Eu Complimentary Campaign Police Describe Inwards X Questions & Answers

“We must non brand a scarecrow of the law”

(Measure for Measure, 2.1.1)

Charlotte O’Brien, Senior Lecturer, York Law School, University of York

Laurent Pech, Professor of European Law, Jean Monnet Chair of European Union Public Law at Middlesex University London

This shipping service primarily aims to clarify the orbit of European Union complimentary displace rules amongst the view of addressing some of the most mutual (legal) misconceptions i may regularly encounter inwards the British media together with elsewhere. We fence that the much of the criticism of complimentary displace has targeted a ‘straw man’, amongst niggling regard to the actual regime.

In the UK, for instance, at that topographic point seems to move a broad consensus across the political spectrum on the demand to restrain ‘current European Union liberty of displace rules’ yet ‘current’ European Union rules are oftentimes misunderstood or misrepresented. To fence that the United Kingdom has simply ‘no control’ over immigration from the balance of the European Union is inaccurate. Similarly, i may regret that some European Union actors tend to pigment liberty of displace as i which could non move discipline to restrictions together with i which would move inherently connected amongst rules on the complimentary displace of goods, majuscule together with services.

These aspects together with many others volition move addressed below via 10 questions & answers, which should move of involvement to members of the full general populace looking for an (hopefully) accessible together with legal overview of European Union complimentary displace law. The shipping service volition destination amongst a brief outline of the main models together with possible options for the United Kingdom to consider when it volition take hold to handgrip the ‘framework for its time to come human relationship amongst the Union’ to quote Article 50 of the Treaty on European Union (hereinafter: TEU).

(1) Does European Union Law guarantee an absolute right to displace together with reside anywhere inwards the EU?

No. Treaty rights of complimentary displace are discipline to limitations.

Article 45(3) of the Treaty on the Functioning of the European Union (hereinafter: TFEU) states that the rights to (a) take offers of employment, (b) displace freely betwixt States to take upward employment, (c) reside inwards other Member States, together with (d) the right to remain inwards some other Member State after work has finished, are discipline to ‘limitations justified on grounds of populace policy, populace safety or populace health’. This means, to simplify, that national authorities tin give the axe adopt restrictive measures on a case-by-case footing against European Union workers on whatsoever of these 3 grounds. Arguably the most mutable of these grounds is the populace policy limitation, together with Gareth Davies has argued that this limitation has been underexplored when it comes to complimentary displace concerns, suggesting that greater usage of permitted restrictions mightiness take hold avoided complimentary displace becoming as contentious an number as it did inwards the UK.

Article 45(4) TFEU adds a farther exception – that the complimentary displace provisions shall non apply to work inwards the populace service, so that where roles are thought to move nationally sensitive, involving participation inwards the exercise of powers conferred yesteryear populace police force together with duties designed to safeguard the full general interests of the State, they may move reserved for nationals. This does non amount to a right to employ non-nationals together with and then care for them differently – i time admitted to the labour market, they should non move discriminated against.

Similarly, at that topographic point is some other derogation inwards honor of activities connected amongst the exercise of official authorization for self-employed persons together with providers of services (see Articles 51 together with 62 TFEU). Discrimination against non-nationals is allowed but only amongst regard to positions involving a direct together with specific connector amongst the exercise of official authority. This is why it would non for instance move lawful to adopt a full general ban on non-UK academics providing ‘advisory work’ for UK populace bodies such as the Foreign together with Commonwealth Office on Brexit related matters.

The key indicate remains that European Union Treaties take hold e'er clearly provided that complimentary displace rights are non absolute together with included inwards improver a number of permanent derogations to the full general regulation of non-discrimination on grounds of nationality. Unsurprisingly, however, a number of guiding principles take hold been developed yesteryear the Court of Justice to forbid an abusive reliance on these exceptions yesteryear national authorities.

Secondary European Union legislation forms the ‘specific expression’ of the European Union Treaty complimentary displace rights, together with sets out additional together with to a greater extent than specific weather condition together with limitations. The key status for those concerned nearly do goodness tourism is that an European Union national does non take hold a right to reside inwards a host Member State if they move an “unreasonable burden” upon the populace purse. Directive 2004/38 (the “EU citizens’ Directive”, which is the beginning of the main legal rules on this issue) sets out the ‘categories’ of people amongst an EU-law based right to reside inwards a host Member State for longer than 3 months – essentially, workers/the self-employed together with their household unit of measurement members, students, together with the self sufficient. Students must take hold wellness insurance together with brand a proclamation of sufficient resources.

In recent years, CJEU rulings take hold made some of these limitations to a greater extent than explicit. The Dano instance made clear that someone who moved for the ‘sole’ purpose of claiming benefits would non take hold a right to reside inwards a fellow member province nether European Union law. The Brey case approved of fellow member states setting a right to reside status inwards monastic tell for a claimant to move eligible for particular social safety benefits, non exactly social assistance benefits. So fellow member states take hold discretion over the scheme of their welfare systems together with eligibility conditions, together with are entitled to set weather condition tied to having a right to reside that only apply to European Union nationals, together with brand it impossible for economically inactive European Union nationals to claim benefits.

