Prospects for mobility of UK universities after Brexit

The prospects for the post-Brexit mobility of United Kingdom students and researchers to the European Union have been well aired. Anne Corbett and Claire Gordon provide a timely update of the fears and hopes of British academia. But what of UK universities’ ability to establish as higher education service providers in EU member states?

Here, uncertainty persists. What is clear is that, once the current transition period is ended, UK higher education institutions will no longer be free to establish and deliver services in EU member states.

They will have been stripped of the protection of the Services Directive and the Treaty on the Functioning of the EU, both of which have been invoked in the past to allow the setting up of branch campuses and franchise operations.

Third country status

As a non-Schengen third country, the UK will hope to join Canada and Japan, both of which have struck deals with the EU. Indeed, Canada is often touted as a model of what the UK would like to achieve. The EU-Canada Comprehensive Economic and Trade Agreement (CETA) allows for the provision of higher education services, but is more interesting for what it excludes.

Higher education falls primarily within the legal competence of EU member states. They have the right to protect the integrity of their higher education systems. In the CETA, 14 EU countries have opted to do so:

• • They have required authorisation by a competent authority, government or parliament.
  
  
• • They have required that the academics employed must be EU citizens.
  
  
• • They have imposed economic needs tests.
  
  
• • They have imposed nationality conditions on governing bodies and senior managements.
  
  
• • They have reserved the right to adopt and maintain any relevant measures.

In a trade deal with the UK, they could go further and:

• • Exclude certain disciplinary areas.
  
• • Set equity limits on joint ventures.
  
• • Insist on compliance with local regulations.
  
• • Rule out certain physical locations.
  
• • Put a ceiling on student numbers.

Is all of this likely to figure in an EU-UK trade deal?

In March, the EU will finalise the mandate given to its negotiators. It envisages triggering the ratification process by October. The seven intervening months, according to experts, cannot possibly yield a comprehensive agreement covering a wide range of services. Urgency demands an ‘EU-only’ agreement, not a ‘mixed’ agreement like the CETA, which needed ratification not only by Council and Parliament, but also by 35 national and regional governments.

On this basis, higher education is unlikely to figure in any agreement concluded in 2020.

On the other hand, there are those who are sceptical of the viability of an agreement which is limited to the trade in goods. The European Services Forum insists that trade in goods is dependent on services in communications, transportation, storage, insurance, public health, accountancy and law. These will have to be negotiated, so why not higher education?

Where does the UK stand?

The UK’s readiness to negotiate is in doubt. Political commentators expect a re-shuffle of ministers and ministries in the near future, requiring some settling-in time.

Moreover, the Johnson government has stated its intention to pursue five trade agreements simultaneously – with the EU, Australia, Japan, New Zealand and the United States. Experts consider this fanciful, given the UK’s lack of negotiating capacity, contrasted with the expertise and experience of the targeted partners.

To ease its emergence as a viable trade negotiator, the UK has tried to roll over the agreements to which it was party as an EU member state. At the latest count, it has secured 20 continuity agreements, only half-way to target. Canada and Japan, moreover, are holding back, hoping to squeeze better deals out of the UK than they were handed by the much more muscular EU.

Erasmus+ and Horizon Europe

Will future Erasmus+ and Horizon Europe programmes figure in a trade deal? On the face of it, they will not, since application for associate country status is a separate procedure. In any case, they are taken sufficiently seriously by both sides to suggest that they will be more than mere makeweights in the inevitable horse-trading that concludes trade deals.

On the other hand, money is involved. The European Commission this week published its Recommendation to the Council of Ministers, setting out its preferred negotiating mandate. In respect of EU-funded programmes it is careful to specify “participation in and contribution to…”.

The recommendation notes that “the envisaged partnership should aim at setting out conditions for entry and stay for purposes such as research, study, training and youth exchanges”, leaving it unclear whether this refers to the funded programmes or to activities which fall outside them – or indeed to both.

Nothing is decided until everything is decided

First indications are that negotiations will be difficult. The EU’s draft mandate is public, coherent and potentially binding on its negotiators. The UK, for its part, has published an ‘approach’ that runs completely counter to the EU’s wish for regulatory alignment and a level playing field. It commits to considering participation in “certain EU programmes”.

The government seeks reciprocity in short-term entry and stay for business persons, while at the same time it is working on a points-based immigration system.

Time will tell whether and how the EU draft mandate and the UK ‘approach’ evolve in relation to each other. Meanwhile, UK universities find themselves stuck at square one of due diligence, which is intensive lobbying.

Howard Davies is an independent consultant in European higher education.