offers useful clarification on the contentious issue of freedom of movement of persons/labour (the two words are widely used indiscriminately but are obviously different. Treaties refer to ‘persons’ but in practice freedom is restricted mostly to workers and immediate family). The authors are specialist academic lawyers, one being Professor of European Law at Middlesex University. Their post aims to clarify the scope of EU free movement rules and address some common misconceptions that we read in the press and elsewhere.
“We argue that … much of the criticism of free movement has targeted a ‘straw man’, with little regard to the actual regime.”
The misconceptions we are presented with, including by dishonest or incompetent senior EU representatives, have led many to assume that the UK needs to restrict current EU freedom of movement rules.
“To argue that the UK has simply ‘no control’ over immigration from the rest of the EU is inaccurate.”
Does EU Law guarantee an absolute right to move and reside anywhere in the EU?
“No. Treaty rights of free movement are subject to limitations.”
“Article 45(3) of the Treaty on the Functioning of the European Union (hereinafter: TFEU) states that the rights to (a) accept offers of employment, (b) move freely between States to take up employment, (c) reside in other Member States, and (d) the right to stay in another Member State after employment has finished, are subject to ‘limitations justified on grounds of public policy, public security or public health’.” (our emphasis)
The authors argue that the public policy limitation has not been adequately explored. Had it been understood and used effectively the issue of freedom of movement might not have become such a contentious issue. An additional exception is that free movement does not apply to employment in the public services.
“The key point remains that EU Treaties have always clearly provided that free movement rights are not absolute and included in addition a number of permanent derogations to the general principle of non-discrimination on grounds of nationality.”
An EU national does not have a right to reside in another member state if they become an unreasonable burden on the public purse. An EU Directive (2004/38) states that the right to reside for longer than three months is restricted to workers and self-employed, and their families, students, and those who are self-sufficient, that is have sufficient resources to support themselves without drawing on welfare or other benefits.
The European Court of Justice (ECJ) has made some limitations explicit; these include people who wish to move solely to claim benefits.
“So member states have discretion over the arrangement of their welfare systems and eligibility conditions, and are entitled to set conditions tied to having a right to reside that only apply to EU nationals, and make it impossible for economically inactive EU nationals to claim benefits.”
“Economically inactive EU nationals must be self sufficient in order to have a right to reside, and EU nationals who are workers must demonstrate that their work is genuine and effective.”
In short, the British Government has the legal ability to restrict the immigration of EU nationals without the need to alter the current rules. Given that UK businesses want and need to employ capable immigrants and that UK voters want to reduce immigration, the present system could be used to meet both expectations. Britain does not need to abrogate this ‘freedom’ when it leaves the Union; it just needs to comply intelligently.
“By contrast to most EU Member States, the UK [Labour Government] decided not to derogate from the free movement of workers during the seven-year period with respect to nationals of the countries that joined the EU in 2004. In other words, the UK … sovereignly decided to open their labour markets directly from 1 May 2004 with respect to workers from countries such as Poland.”
However, when Bulgaria and Romania joined the EU in 2007 (and Croatia in 2013) nationals of those countries were not allowed to move freely to the UK but had to get Home Office permission to do so, at least for an interim period of seven years, consistent with EU rules.
“Fulfilling the conditions set by the EU, in order to exercise free movement rights, typically means being a worker. This is therefore not uncontrolled migration, but the means of control is not immigration law – it is the labour market, which is the key to a right to reside and to stay in another Member State. This is an important point too often ignored.
“Member States thus have some considerable freedom to limit benefit entitlement to those considered to be contributors, and so to avoid awarding benefits to those perceived to be benefit tourists. It is therefore misleading to suggest, as Theresa May did in August 2015, that EU law would guarantee a freedom to claim benefits.”
The authors ask and answer questions concerning EU law in connection to welfare tourism, abuse and fraud, and removal of criminals. In each case they conclude that existing law is adequate to enable the government to restrict internal EU migration to meet the needs of the UK. There is no such absolute as the “free movement of people”.
“EU free movement rights can only be exercised in accordance with the conditions and limitations laid down in the Treaties and the legal instruments adopted thereunder.”
An inference can be drawn from all this (though not explicitly by the authors) that UK governments have not applied themselves adequately to the task expected of them – to reduce unwanted immigration. Is it possible, having handed over so much responsibility to the EU, that UK politicians have lost the plot and no longer have the ability to interpret and apply EU treaties, laws and regulations for the benefit of the nation? If so, this adds to the complexity of Brexit by requiring us (voters) to raise our expectations of our elected representatives and hold them to a higher standard of performance. Of course, it is exactly consistent with the agenda of the EU’s mandarins that national governments should be infantilised as part of the process of transferring powers to the EU.
There is a lot more detail in the blog post cited but we hope that our simplification of these key points is accurate and clear – and helpful. Our conclusion: Freedom of Movement is not the big issue that it is claimed to be.