And inwards Alimanovic and Garcia Nieto, the CJEU emphasised that European Union nationals do non take hold entitlement to social assistance benefits during their kickoff 3 months of residence inwards a host Member State, or at whatsoever indicate at which they are classed as a ‘jobseeker’, fifty-fifty where the do goodness inwards inquiry appears to move an unemployment benefit. European Union jobseekers are entitled to claim benefits that facilitate access to the labour market, but non where the do goodness has a social assistance chemical factor together with primary aim of the do goodness is the preservation of dignity. In the Commission v UK instance the CJEU appear to take hold extended the exclusion to total social safety benefits, non exactly those amongst a social assistance element. Economically inactive European Union nationals must move self sufficient inwards monastic tell to take hold a right to reside, together with European Union nationals who are workers must demonstrate that their piece of work is genuine together with effective.

Furthermore, at that topographic point are some geographic limitations – complimentary displace of persons applies for people moving from the Overseas Countries or Territories associated amongst the Union (OCTs), to the EU, but does non apply to people moving from the European Union to OCTs as volition move explained below.

(2) Does European Union Law forbid temporal together with geographical exceptions?

It would move incorrect to remember that European Union police force has never allowed for some extensive geographical together with temporal exceptions amongst honor to the complimentary displace of people.

While the default regulation is that European Union police force applies inwards the territory of all the Member states, some exceptions be specially when it comes to overseas regions together with territories of relevant Member States (so much so that at that topographic point is a specialised acre of study known as EU Law of the Overseas). This agency for instance European Union complimentary displace police force does non uniformly apply to the whole of the territories of all the Member States. The relevant legal framework is rather complex. In a nutshell, at that topographic point is complimentary displace inwards i administration only. Inhabitants of the countries making upward the Netherlands Antilles may displace to whatsoever European Union Member State as they are Dutch together with European Union citizens, but European Union citizens from whatsoever other Member State do non take hold symmetrical rights to displace there. This is lawful provided that the authorities of the countries of the Dutch Caribbean Area apply the same restrictions on entry together with residence as to the nationals of the Member State amongst which it is associated together with the nationals of other European Union Member States (authors are grateful for Prof Kochenov’s insight on this issue. For to a greater extent than details on ‘one-way European Union complimentary movement’ amongst honor to the OCTs, reckon his article here).

But i does non take hold to move overseas to reckon territories where the application of European Union police force may vary dramatically depending on the discipline matter. To give a unmarried example, piece European Union rules on complimentary displace of goods apply to the Channel Islands, the rules relating to the complimentary displace of persons together with services do non (see Protocol No 3 to the UK’s Act of Accession). 

To brand matters fifty-fifty to a greater extent than complex, European Union complimentary displace rules may apply to nationals of non-EU Member States. For instance, they apply to Swiss nationals together with nationals of Norway, Republic of Iceland together with Principality of Liechtenstein (though banking concern notation that complimentary displace is inwards effect asymmetrical as far as Principality of Liechtenstein is concerned – reckon inquiry (7) below) which are non European Union Member States, yesteryear virtue – to simplify – of a number of bilateral agreements betwixt the European Union together with those countries. 

With honor to temporal exceptions to the complimentary displace of people inside the EU, i may for instance refer to the Treaties of accession of 2003, 2005 together with 2012, which included provisions allowing for transitional restrictions to move imposed yesteryear existing European Union Member States on workers from the novel European Union Member States that joined the European Union inwards 2004, 2007 together with 2013 respectively. To give a unmarried example, i may cite the chapter entitled ‘freedom of displace for persons’ of Annex XII to the 2003 Act of Accession regarding Poland. According to this text, the rules governing liberty of displace of workers together with liberty to render services shall apply discipline to a number of transitional provisions on the footing of which the together with then EU-15 could adopt national measures inwards monastic tell to regulate ‘access to their labour markets yesteryear Polish nationals’ or adopt measures derogating from the liberty to render services as far as companies established inwards Poland are concerned.

By contrast to most European Union Member States, the United Kingdom decided non to derogate from the complimentary displace of workers during the seven-year menstruation amongst honor to nationals of the countries that joined the European Union inwards 2004. In other words, the United Kingdom along amongst Republic of Ireland together with Sweden sovereignly decided to opened upward their labour markets straight from 1 May 2004 amongst honor to workers from countries such as Poland. The United Kingdom did still impose transitional provisions departing from the regulation of equal handling (see Question (3) below).

The United Kingdom also later decided to derogate from complimentary displace amongst honor to Republic of Bulgaria together with Romania when these ii countries joined the European Union inwards 2007. This meant that workers from the ii countries were non allowed, as a thing of principle, to piece of work freely inwards the United Kingdom earlier 1 Jan 2013, that is, 7 years after Republic of Bulgaria together with Romania had joined the EU. To oversimplify, Romanaian together with Bulgarian nationals wishing to piece of work inwards the United Kingdom had instead to secure the permission of the Home Office for doing so. The same has applied to Croation workers since Republic of Croatia joined the European Union inwards 2013.

(3) Has European Union Law led to an uncontrolled migration regime inside the EU?

The complimentary displace scheme agency that European Union nationals together with their household unit of measurement members who fulfil the weather condition inside European Union police force tin give the axe displace together with reside freely inside the EU, which agency that Member States cannot impose quotas, or add together additional weather condition through an immigration points scheme – unless some derogation from Article 45 TFEU were agreed to move necessary on pressing grounds of, e.g. populace policy.

