“We shouldn’t create a misleading impression 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 EU Public Law at Middlesex University London

This article clarifies common misunderstandings about EU free movement rules, often found in British media. We believe much criticism targets a distorted view of the actual system.

The UK shows a desire to restrict EU freedom of movement, yet misinterpretations about these rules persist. Claims of the UK lacking control over EU immigration are inaccurate, just as some EU actors wrongly present freedom of movement as absolute and inseparable from the free movement of goods, capital, and services.

This article addresses these and other points through ten questions and answers, offering a clear legal overview of EU free movement law. We conclude by outlining potential models and options for the UK’s future relationship with the EU, as outlined in Article 50 of the Treaty on European Union (TEU).

(1) Does EU law guarantee an absolute right to move and reside anywhere in the EU?

No. The right to free movement within the EU has limitations.

Article 45(3) of the Treaty on the Functioning of the European Union (TFEU) states that the rights to work, seek employment, reside, and stay in another Member State after employment are subject to limitations for reasons of public policy, security, or health. National authorities can use these grounds to restrict EU workers on a case-by-case basis. Gareth Davies suggests that underutilizing permitted restrictions, especially the flexible public policy limitation, might have contributed to the controversy surrounding free movement in the UK.

Article 45(4) TFEU exempts public service employment from these provisions, allowing Member States to reserve nationally sensitive roles for their nationals. However, non-nationals already employed cannot be discriminated against.

Similarly, Articles 51 and 62 TFEU allow for derogation regarding activities linked to official authority for self-employed individuals and service providers. Discrimination is permitted only for positions directly related to official authority. Therefore, a blanket ban on non-UK academics advising UK public bodies on Brexit-related matters would be unlawful.

EU Treaties clearly state that free movement rights are not absolute and include permanent exceptions. The Court of Justice has established guidelines to prevent Member States from abusing these exceptions.

Secondary EU legislation further defines the free movement rights outlined in the EU Treaty, adding specific conditions and limitations. Importantly, Directive 2004/38 (“EU citizens’ Directive”) states that EU nationals cannot unreasonably burden the host Member State’s public purse, addressing concerns about benefit tourism. The Directive outlines categories of individuals with the right to reside in a host Member State for over three months, primarily workers, self-employed individuals and their families, students, and self-sufficient individuals. Students require health insurance and must declare sufficient resources.

Recent CJEU rulings clarified these limitations. The Dano case established that moving solely to claim benefits does not grant residency rights. The Brey case affirmed Member States’ right to link residency to social security benefits, including those beyond social assistance. They can set conditions for EU nationals, preventing economically inactive individuals from claiming benefits.

The Alimanovic and Garcia Nieto cases emphasized that EU nationals cannot access social assistance during their first three months or as jobseekers, even if the benefit appears to be unemployment-related. Jobseekers can access benefits that help with job seeking but not those primarily aimed at preserving dignity. The Commission v UK case extends this exclusion to all social security benefits, not just those with a social assistance component. Economically inactive EU nationals must be self-sufficient to reside legally, and working EU nationals must prove their work is genuine and effective.

Additionally, free movement of persons applies from Overseas Countries and Territories (OCTs) to the EU but not vice versa.

(2) Does EU law prevent temporal and geographical exceptions?

EU law allows for geographical and temporal exceptions regarding the free movement of people.

While generally applicable throughout all Member States’ territories, exceptions exist, particularly for overseas territories. For instance, EU free movement law doesn’t uniformly apply to all Member States’ territories. This complex legal framework often results in one-way free movement. For example, inhabitants of the Dutch Caribbean can move to any EU Member State, but citizens from other Member States don’t have reciprocal rights, as long as restrictions on entry and residence are applied equally to all EU Member States.

However, variations in EU law application exist even within mainland Europe. For example, EU rules on the free movement of goods apply to the Channel Islands, but those regarding the free movement of people and services do not.

Adding complexity, EU free movement rules can apply to non-EU nationals based on bilateral agreements. For example, Swiss nationals and those from Norway, Iceland, and Liechtenstein (with asymmetry for Liechtenstein) are subject to these rules.

Temporal exceptions exist within the EU, such as the 2003, 2005, and 2012 accession treaties. These allowed existing EU Member States to impose temporary restrictions on workers from new member states. For example, the 2003 Act of Accession allowed existing EU-15 members to regulate labor market access for Polish nationals and impose exceptions for service providers from Poland.

