Immigration

Unlike previous elections, the issue of immigration in this one will be more potent; it came second in the list of voters' concerns by a Ipsos MORI poll in November last year and reared its head in a very public way in the summer.

Despite the obvious electoral advantages of tackling this issue head-on, the main parties have been very reluctant to do anything other than put forward token gestures. Tim Montgomerie from Conservative Home urges, in the Guardian, for the Tories to talk about it more:

First, Labour is already campaigning on the issue and at the highest level of the party. Cabinet ministers including Gordon Brown's right-hand man, Ed Balls, are distributing surveys in their constituencies entitled Let's talk about immigration. The Guardian's Polly Toynbee – and not for the first time – used her column in to note the negative impact of large-scale immigration on lower-income workers. She wrote that the last decade had seen "the greatest inward migration the country has ever known" and admitted that it had been "unplanned, unwilled and only slightly controlled".

Tory candidates tell me that immigration is a bigger issue on the doorsteps now than when Howard campaigned on it five years ago. That's entirely predictable. Hundreds of thousands of more immigrants have arrived since 2005.

This was picked up by the Spectator:

Talk to a Tory candidate and they will say there’s only one issue that gets cut-through on the doorsteps. And, so, all parties seem to be adopting a “shout it locally, say nothing nationally” approach to immigration. But in these tough economic times, the issue is bound to have more traction than it did five years ago.

The reluctance to discuss immigration is in some ways understandable, it's very easy to get the tone of the message wrong. Labour have used the cry of racism effectively to shut down any debate about it in the past. But there's also another reason; to discuss immigration properly is to discuss Britain's relationship with the EU - an issue the main parties' are desperate to avoid more than anything else.

The principle of free movement of persons is locked into EU law via various treaties and directives, such as Directive 2004/38/EC and Article 45 of the Lisbon Treaty. Yet time and time again this indisputable fact gets overlooked, not just in the two publications highlighted above but in many newspapers and blogs, despite the comments fields nearly always pointing it out.

Take Tim Montgomerie as an example, it isn't until the fifth paragraph near the end that he even mentions the EU (my emphasis):

Third, I'm not asking the Tories to adopt new immigration policies but to deploy the ones they already have. The Conservative party already has credible plans to give the border police more powers. It supports a cap on inflows from outside the EU, although has yet to define that cap. It supports the Australian-based points system for work permits.

That's it, mentioned in passing. Nothing more. It's just dishonest.

Lets be clear, there is already a points-based system for immigration but this only applies to non-EU applications, including those from Commonwealth countries who have fought for our country. There has already been a clampdown on student visas, and it's perfectly possible to cap immigration from outside the EU. However our membership of the EU means that we can't restrict the movements of citizens from the other 26 EU countries. There's nothing we can do to prevent the strain on the lower end of the wage scale, which are increasingly being filled by immigrants from within the EU.

Last week further illustrated the impotency of the UK Government to tackle immigration or to control it's own borders. There were two important judgments by the European Court of Justice last week on the issue of free movement of persons and of residence which affect the UK.

In both judgments the ECJ ruled that a child of a migrant worker has a right of residence in the UK under EU law when they are the primary carers of children in education in the UK, even if they could not support themselves without state benefits.

In the case of C-310/08 Ibrahim:

Ms Ibrahim is a Somali national married to a Danish citizen, Mr Yusuf. Mr Yusuf arrived in the United Kingdom in the autumn of 2002 and worked there from October 2002 to May 2003. From June 2003 to March 2004 he claimed incapacity benefit.

After being declared fit to work at the end of that period, he left the United Kingdom, before returning there in December 2006. It is common ground that, between ceasing work and leaving the United Kingdom, Mr Yusuf ceased to be a ‘qualified person’ within the meaning of regulation 6 of the Immigration (European Economic Area) Regulations 2006. On his return to the United Kingdom, he did not recover the status of a ‘qualified person’ with a right of residence under European Union law.

Ms Ibrahim arrived in the United Kingdom with the permission of the immigration authorities in February 2003 in order to join her husband.

The couple have four children, of Danish nationality, aged from one to nine. The three oldest arrived in the United Kingdom with their mother and the fourth child was born in the United Kingdom. The two eldest have attended State schools since arriving in the United Kingdom.

After her husband left the United Kingdom in 2004, Ms Ibrahim separated from him. She was never self-sufficient. She does not work and depends entirely on social assistance to cover her living expenses and housing costs. She does not have comprehensive sickness insurance cover and relies on the National Health Service.

The ECJ ruled:

In circumstances such as those of the main proceedings, the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.

In the case of C-480/08 Teixeira:

Ms Teixeira, a Portuguese national, arrived in the United Kingdom in 1989 with her husband, also a Portuguese national, and worked there from 1989 to 1991. Their daughter Patricia was born there on 2 June 1991. Ms Teixeira and her husband were subsequently divorced, but they both remained in the United Kingdom.

After 1991 Ms Teixeira had intermittent periods of work in the United Kingdom. She was not working when Patricia started to go to school in the United Kingdom, but she worked for various periods during her daughter’s education. Her last employment in the United Kingdom was in early 2005.

On 13 June 2006 a court ordered that Patricia should live with her father, but could have as much contact with her mother as she wished. In November 2006 Patricia enrolled on a childcare course at the Vauxhall Learning Centre in Lambeth. In March 2007 Patricia went to live with her mother.

On 11 April 2007 Ms Teixeira applied for housing assistance for homeless persons under Part VII of the Housing Act 1996. She based her claim to a right of residence in the United Kingdom in particular on Article 12 of Regulation No 1612/68, as interpreted by the Court in Case C‑413/99 Baumbast and R [2002] ECR I‑7091.

The assessment officer of the London Borough of Lambeth considered that Ms Teixeira was not eligible for housing assistance, and therefore rejected her application.

The ECJ ruled:

1. A national of a Member State who was employed in another Member State in which his or her child is in education can, in circumstances such as those of the main proceedings, claim, in the capacity of primary carer for that child, a right of residence in the host Member State on the sole basis of Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, without being required to satisfy the conditions laid down in Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.

2. The right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue his or her education in accordance with Article 12 of Regulation No 1612/68 is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there.

3. The right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, is not conditional on one of the child’s parents having worked as a migrant worker in that Member State on the date on which the child started in education.

4. The right of residence in the host Member State of the parent who is the primary carer for a child of a migrant worker, where that child is in education in that State, ends when the child reaches the age of majority, unless the child continues to need the presence and care of that parent in order to be able to pursue and complete his or her education.

Further proof that any discussion about immigration without discussing the UK's relationship with the EU is not an honest one.