Fulfilling the weather condition set yesteryear the EU, inwards monastic tell to exercise complimentary displace rights, typically agency existence a worker. This is thence non uncontrolled migration, but the agency of command is non immigration police force – it is the labour market, which is the key to a right to reside together with to remain inwards some other Member State. This is an of import indicate besides oftentimes ignored. Moving away from this labour marketplace seat based regulated shape of intra-EU migration command would necessarily hateful implementing instead a dirigiste bureaucratic shape of migration control. This would non move a cost-neutral policy decision. It would probable move to a greater extent than fourth dimension consuming together with costly than the electrical current market-based regulation scheme derived from European Union law. One good informed goodness suggested inwards this honor that ending the complimentary displace of people inwards the United Kingdom would create a ‘bureaucratic nightmare’.

As noted above, Member States take hold inwards recent years been permitted to moderate the effect of accession of novel states upon their labour markets yesteryear temporarily derogating from the complimentary displace of workers amongst regard to novel acceding states. While, as previously mentioned, the United Kingdom chose non to derogate from complimentary displace for the A8 enlargement inwards 2004, it imposed a ‘worker registration scheme’ according to which A8 workers were non entitled to whatsoever out of piece of work benefits until they had completed 12 months of registered work, together with if the registration was non completed correctly, all subsequent work, until the lapse of the transition measures, was to considered unlawful, non conferring a right to reside or counting towards permanent residence. The transition measures ended inwards 2011.

The UK’s derogation from the complimentary displace provisions inwards 2007 for the A2 States, Republic of Bulgaria together with Romania, involved adopting a worker authorisation scheme, which essentially required Bulgarian together with Romanaian nationals to apply for authorisation to piece of work on the footing of falling into an authorised category of work, ie specific sectors.  These transition measures ended on the 1 Jan 2014. The United Kingdom also derogated from the complimentary displace provisions on the accession of Republic of Croatia inwards 2013, together with instantly requires Croation nationals to obtain authorisation to work, together with limits such authorisation to skilled work.

There was some implication inwards the atomic number 82 upward to the United Kingdom plebiscite that membership of the European Union increased the ‘risk’ of unauthorised immigration and/or asylum seeking from 3rd countries. But European Union complimentary displace police force does non impact Member States’ (non-asylum) immigration regimes applied to non-EU nationals who are non household unit of measurement members of European Union nationals. The Common European Asylum System provides a agency for determining the province responsible for processing asylum claims, together with nether the problematic Dublin system this unremarkably agency that the province of kickoff entry is responsible – putting most pressure level on countries some the periphery of the EU, non the UK. Influenza A virus subtype H5N1 proposal for a reformed system for asylum burden sharing is inwards preparation, but the United Kingdom has secured an opt-out.  

(4) Does European Union Law forbid Member States from dealing amongst welfare tourism?

The brusk reply is a clear no. The CJEU has found that Member States are entitled to reserve the right to equal handling as regards welfare benefits to those amongst an European Union law-based right to reside.

To found such a right, European Union nationals must present that they tally i of the given categories inwards Directive 2004/38 – i.e. that they are workers, household unit of measurement members of workers self-sufficient, or students (who must declare self-sufficiency). European Union police force does non render a right to reside for persons who displace solely to claim benefits, together with creates only limited rights for jobseekers, who are non entitled to claim social assistance.

There is no entitlement for those who displace to seek piece of work to social assistance for the kickoff 3 months of residence; instead those who take hold been working elsewhere together with who are entitled to a contributory project seeking do goodness inwards their habitation State are entitled to convey it amongst them when they brand it inwards a host State, if they reckon the weather condition for ‘exporting’ their benefit.

As far as workers are concerned, European Union police force requires European Union national workers to move treated as amongst ain province nationals for the purposes of social together with revenue enhancement advantages. In some cases this agency that social safety (but non social assistance) benefits tin give the axe move exported to some other Member State, so long as the European Union national is a worker inwards the paying State. European Union nationals who do non autumn into these categories do non take hold a right to reside nether European Union law together with so do non take hold equal access to welfare benefits. 

Member States thus take hold some considerable liberty to bound do goodness entitlement to those considered to move contributors, together with so to avoid awarding benefits to those perceived to move do goodness tourists. It is thence misleading to suggest, as Theresa May did inwards August 2015, that European Union police force would guarantee a liberty to claim benefits.

However, inwards whatsoever give-and-take of the demand to ‘deal’ amongst welfare tourism, nosotros cannot ignore the absence of evidence that the job exists. If nosotros appear to the take empirical evidence on the costs/benefits of European Union immigration, e.g. the cost/benefit study yesteryear UCL, this suggests that European Union nationals are internet contributors, together with ONS figures present that inwards the UK, European Union nationals are less probable than United Kingdom nationals to move unemployed. The Department for Work together with Pensions responded to a European Union Commission query inwards 2013 saying that they had no evidence of do goodness tourism.  Oxford University’s Migration Observatory concluded that the to a greater extent than recent the migrant’s arrival, the to a greater extent than probable the positive contribution. One may finally cite a report yesteryear the Centre for Economic Performance (CEP) at the London School of Economics, published on eleven May 2016, inwards which its authors fence that ‘the empirical evidence shows that European Union immigration has non had significantly negative effects on average employment, wages, inequality or populace services at the local grade for the UK-born … At the national level, falls inwards European Union immigration are probable to atomic number 82 to lower living standards for the UK-born. This is partly because immigrants assist to bring down the deficit: they are to a greater extent than probable to piece of work together with pay revenue enhancement together with less probable to usage populace services as they are younger together with amend educated than the UK-born. It is also partly due to the positive effects of European Union immigrants on productivity.’