Unlike most EU Member States, the UK didn’t restrict the free movement of workers from countries joining in 2004, like Poland, choosing to open its labor market from May 1, 2004, along with Ireland and Sweden. However, the UK did implement transitional provisions deviating from the principle of equal treatment.

Conversely, the UK restricted free movement for Bulgaria and Romania in 2007, requiring their workers to obtain permission to work in the UK until 2013. This also applies to Croatian workers since their 2013 accession.

(3) Has EU law led to an uncontrolled migration regime within the EU?

The free movement system, while allowing movement and residence for EU nationals and their families who meet specific criteria, does not mean uncontrolled migration. Member States cannot impose quotas or additional conditions like a points-based immigration system unless justified by grounds such as public policy under Article 45 TFEU.

The primary condition for free movement is being a worker, meaning the labor market, not immigration law, controls intra-EU migration. Shifting away from this market-based approach would necessitate a bureaucratic system, likely increasing costs and time compared to the current model. Experts have warned that ending free movement in the UK could create a “bureaucratic nightmare.”

As mentioned earlier, Member States have been allowed to temporarily restrict the free movement of workers from newly acceding states to manage labor market impacts. While the UK didn’t apply this to the 2004 A8 enlargement, it implemented a “worker registration scheme.” This scheme denied A8 workers out-of-work benefits for their first 12 months of registered work. Failure to register correctly rendered all subsequent work unlawful, impacting residency rights. These measures ended in 2011.

In 2007, the UK restricted free movement for Bulgaria and Romania, requiring work authorization and limiting it to specific sectors. These restrictions were lifted in 2014. Croatian nationals, since their 2013 accession, also need authorization for skilled work.

Claims that EU membership increases unauthorized immigration or asylum seeking from non-EU countries are misleading. EU free movement law doesn’t affect Member States’ immigration policies for non-EU nationals who aren’t family members of EU nationals.

The Common European Asylum System, including the controversial Dublin system, manages asylum claims. This system often burdens border countries, not the UK, as the country of first entry is usually responsible for processing. While a reformed burden-sharing system is being considered, the UK has an opt-out.

(4) Does EU law prevent Member States from dealing with welfare tourism?

No, EU law does not prevent Member States from addressing welfare tourism. The CJEU has affirmed the right of Member States to limit equal access to welfare benefits to individuals with an EU law-based right to reside.

To establish this right, EU nationals must demonstrate they fit a category outlined in Directive 2004/38, such as being a worker, family member of a worker, self-sufficient, or a student declaring self-sufficiency. Moving solely to claim benefits is not a basis for residency under EU law, and jobseekers have limited rights, excluding social assistance.

Individuals seeking work cannot access social assistance for their first three months. Those eligible for contributory jobseeking benefits in their home country can “export” them to the host Member State if they meet certain conditions.

EU law mandates equal treatment for EU national workers and their host state counterparts regarding social and tax advantages. This includes the “export” of certain social security benefits (excluding social assistance) under specific conditions. EU nationals outside these categories lack residency rights and, consequently, equal access to welfare benefits.

Member States have significant flexibility in restricting benefit entitlement to contributors, mitigating welfare tourism concerns. Therefore, assertions like Theresa May’s 2015 claim that EU law guarantees access to benefits are misleading.

Importantly, discussions about addressing welfare tourism should acknowledge the lack of evidence supporting its existence. Studies, including a cost/benefit analysis by UCL, show that EU nationals are net contributors. ONS data reveals that EU nationals in the UK are less likely to be unemployed than UK nationals. The Department for Work and Pensions, responding to a 2013 EU Commission inquiry, stated it had no evidence of benefit tourism.

Oxford University’s Migration Observatory found that more recent migrants contribute more positively. A 2016 report by the Centre for Economic Performance (CEP) concluded that EU immigration hasn’t significantly impacted average employment, wages, inequality, or public services for UK-born residents. Additionally, the report suggests that reducing EU immigration could negatively impact UK living standards as EU immigrants contribute to deficit reduction through higher employment, tax contributions, and lower public service usage due to their younger age and higher education compared to UK-born residents.

(5) Does EU law prevent Member States from preventing abuse and fraud such as marriages of convenience?

Contrary to claims that EU law hinders control over EU citizens seeking residency, it explicitly allows Member States to address abuses like marriages of convenience. Article 35 of Directive 2004/38 permits Member States to “adopt the necessary measures to refuse, terminate or withdraw any right conferred by [EU free movement law] in the case of abuse of rights or fraud,” including marriages of convenience.

