate the entry of natural persons………. to ensure that orderly movement of natural persons across.”

What more clearer statement of intent we need to understand that the Western developed countries like EU were not serious towards global free movement of persons; when we have sanctioned and endorsed instruments to ensure orderly movement of natural persons which would be evoked constantly. Clearly we have to recognize that the GATS Annex on Movement of Natural Persons has integrated and wired in limitations which impede the free trade in services for developing countries. This clearly lets us conclude based on its interactions with India with regard to Mode4 means of services that the current EU intransigence on linking free movement of persons and free trade sniffs of outright moral hypocrisy and double standards.

INSULAR SOLIDARITY OF EU:
The intransigence of EU with respect to freedom of movement or people especially workers across the entire zone linked to free trade rules of Single Market in post-Brexit scenario now lies exposed as morally and ethically hollow in light of their conduct with India. The same insistent EU refuses to actively apply the same rules of game of free movement of people in the global arena which raises the question of solidarity and principled conduct. In other words the ‘principles’ are to be adhered to only when it concerns the citizens of the European geographical area who incidentally share the same ethnicity and race to a large extent. However I am careful to not accuse of EU elites being discriminatory on ethnic grounds since many of the societies are multi-ethnic and multi-cultural.

This demonization of the ‘developing world’ citizens swarming Europe can have harmful consequences for EU in the long run since opening borders selectively will encourage prejudiced thinking. Routinely and actively EU institutions and its associated intellectuals deride and depict the ‘developing world’ or ‘emerging world’ as sweatshops filled with low-cost workers who are threats to its fabled social welfare state prosperity and ever willing to jump on the next ship or bus to EU. Many of us are aware of the distasteful video campaign promoting EU unity where the emerging world was depicted as menacing male figures threatening the chastity of a helpless, innocent women symbolizing EU.

When EU member states revoke GATS clause of ‘orderly flow’ as an alibi for restrictive visa practices and non-tariff barriers the message emanating is that of deep-seated anxiety and prejudice towards human beings who hail from different societies. Now EU elites should explain to the Brexit voters why the ‘orderly flow’ logic is not to be pursued in case of UK being recipient of largest number of migrants in recent history from Eastern Europe. Or the logic doesn’t apply when it comes to similar Europeans from new member states who albeit share traditions, culture and identity with their Western counterparts but only for Asians and Indians. I recollect a presentation made on Mode4 GATS services liberalization in Brussels where finally I thought of appealing to the sensible and practical nature of European policy elites.

There is a strong belief in the ‘soft power’ of EU in global theater where it is jostling for the high seat amongst the old, traditional powers like US, Japan and emergent ones like BRICS. The most fundamental essence of European soft power, which is its raison d’être, lies in the belief of playing by the rules, enforcing and adhering to global regulations rather than being the imperial bully. EU emerged as a powerful entity from the smouldering ruins of Second World War through its moral and cultural leadership making it attractive for countries to join the club. Amidst the brouhaha and cynicism of Brexit it is the historical chance for EU to implement a fair and equitable rules of freedom of movement of people cutting across the narrow confines of its geographical entity on a global scale.

Profile: Dr. Kaustav Bhattacharyya is an entrepreneur from Bengal engaged in the field of ecological water treatment and holds a PhD from Cass Business School, University of London in Management Sciences. Entrepreneurship and Business History being one of his favourite research topics.

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