(5) Does European Union Law forbid Member States to forbid abuse together with fraud such as marriages of convenience?

European Union complimentary displace police force is regularly presented as preventing national authorities from ‘controlling’ European Union citizens seeking to displace together with reside inwards the UK. One must still emphasise that European Union police force cannot move relied upon inwards instance of abuse. In other words, European Union police force explicitly entitles Member States to ‘adopt the necessary measures to refuse, terminate or withdraw whatsoever right conferred yesteryear [EU complimentary displace law] inwards the instance of abuse of rights or fraud’ together with gives the instance of marriages of convenience (see Article 35 of Directive 2004/38).

To forbid whatsoever abusive usage of this ‘abuse clause’, whereby fellow member states mightiness unduly strip people of their rights, European Union police force also unsurprisingly provides that whatsoever stair out adopted yesteryear a national authorization on this footing must still move proportionate together with discipline to the green procedural safeguards such as access to judicial together with administrative redress procedures inwards the host Member State.

It would move incorrect thence to claim that European Union police force prevents Member States from tackling abusive reliance on European Union complimentary displace rights, which has been defined as whatsoever ‘artificial demeanour entered into solely with the purpose of obtaining the right of complimentary displace together with residence nether [EU] police force which, albeit formally observing of the weather condition set downward yesteryear [EU] rules, does non comply amongst the purpose of those rules.’ Fraud, that is, whatsoever deliberate deception or contrivance made to obtain the European Union right of complimentary displace together with residence may similarly move sanctioned yesteryear the relevant host Member State.

In practice, it is for each Member State to create upward one's heed how best to tackle fraud together with abuse of European Union complimentary displace rights. As noted above, European Union police force does non forbid Member States from investigating private cases where at that topographic point is a well-founded suspicion of abuse together with adopt necessary sanctions inwards cases of proved abuse. It is non unusual for national authorities to select non to move to the expense of doing so; a recent analysis on the Free Movement blog noted that ‘the latest figures propose there are rattling few investigations together with the Home Office is unwilling to release information on the resultant of the investigations.’ However, this lack of activity is sometimes attributed to the legal constraints of European Union complimentary displace police force (see e.g. the letter sent yesteryear David Cameron to Donald Tusk on 10 Nov 2015 citing inter alia ‘sham marriage’ to justify a rewriting of European Union complimentary displace rules). These legal constraints still only telephone telephone for a case-by-case assessment of whatsoever possible abuse of European Union complimentary displace rights together with for whatsoever private investigation to move carried out inwards accordance amongst key rights. In other words, European Union police force only requires Member States to comply amongst the dominion of police force inwards this area. 

(6) Does European Union Law forbid Member States from removing criminals from their territories?

Some British newspapers regularly seek to pigment the European Union as preventing the United Kingdom from denying entry, refusing residence or deporting citizens from other European Union Member States. This is plainly false. The European Union Treaties explicitly render that national authorities tin give the axe bound the exercise of European Union complimentary displace rights on grounds of populace policy, populace safety or populace health. The main slice of European Union legislation dealing amongst the rights of European Union citizens together with their household unit of measurement members to displace together with reside freely inside the European Union contains a whole chapter on ‘restrictions on the right of entry together with the right of residence on grounds of populace policy, populace safety or populace health’ (see Chapter VI of Directive 2004/38).

In other words, together with to cite the European Council, host Member States may ‘take the necessary restrictive measures to protect themselves against individuals whose personal demeanour is probable to stand upward for a genuine together with serious threat to populace policy or security. In determining whether the demeanour of an private poses a introduce threat to populace policy or security, Member States may take into concern human relationship yesteryear demeanour of the private concerned together with the threat may non e'er demand to move imminent. Even inwards the absence of a previous criminal conviction, Member States may human activity on preventative grounds, so long as they are specific to the private concerned.’ (Decision of the Heads of State or Government, coming together inside the European Council, concerning a novel village for the United Kingdom inside the EU – N.B. This statement only summarises the electrical current province of affairs notwithstanding that it appears inwards the instantly defunct ‘new settlement’ next the resultant of the UK’s Brexit referendum)

Compliance amongst the dominion of police force together with honor for human rights still hateful that European Union Member States must comply amongst a number of noun together with procedural safeguards provided yesteryear European Union law. When it comes for instance to populace policy or populace security, national measures justified on these grounds must move proportionate together with based exclusively on the personal demeanour of the private concerned, which must stand upward for a genuine, introduce together with sufficiently serious threat affecting i of the key interests of society. European Union police force also provides for a number of procedural safeguards. For instance, whatsoever determination to deny entry or expel an European Union citizen must move notified inwards writing together with include precise together with total information of the grounds on which the determination is based. In the absence of such safeguards, nil would forbid national authorities from behaving arbitrarily together with target sure individuals or groups for political or economical reasons.

While i may legitimately defend the view that the noun together with procedural safeguards provided yesteryear European Union police force are besides protective of European Union citizens together with their household unit of measurement members, critics inwards most cases neglect to brand clear the extent to which the electrical current safeguards should move lowered.

To fence still that the European Union Court of Justice has prevented the United Kingdom from deporting 50 criminals from other European Union Member States, as was argued yesteryear Vote Leave during the Brexit campaign, is simply false. The tape on this number has been set straight yesteryear Professor Steve Peers inwards this spider web log post.