To prevent misuse of this clause, EU law mandates that any measures taken must be proportionate and uphold procedural safeguards such as access to legal and administrative redress in the host Member State.

Therefore, EU law does not prevent Member States from tackling abusive reliance on EU free movement rights, defined as “artificial conduct entered into solely with the purpose of obtaining the right of free movement and residence under [EU] law,” even if technically fulfilling the requirements. Member States can sanction fraud, meaning deliberate deception to obtain EU free movement and residence rights.

While Member States can investigate suspected abuse and sanction proven cases, they often choose not to bear the cost. For instance, a Free Movement blog analysis noted a low number of investigations and the Home Office’s reluctance to disclose investigation outcomes. This inaction is sometimes attributed to EU free movement law’s legal constraints. However, these constraints merely require a case-by-case assessment of potential abuses, conducted lawfully and respecting fundamental rights. Essentially, EU law requires Member States to adhere to the rule of law in this context.

(6) Does EU law prevent Member States from removing criminals from their territories?

Contrary to some British newspapers’ portrayal of the EU as hindering the UK’s ability to control entry, residency, and deportation of other EU citizens, the EU Treaties explicitly grant national authorities the power to restrict free movement rights based on public policy, security, or health.

Chapter VI of Directive 2004/38, dedicated to “restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health,” underscores this.

The European Council affirms that host Member States can implement measures to protect themselves from individuals posing genuine and serious threats to public policy or security. This includes considering past conduct and threats that aren’t necessarily imminent. Preventative action based on individual-specific grounds is permissible even without prior criminal convictions.

However, EU law mandates compliance with the rule of law and human rights, requiring Member States to adhere to substantive and procedural safeguards. Public policy or security measures must be proportionate, based solely on the individual’s conduct, and address a genuine, present, and sufficiently serious threat to fundamental societal interests.

Procedural safeguards are also in place. For example, denials of entry or expulsion of EU citizens require written notification detailing the grounds for the decision. These safeguards prevent arbitrary actions against individuals or groups based on political or economic motivations.

While some may argue for weakening these safeguards, critics rarely specify the desired extent of such changes.

Claims, like those made by Vote Leave during the Brexit campaign, that the EU Court of Justice prevented the UK from deporting 50 criminals from other EU Member States are false. Professor Steve Peers debunked this claim in a blog post.

(7) Does EU law prevent Member States from imposing a ‘brake’ on EU immigration?

Under current EU law, imposing a ‘brake’ on EU immigration is not permitted. However, this doesn’t translate to an absolute right to move and reside freely within EU Member States. As discussed earlier, exercising free movement rights is subject to the conditions and limitations outlined in EU Treaties and their legal instruments.

While EU Treaties allow derogations regarding non-discrimination based on nationality for public service employment or activities linked to official authority, permanent quotas or a ‘brake system’ for intra-EU migration contradict EU law. A blanket ban preventing equal treatment for EU and national workers regarding employment, pay, and other work conditions would also breach EU Treaties.

However, the European Council, in an attempt to address UK concerns, proposed a temporary ’emergency brake’ on equal treatment. This mechanism, part of the ’new settlement for the UK within the EU’, aimed to limit newly arrived EU workers’ access to non-contributory in-work benefits for up to four years. However, this proposal, contingent on the UK remaining in the EU, is now irrelevant due to the Brexit outcome.

This mechanism, intended to address “exceptional situations” with serious and persistent difficulties in the labor market or public services, faced criticism for its arguable compatibility with EU Treaties and lack of supporting evidence. The UK’s then-high employment rate and lack of concrete negative impact from EU work immigration on vulnerable workers or the welfare system further weakened its justification. Subsequent revelations revealed the UK government lacked hard evidence to support this ’emergency brake.’

While no longer an option, the UK, by joining the EFTA and remaining in the EEA post-Brexit, could utilize Article 112 of the EEA agreement. This article allows for unilateral safeguard measures by a Contracting Party facing serious and persistent economic, societal, or environmental difficulties.

However, triggering this provision to restrict EEA labor immigration would likely result in retaliatory measures from other EEA members, potentially impacting UK banks’ passporting rights within the EEA. Dispute resolution would fall under an arbitration panel according to Protocol 33 of the EEA Agreement.

