Elaine McIlroy: Closing our doors makes no sense at all

Remain supporters backing  free movement of labour within the EU on the March for Europe in London. Picture: PA
Remain supporters backing free movement of labour within the EU on the March for Europe in London. Picture: PA
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Scotland needs migrants and uncertainty over their future is a worry for both them and employers, says Elaine McIlroy

Now many Scottish businesses have recovered from the initial shock of the Brexit result, they are wondering what the “new world” will look like, and how this will impact on recruitment given the potential changes in immigration rules. A question for many is whether Scotland’s businesses can flourish if they lose access to EU workers.

The ability to live, work and study anywhere within the EU has been an integral part of EU membership for decades. This provided Scottish employers with a far greater pool of labour than they would otherwise have had – compensating for some of the London brain-drain. That included bright, talented EU migrants fresh from Scottish universities, but also lower skilled workers from some of the newer accession countries who were prepared to do some jobs that were harder to fill.

At present, it’s unclear whether the principle of free movement of workers will remain part of our arrangements with the EU following the UK’s exit. Since the vote, European leaders have been lining up to make their position clear – the UK cannot benefit from the single market without recognising free movement. It seems that we may not be able to have our cake and eat it.

On the other hand, some of the Conservative leadership candidates have stated they will seek to negotiate a deal with Europe that continues the UK’s access to the single market without recognising free movement of workers. Ensuring UK control over immigration was a key factor for the Leave vote. Whether or not their position is nothing more than wishful thinking remains to be seen.

At this early stage it is still not clear whether freedom of movement will stay or go and what sort of immigration system might replace the current arrangements. But if free movement is withdrawn, it is surely inevitable that that fewer migrants will come to Scotland to work and study. And although some may think that that is a good thing, it is unlikely to be viewed as such by employers.

The impact for Scotland in losing access to EU workers is likely to be considerable. Scotland has a substantial number of EU workers here already – often doing relatively low skilled jobs which the local labour market finds unappealing. Although the exact numbers vary across regions, it is clear that certain employers and sectors will be hit harder than others.

A Migration Advisory Committee report from 2014 commented that Worker Registration Scheme data showed that around 23 per cent of workers in Perth and Kinross were migrants – initially heavily concentrated in jobs in agriculture but also in other sectors such as catering, food processing and social care. Aberdeenshire had around 14 per cent migrant workers. So some areas will be hit more than others.

What is clear is that the needs of the Scottish economy have always been distinct from other parts of the UK and with an ageing and falling population, it may not be in Scotland’s interests to close its doors further to immigration.

In the meantime, Scottish employers are having to deal with some immediate employee relations issues as a result of the uncertainty that the Brexit result has unleashed.

Existing EU workers have been left in the position of “hoping” that they will be allowed to stay in the UK. Calls by Yvette Cooper for emergency legislation to be passed to assure EU workers already in the UK that their position will be protected have so far fallen on deaf ears.

It would appear to be unlikely that EU workers and students already in the UK will be forced to leave, but this needs to be put beyond doubt. As a result of the delay, some employers have already reported cases of EU workers who had planned to make the UK their home withdrawing from job offers based on the current uncertainty.

All that is certain is that there will be change – and the sooner it happens, the less the impact. In employment terms, there will be an enormous job to do unpicking the fine print, but it is likely that ways will be found for EU workers already in the UK to enjoy a similar status to that which they enjoy at present.

• Elaine McIlroy is a partner specialising in employment law at Weightmans (Scotland) LLP.

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