(7) Does European Union Law forbid Member States from imposing a ‘brake’ on European Union immigration?

The brusk reply is aye as European Union police force currently stands. This for certain does non hateful that European Union Law provides for whatsoever ‘absolute’ right to displace together with reside freely inside the territory of European Union Member States. As described higher upward inwards our reply to Question 1, European Union complimentary displace rights tin give the axe only move exercised inwards accordance amongst the weather condition together with limitations set downward inwards the Treaties together with the legal instruments adopted thereunder. And piece the European Union Treaties render for full general derogations as regards the regulation of non-discrimination on grounds of nationality amongst honor to work inwards the populace service or activities connected amongst the exercise of official authority, whatsoever permanent quota or reliance on a ‘brake system’ regarding intra-EU migration would non move compatible amongst European Union law. Any full general ban on European Union workers existence treated as amongst national workers as regards employment, remuneration together with other weather condition of piece of work together with work would similarly breach European Union Treaties.

The compatibility of a provisional, temporary ‘emergency brake’ on equal handling amongst European Union Treaties was still assumed yesteryear the European Council when it agreed in conclusion Feb to force for the adoption of a novel ‘alert together with safeguard mechanism’ inwards monastic tell to assuage the concerns of the United Kingdom authorities together with then led yesteryear David Cameron (this mechanism formed component of the ‘new village for the United Kingdom inside the EU’ whose entry into strength was still subject on a determination yesteryear the United Kingdom to remain inwards the EU). This proposal was non for a brake on immigration, but on European Union national workers’ access to in-work benefits.

This mechanism was supposed to piece of work as follows:

(i)                 Any Member State facing an inflow of workers from other Member States of ‘an exceptional magnitude over an extended menstruation of time’ could avail of the novel warning together with safeguard mechanism;

(ii)               In monastic tell to move authorised yesteryear the Council to bound the access of newly arriving European Union workers to non-contributory in-work benefits for a total menstruation of upward to 4 years, the Member State was expected to demonstrate the existence of ‘an exceptional situation’ affecting ‘essential aspects of its social safety system’ or leading ‘to difficulties which are serious together with liable to persist inwards its work marketplace seat or are putting an excessive pressure level on the proper surgical operation of its populace services’.

(iii)             Assuming that such a demonstration had been offered, the Council could authorise the Member State concerned to restrain access to non-contributory in-work benefits to the extent necessary.

(iv)             Finally, whatsoever authorisation would take hold a limited duration together with the 4-year restriction on access to non-contributory in-work benefits could only apply to European Union workers newly arriving during a maximum menstruation of 7 years.

Contrasting legal views take hold been expressed regarding the compatibility of this novel safeguard mechanism amongst the European Union Treaties. In our opinion, this mechanism would take hold been vulnerable to legal activity as its compatibility amongst European Union Treaties is arguable inwards the absence of a Treaty amendment.

Notwithstanding this legal issue, nosotros take hold e'er found it hard to empathize how the United Kingdom could rationally avail itself of such mechanism considering that it together with then enjoyed the highest charge per unit of measurement of work inwards United Kingdom history. Furthermore, evidence of whatsoever negative impact of European Union piece of work immigration to the United Kingdom on vulnerable workers together with the sustainability of the United Kingdom welfare scheme was lacking (see this Financial Times article published on 22 Feb 2016). Furthermore, it has since emerged that the United Kingdom authorities did non inwards fact possess whatsoever hard evidence which would present the negative impact of European Union migration to the United Kingdom together with could justify the activity of the agreed ‘emergency break’ (see this article yesteryear the sometime deputy managing director of the policy unit’s inwards David Cameron’s government: ‘To move honest, nosotros failed to expose whatsoever evidence of communities nether pressure level that would satisfy the European Commission. At i indicate nosotros fifty-fifty asked the assist of Andrew Green at MigrationWatch, an organisation that has been critical of migration. But all he could render was an article inwards the Daily Telegraph nearly a infirmary motherhood ward inwards Corby. There was no hard evidence.’)

This European Union safeguard mechanism is, inwards whatsoever event, no longer on the table. The United Kingdom could still seek to bring together the EFTA together with remain component of the EEA shipping service Brexit, which would offering the reward of maximum access to the EU’s internal marketplace seat amongst the additional selection of availing of the special safeguard regarding complimentary displace of people set downward inwards Article 112 of the EEA agreement:

1. If serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist are arising, a Contracting Party may unilaterally take appropriate measures nether the weather condition together with procedures set downward inwards Article 113.

2. Such safeguard measures shall move restricted amongst regard to their orbit together with duration to what is strictly necessary inwards monastic tell to remedy the situation. Priority shall move given to such measures as volition to the lowest degree disturb the surgical operation of this Agreement.

3. The safeguard measures shall apply amongst regard to all Contracting Parties.

Assuming that the United Kingdom aims together with is able to remain component of the EEA after its eventual move out from the EU, triggering this provision amongst the view of limiting EEA labour immigration to the United Kingdom would non still move cost-free. Indeed, together with to the best of our knowledge, none of the contracting parties to the EEA has ever done so amongst honor to labour immigration if only because some other provision of the same understanding entitles parties negatively affected yesteryear safeguard measures to take ‘proportionate rebalancing measures’ (the special regime granted to Principality of Liechtenstein amongst regard to nationals of European Union Member States together with EFTA States, which volition move briefly mentioned below, is non straight based on Article 112 EEA).