Beyond the EEA safeguard, a unique arrangement exists for Liechtenstein due to its microstate status and high non-national resident and employee population. This arrangement allows for quantitative limitations on EEA citizens’ residency through a quota system for residence and short-term permits. The European Commission, as of 2015, saw no need for changes, with the next review scheduled for 2019.

Proposing a Liechtenstein-inspired solution for the UK is unrealistic due to their vastly different contexts. Liechtenstein’s quota system stemmed from its unique geographical situation and specific labor market characteristics, unlike the UK.

(8) Does EU law only guarantee a right of permanent residence after five years?

Contrary to common claims, EU law does not exclusively grant permanent residence after five years. While it’s true that EU law, under Directive 2004/38, provides permanent residence for EU citizens and their families after five years of continuous legal residence, this is not the whole picture.

EU citizens and their families can acquire a form of permanent residence—continued and uncontested, though conditional—immediately upon moving to another Member State. Maintaining worker or self-employed status or demonstrating sufficient resources and comprehensive health insurance secures continued residence in the host Member State under EU law.

The five-year permanent residence right under Directive 2004/38 removes the aforementioned conditions. In essence, EU law guarantees conditional permanent residence before five years and a largely unconditional one after (subject to exceptions like continuous absence exceeding two years or criminal activity).

Claims that only those residing in the UK for over five years are eligible for permanent residence misrepresent EU law, especially given reports of the UK government’s potential plans to grant stay only to EU citizens with permanent residence post-Brexit. This approach disregards the rights of EU workers who have the right to reside permanently from day one, provided they maintain their worker status. It might be more accurate to refer to “Article 16” (of the EU citizens’ Directive) or “unconditional” permanent residence instead of simply “permanent residence.”

Moreover, the five-year threshold for unconditional residency has exceptions. For example, those retiring in the host Member State after three years (including the last twelve months working there), those forced to stop working due to permanent incapacity after two years, and those incapacitated due to work-related accidents or occupational diseases (with entitlement to relevant benefits) have no duration requirement. Therefore, “clear cut” residency rights are not limited to those residing for five years.

Furthermore, using the term “amnesty” in this context is legally inaccurate and creates a misleading image of legally residing and working EU nationals. Amnesty refers to pardoning convicted individuals or a temporary suspension of legal action for specific offenses, neither of which applies to EU nationals exercising their free movement rights legally in the UK.

(9) Would EU law or international law protect ‘acquired’ free movement rights following a British exit from the EU?

This question revolves around whether rights granted under EU law would be protected if the UK removes them from its domestic law after formally withdrawing from the EU. Interestingly, the UK government’s legal counsel, during litigation on whether triggering Article 50 needs parliamentary approval, argued that EU nationals’ rights wouldn’t automatically disappear upon exiting the EU as these rights are integrated into domestic law. While the UK could theoretically retain these rights post-Brexit, the question remains what happens if it chooses not to.

There were suggestions that the Vienna Convention’s protection of “acquired rights” could safeguard the residency status of both UK citizens in the EU and EU nationals in the UK post-Brexit.

This claim is legally flawed. The relevant provision in the Vienna Convention on the Law of Treaties, Article 70(b), states that treaty termination “does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.” However, “the parties” refers to Member States, not individuals. Therefore, implying that Article 70 directly addresses individual free movement rights acquired pre-Brexit is inaccurate.

The International Law Commission clarifies that this provision does not pertain to individual acquired or vested rights. Jean-Claude Piris, former Director-General of the EU Council’s Legal Service, dismissed the Vienna Convention argument as a baseless “new legal theory” with “absurd consequences.”

While international law recognizes “acquired rights,” it primarily applies to property and certain contractual rights, not EU rights like living, working, receiving healthcare, or retiring in another Member State.

Furthermore, claiming a continued right of residence seeks a present and future right, not an acquired one. Relying on defunct EU Treaties contradicts Article 70(a) of the Convention, stating that termination “releases the parties from any obligation further to perform the treaty.” Past state rights protected by the Convention could include preventing the EU from demanding repayment of legally granted Structural Funds during the UK’s membership.

As a UN instrument, the Convention doesn’t grant direct rights and wouldn’t supersede EU or national laws, making it an ineffective tool for individuals facing negative administrative decisions. Were it to override national and EU laws, it would raise serious questions about sovereignty, supremacy, and transparency.

Claims that the EU Charter of Fundamental Rights would protect British nationals’ right to stay in the EU are also unfounded. The Charter doesn’t address ex-EU nationals’ rights, create new rights beyond existing EU law, and is itself an EU instrument. While the Charter could influence the interpretation of any UK-EU exit agreement provisions regarding UK nationals in the EU (and vice-versa), it would only apply to UK nationals if their situation falls under the scope of EU law.