In other words, should the United Kingdom as an EEA fellow member trigger this provision inwards monastic tell to impose quantitative limitations or restrictive rules regarding entry, residence together with work of EEA nationals inwards the UK, it could together with then move discipline to what would move essentially retaliatory measures focusing for instance on United Kingdom banks’ passporting rights (i.e. rights derived from European Union police force which enable banks based inwards the United Kingdom to offering financial services to the balance of the EEA without having to follow the regulations of the countries where they are offered). Furthermore, the United Kingdom would take hold to take that whatsoever dispute inwards this context may move referred to an arbitration panel (see Protocol 33 on arbitration procedures of the EEA Agreement).

In improver to this EEA full general safeguard mechanism, the European Union together with EFTA countries were able to handgrip a rather unique scheme regarding Principality of Liechtenstein amongst honor to complimentary displace of people, which was initially supposed to move provisional (see Protocol xv on transitional periods on the complimentary displace of persons) but ended upward becoming de facto permanent (for to a greater extent than details reckon this 2015 Communication from the European Commission). In a nutshell, due to its specific nature as a microstate amongst a population of 36,925 amongst an already unusually high percent of non-national residents together with employees, Principality of Liechtenstein was permitted to innovate quantitative limitations (aka a quota system) to command the number of EEA citizens wishing to take upward residence via a scheme limiting the number of residence together with short-term permits a year. In 2015, the Commission concluded that at that topographic point is ‘no demand to brand whatsoever changes to the electrical current rules’ until some other review of this specific scheme takes identify inwards 2019.

It has been suggested that a Liechtenstein-inspired solution may move the way frontwards as far as the United Kingdom is concerned (see the proposal yesteryear Vicky Ford, a Conservative MEP as reported inwards The Guardian). This is highly doubtful if only because the quota scheme agreed for Principality of Liechtenstein was explicitly justified on the footing of this country’s ‘specific geographic situation’ together with a total number of employees which is almost equal to the number of residents, 52 % of whom commute from neighbouring countries, a province of affairs inwards no way comparable to the UK’s (see Question 10 below for an overview of other possible options for the United Kingdom to consider).

(8) Does European Union Law only guarantee a right of permanent residence after v years?

There has been a fair amount of confusion on the European Union right of permanent residence inwards the UK. To set it briefly, it is regularly argued that such a right would only arise after v years of residence but this is non alone accurate.

This indicate is non tardily to explicate briefly. To set out with, it is right to province that European Union Law provides for a right of permanent residence for European Union citizens together with their household unit of measurement members after v years of continuous legal residence inwards the host European Union country. This right straight derives from European Union police force together with is explicitly mentioned inwards Directive 2004/38.

What is unremarkably misunderstood still is that European Union citizens together with their household unit of measurement members (irrespective of nationality) tin give the axe teach a right of permanent residence, inwards the feel of continued together with uncontested – but conditional - residence as presently as they displace together with reside inwards a different Member State. In other words, provided that an European Union citizen maintains his/her status as worker or self-employed person, or that he/she take hold sufficient resources for himself/herself (and eventual household unit of measurement members) as good as a comprehensive sickness insurance cover, European Union police force guarantees a right of continued residence inwards the host Member State.

The added value of the novel right of permanent residence after v years of residence set downward inwards Directive 2004/38 lies inwards the fact that i time it is obtained, this right is no longer discipline to the weather condition previously mentioned.

To summarise, European Union police force guarantees a conditional right of permanent residence earlier v years together with a nearly unconditional i after v years (it may move lost through continuous absence from the province for over 2 years; together with at that topographic point are powers to take criminals from the province as discussed inwards the reply to inquiry (6) above).

To claim that only those having resided inwards the United Kingdom for to a greater extent than than v years are entitled to claim a right of permanent residence misrepresents European Union police force as it stands. This is an of import indicate considering that it is regularly reported inwards the press that the United Kingdom authorities may only seek to allow European Union citizens amongst a right of permanent residence to remain inwards the United Kingdom yesteryear the fourth dimension the United Kingdom leaves the EU, piece those amongst allegedly no permanent residence right yesteryear together with then would move offered an ‘amnesty’ (see able to rely upon the Vienna Convention’s protection of ‘acquired rights’ to enable them to remain together with to protect their status there.

Legally speaking, this is problematic together with highly unlikely. The Convention inwards inquiry – the Vienna Convention on the police force of the Treaties – contains a provision, Article 70(b), which states that the termination of a treaty:

“Does non impact whatsoever right, obligation or legal province of affairs of the parties created through the execution of the treaty prior to its termination.”

However, this provision refers to rights of ‘the parties’. The parties to the European Union Treaties are Member States, not individuals. It was thence incorrect for Gisela Stuart or Boris Johnson to imply that Article lxx of the Vienna Convention straight addresses private complimentary displace rights acquired Pre-Brexit. For instance, the International Law Commission had for instance made clear that this provision is simply non concerned amongst the acquired or vested rights of individuals. This is why Jean-Claude Piris (former General Director of the Legal Service of the Council of the EU) described the Vienna Convention claim as a ‘new legal theory’ amongst no ‘legal back upward inwards the Treaties’, which must move disregarded as it ‘would atomic number 82 to absurd consequences’.

To summarise, piece international police force does recognise the notion of ‘acquired rights’, at that topographic point is, as observed yesteryear Professor Vaughan Lowe QC a ‘general understanding that the category of ‘acquired rights’ does non extend beyond belongings rights and certain contractual rights’, which agency that the European Union ‘rights to live, work, have medical attention together with retire inwards an EU Member State other than one’s ain (or for companies, the right of establishment) would non move included inside that category.’

In whatsoever case, claiming a continued right of residence is a claim for a introduce together with time to come right, non an acquired one. It would move unusual were it possible to claim continued reliance upon European Union Treaties which take hold ceased to apply, given that Article lxx (a) of the Convention states that the termination of the Treaty “Releases the parties from whatsoever obligation farther to perform the treaty”. The sorts of yesteryear State rights that mightiness move protected yesteryear the Convention could move that the European Union could non demand that the United Kingdom pay dorsum Structural Funds paid to correspond amongst yesteryear periods during which the United Kingdom was a fellow member of the EU, where those funds were paid inwards goodness legal order.

And it is worth pointing out that the Convention is a United Nations instrument, together with at that topographic point is niggling Earth for supposing that it would move readily actionable to claimants facing negative administrative decisions, since it does non create direct rights. Nor is it able to trounce both European Union together with national laws inwards other Member States. If it were able to do so, that would heighten meaning questions of supremacy, sovereignty together with transparency. 

During the class of the campaigns, Matthew Elliot of Vote Leave also suggested that the European Union Charter of Fundamental Rights would protect British nationals’ rights to remain inwards the EU. However, (a) the Charter is soundless on the thing of rights of ex-EU nationals; (b) it does non create whatsoever additional rights non already inwards existence inside European Union law; together with (c) The Charter is an European Union instrument. If the United Kingdom move out understanding includes provisions on United Kingdom nationals inwards the European Union (and European Union nationals inwards the UK), together with then those provisions must move interpreted inwards accordance amongst the Charter – e.g. inwards accordance amongst a right to household unit of measurement life. Outside of the agreement, these individuals may anyway autumn inside the orbit of European Union law, e.g. through having married a national of a Member State who has exercised their right to complimentary movement, or existence the primary carer of a host State national. In whatsoever event, if the United Kingdom was no longer fountain yesteryear the Charter as a non-member, together with then United Kingdom nationals inwards the European Union seeking to rely upon it would take hold to present that their province of affairs barbarous inside the orbit of European Union police force (such as European Union legislation on migration from non-EU countries) for the Charter to apply, together with and then present that a key right covered yesteryear the Charter was engaged.

The key indicate hither is that international police force relating to ‘acquired rights’ does non offering whatsoever enterprise footing for a claim to retain European Union rights of residence post-Brexit. And this is why the United Kingdom government, without mentioning the Vienna Convention, has decided that the criteria which would ‘enable European Union citizens to remain inwards the Great Britain next move out from the European Union volition depend on the resultant of the negotiations together with the orbit of whatsoever reciprocal agreements concerning British citizens who alive inwards other fellow member states.’ (Lord Keen of Elie, 29 June 2016)

While at that topographic point are no clear legal guarantees for either the residence rights of United Kingdom nationals inwards the European Union or of European Union nationals inwards the UK, at that topographic point are nevertheless rigid legal arguments inwards favour of offering protections to European Union nationals inwards the UK. The ‘bargaining chip’ stance is dehumanising together with ethically problematic; it puts the lives of nationals from other European Union countries living inwards the United Kingdom ‘on hold’ for an indefinite menstruation of fourth dimension (with rattling practical consequences such as increased difficulties to teach loans or mortgages, non to cite the anxiety it has created). This is why, for instance, Michael Howard, the sometime Conservative leader, called on Mrs May to EU nationals could move deported retrospectively (i.e. fifty-fifty if they arrived earlier the United Kingdom leaves the EU) may, inwards circumstances where their right to household unit of measurement life was at stake, move opened upward to legal challenge on the footing of the UK’s Human Rights Act. See e.g. Matthew White’s shipping service on ‘When tin give the axe European Union citizens move expelled from the United Kingdom after Brexit?’ available here together with Camino Mortera-Martinez & John Springford’s CER insight slice ‘Britain volition combat to brand European Union migrants ‘go home’’ available here.  Equally, United Kingdom citizens inwards the remaining European Union could invoke the right to household unit of measurement together with private life inwards the European Convention on Human Rights, as good as rights inwards national constitutions, fifty-fifty if they were non covered yesteryear European Union immigration police force or transitional arrangements. It should move noted still that winning an Article 8 ECHR claim inwards the immigration courts it is non straightforward.

(10) What are the main options available to the United Kingdom government?

It is non yet alone clear whether the United Kingdom authorities wishes to revise or completely reject the application of electrical current European Union rules inwards the UK. Influenza A virus subtype H5N1 consummate rejection would non move compatible amongst an extensive access to the EU’s unmarried marketplace seat à la norvégienne (see below for to a greater extent than details on this model).

There is still a large spectrum of different complimentary displace options that are, inwards theory, possible for the United Kingdom to consider but the default (political) regulation may move summarised as follows: The to a greater extent than extensive the United Kingdom restrictions on the complimentary displace rights of European Union citizens together with household unit of measurement members, the less extensive the UK’s access to the EU’s unmarried marketplace seat is probable to be. This was the indicate made yesteryear the German linguistic communication Chancellor, Angela Merkel, when she stated that total access to the European unmarried marketplace seat depended on whether on the credence of the EU’s 4 freedoms, including the liberty of displace of people: “If Great Britain says no, it can’t teach total access to the European unmarried market”.