Essentially, international law on “acquired rights” offers no legal basis for retaining EU residence rights post-Brexit. Recognizing this, the UK government has acknowledged that EU citizens’ right to remain in the UK after Brexit hinges on negotiation outcomes and reciprocal agreements for British citizens residing in other Member States.

While lacking clear legal guarantees, strong ethical and practical arguments support protecting EU nationals’ rights in the UK. The “bargaining chip” approach is dehumanizing, creating significant uncertainty for EU nationals residing in the UK.

However, David Davis’s suggestion of potential retrospective deportation of EU nationals, even those arriving before Brexit, could face legal challenges under the UK’s Human Rights Act, especially if it violates the right to family life. Conversely, UK citizens in the EU could invoke the right to family and private life under the European Convention on Human Rights and national constitutions, even without coverage under EU immigration law or transitional arrangements. However, winning such claims, especially in immigration courts, is not guaranteed.

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

The UK government’s stance on EU free movement rules—revision or complete rejection—remains unclear. However, complete rejection clashes with maintaining extensive access to the EU single market, similar to Norway’s model.

While a range of options theoretically exists, the underlying principle is: stricter restrictions on EU citizens’ free movement rights likely mean less access to the EU single market. German Chancellor Angela Merkel highlighted this, stating that full single market access depends on accepting all four EU freedoms, including the free movement of people.

Prioritizing single market access would require joining the EEA—the Norway model. This entails applying most EU law, including free movement, non-discrimination, and social security coordination, without being an EU member. A “Norway-minus” model, allowing for more restrictive worker movement in exchange for reduced single market access, has also been suggested. Alternatively, the UK could join the EEA and utilize its safeguard mechanism, as explained earlier.

The Swiss model, with its bilateral agreements, allows free movement but with stricter restrictions on equal treatment regarding welfare benefits. However, this complex system relies on a network of agreements requiring constant updates and faces challenges, as seen with the EU’s rejection of renegotiating free movement provisions and the controversy surrounding Switzerland’s quota initiative.

At the other end of the spectrum lies the Turkish model, lacking free movement but with specific arrangements. For example, legally employed Turkish workers in the EU have the same working conditions as EU nationals and progressively gain more rights, including work permit renewals, employer switching, and free access to paid employment after specific durations. This approach, involving strict initial restrictions but progressive rights accrual, could be adapted for EU workers in the UK.

Ad hoc models are also possible. A “Continental Partnership” proposes a reciprocal quota system—the UK and EU imposing quotas on each other’s citizens. However, practicality and administrative challenges arise due to existing cross-border populations, migration flows, and potential status fluidity. Implementing an EU-wide quota system also raises fairness concerns regarding quota allocation and potential restrictions on UK nationals’ movement within the EU. Furthermore, Article 79 TFEU grants individual Member States the right to decide on quotas for non-EU workers.

“Preferential movement,” allowing free movement for higher-income or skilled individuals while imposing quotas on others, aligns more with public sentiment than economic evidence. However, establishing and managing this dual immigration system would be complex, and basing policy on public perception rather than evidence, especially given potential media bias, is risky.

A “job-first” model, while seemingly intuitive, may not effectively reduce immigration but rather shift the recruitment process, potentially empowering exploitative actors like gang masters. This could lead to controlled and segregated living conditions for EU nationals.

The “targeted work permit system,” another option, involves sector-specific visas for highly skilled workers and temporary work schemes with no residency rights for unskilled workers. This model struggles with defining “unskilled” versus “highly skilled” work, restricts access to the European single market, and poses significant administrative hurdles.

Devolving immigration policy for EU nationals, granting regions like Scotland, Northern Ireland, London, and Gibraltar the right to maintain or adapt free movement rules, faces challenges in avoiding internal migration controls. EEA membership for Scotland, for example, would necessitate maintaining free movement.

Instead of dismantling the existing EU labor market-based intra-EU migration system, which evidence suggests benefits the UK, the UK government should re-evaluate permitted restrictions within the current framework and critically assess the actual existence of the issues these proposals aim to solve. Ignoring evidence that the system benefits the UK and calls from entities like the Japanese government and the US Chamber of Commerce, who see it as crucial for attracting foreign investment, would be unwise.

Barnard & Peers: chapter 13, chapter 27

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