Assuming the United Kingdom wishes to retain as much access to the European unmarried marketplace seat as possible, it would together with then take hold to seek membership of the EEA – the so-called Kingdom of Norway model. This involves non existence an European Union member, but applying much of European Union law, including provisions on complimentary movement, equal handling on the Earth of nationality, together with social safety coordination. Some take hold suggested, slightly farther along the spectrum, a Norway-minus model, that adapts the EEA model, to allow for to a greater extent than restricted displace of workers, maybe inwards render for ‘a fleck less unmarried market’ access. Alternatively, the United Kingdom could instead bring together the EEA together with seek to trigger its safeguard mechanism as noted higher upward inwards our reply to inquiry 7.

The Swiss bilateral understanding model is some other selection that involves free movement but permits greater restrictions on equal handling amongst regard to welfare benefits. The model is complicated, relying on a ‘patchwork’ of agreements that demand regular updating. The human relationship is non alone stable – calls to renegotiate the complimentary displace provisions take hold been rejected yesteryear the EU; a Swiss quota initiatory has soured the EU-Swiss relationship, inwards the lite of which the Swiss authorities appears to move considering a second referendum which could enquire voters to create upward one's heed betwixt the unilateral imposition of curbs on European Union migrants together with maintenance of Switzerland’s electrical current access to the EU’s unmarried marketplace seat (another alternative programme is to sidestep ‘quota inwards favour of giving electrical current Swiss residents labor-market precedence’ but this thought is unlikely to move agreed yesteryear the EU).

The Turkish scheme is much closer to the other destination of the spectrum, since at that topographic point is no complimentary displace as such, but at that topographic point are some special arrangements, such as the accrual of increasingly ‘equal’ work rights. Turkish workers legally employed inwards the European Union are entitled to the same working weather condition as European Union nationals, together with also take hold a sliding scale of rights: after i twelvemonth of legal work they are entitled to take hold their piece of work permit renewed if a project is available; after 3 years of legal work they are entitled to switch employers together with respond to other project offers inside the same occupation; after 4 years of legal work they take hold complimentary access to whatsoever paid work inwards that European Union country. Borrowing from this approach could involve heavy restrictions – such as requirements for residence together with piece of work permits – but allowing European Union workers, i time they had been accepted into the UK, to accrue residence, work together with social rights during their fourth dimension here.

Or it is possible to envisage advertizement hoc models at different points along the spectrum. One such is a ‘job-first’ model. This is also non without problems. It is non clear that it would bring down immigration (which is the apparent purpose), but would simply identify the recruitment physical care for i stair back. This could give to a greater extent than powerfulness to gang-masters, who already take hold the mechanism for cross-border recruitment inwards place, together with are oftentimes linked to employers who render tied accommodation, together with carry their workers to together with from the identify of work. This could atomic number 82 to European Union nationals existence imported inwards groups, together with living quite controlled lives, segregated from much of the United Kingdom population.

The other scheme evidently debated yesteryear the United Kingdom cabinet, which i may label ‘targeted piece of work permit system’, is similarly problematical. As reported yesteryear the Financial Times, this scheme would ‘most probable allocate a set number of visas yesteryear sector’ for highly skilled workers inwards receipt of a project offer. By contrast, unskilled workers could only gain entry into the United Kingdom on the footing of a temporary workers scheme, which would grant European Union unskilled workers access to the United Kingdom for a fixed menstruation of fourth dimension amongst no accrued residency rights. Such a ‘targeted piece of work permit system’ still assumes that i tin give the axe clearly define what is an ‘unskilled worker’ as opposed to an ‘highly skilled’ one. It would move incompatible amongst access to the European unmarried marketplace seat inwards a similar way to Kingdom of Norway or Switzerland together with would move incredibly administratively complex.

Others take hold suggested the devolution of immigration policy as far as European Union nationals are concerned. This would hateful for instance giving Scotland, Northern Republic of Ireland but also London together with Gibraltar the right to move on to apply electrical current complimentary displace rules to European Union nationals together with household unit of measurement members (EEA membership for Scotland would brand this a compulsory characteristic as rightly noted inwards this Financial Times article yesteryear Martin Sandbu) or alternatively, to apply a different but to a greater extent than liberal immigration scheme on a regional footing (see e.g. the ‘regional visa system’ proposal made yesteryear the City of London which is available here). However, it is hard to reckon how such systems could move made tenable, without introducing intra-national migration controls.

In our opinion, the United Kingdom authorities should non seek to fundamentally undermine the electrical current EU’s labour market-based scheme of intra-EU migration control, where evidence suggests that the scheme works good for the UK – a scheme which both the Japanese government together with the US Chamber of Commerce take hold described as key for attracting together with maintaining unusual investment inwards the UK. Instead of devising cumbersome together with costly alternative schemes, it may move to a greater extent than appropriate to instead aim to revisit the inquiry of restrictions already permitted inside European Union law, piece also questioning whether the ‘mischief’ that these proposals are intended to address genuinely exists.

Barnard & Peers: chapter 13, chapter 27

Photo credit: LSE blog

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