Catherine Barnard and Sarah Fraser Butlin*

*Both authors work at the University of Cambridge and receive funding from the ESRC’s UK in a Changing Europe program. A more detailed examination of some of these points can be found in Barnard and Fraser Butlin’s article, “Free movement v. Fair Movement: Brexit and Managed Migration,” published in the Common Market Law Review (2018) 55 Common Market Law Review 203.

Introduction

The first two entries in this blog series (available here and here) introduced our concept of “fair movement.” In the initial entry, we proposed a strong connection between the right to migrate to the UK and engaging in economic activity. We argued in the second entry that existing limitations on the equal treatment principle, particularly residency criteria, should be applied before granting access to social security benefits. This concluding blog post centers on the third component of the proposed system: emergency brake mechanisms. In our view, integrating our approach to equal treatment with an emergency brake would offer a controlled yet adaptable migration strategy. This aligns with both the origins of free movement and other existing agreements, including those with EEA nations. Consequently, an approach founded on fair movement might be agreeable to the EU in a future trade agreement while addressing the concerns of UK voters. As in the previous two blog posts, we frame our arguments within the historical context of discussions surrounding the structure of free movement rules to illustrate the consistency between our proposal and past EU considerations.

Origins of Free Movement

While the matter of an emergency brake was a contentious point during discussions establishing the Common Market, the need to restrict free movement under specific circumstances was a recurring topic. A November 1955 note from the Inter-Governmental Committee (IGC) acknowledged the need for safeguard provisions in case of a workforce influx that could jeopardize particular industries in a specific country. This echoed the apprehensions of several delegations: France aimed to limit migration based on a member state’s capacity to absorb migrant workers; Luxembourg was concerned about implementing free movement of workers due to its social and demographic makeup; and Belgium worried about the strain of potentially large-scale migration.

The Spaak Report of April 21, 1956, which laid the groundwork for negotiations establishing the Common Market, supported earlier suggestions to gradually phase in free movement by increasing migrant worker numbers by 1% annually. However, the report also pointed out workers’ reluctance to relocate, even within a single country, indicating that controlled migration might not be necessary. Ultimately, this viewpoint seemed to prevail: the final version of Article 48 EEC on free movement of workers (now Article 45 TFEU) omitted any reference to quotas, a phased introduction of free movement, or an emergency brake.

However, the history of this provision shows that many delegations were concerned about a potential need for an emergency brake. However, migration between 1957 and 2004 was so low that further discussion about an emergency brake on migration became unnecessary. The world has changed. While the EU might prefer continued free movement, political realities suggest adjustments are necessary. Therefore, we ask: Is there a way to facilitate free movement while addressing the political imperative to regain some control over migration? We believe there is, and existing agreements point the way.

Existing Agreements

Some argue that a form of emergency brake is implied within the Treaty’s explicit derogations. However, we will focus on four other agreements that, in our view, provide a more concrete framework for an emergency brake provision.

Firstly, Article 112 of the European Economic Area (EEA) Treaty includes a broad safeguard clause:

“If serious economic, societal or environmental difficulties of a sectoral or regional nature liable to persist are arising, a Contracting Party may unilaterally take appropriate measures under the conditions and procedures laid down in Article 113.”

Article 112(2) adds, “Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Agreement.” Article 113 EEA outlines the process for triggering the procedure, which involves notifying Contracting Parties and consulting with the EEA Joint Committee. Protective measures may be applied in exceptional situations requiring immediate action that precludes prior examination. Any implemented safeguard measures must undergo review every three months to consider their removal or the limitation of their scope. This type of safeguard clause has been incorporated into the draft Withdrawal Agreement for the Northern Ireland/Ireland Protocol.

Secondly, the EEA agreement did include one specific restriction on the free movement of people for the small nation of Liechtenstein. Before Liechtenstein joined the EEA, the EEA Council recognized its susceptibility to excessive migration due to its limited habitable area. Upon joining the EEA, temporary measures allowed Liechtenstein to impose “quantitative limitations” on immigration until January 1, 1998. As the transitional period ended, no permanent solution had been found, and Liechtenstein unilaterally invoked Article 112 EEA. On December 17, 1999, it was determined that Liechtenstein’s “specific geographical situation” still justified maintaining certain conditions on the right to residency. The EEA Agreement was amended to allow EEA citizens to reside in Liechtenstein but mandated a residence permit for stays exceeding three months per year or for employment or other permanent economic activity. Providers of cross-border services did not require a permit. While a quota system was applied for residence permits, working in Liechtenstein did not require a permit, only residing there. These arrangements are reviewed every five years.

Thirdly, Switzerland incorporated a new provision prioritizing local hires following the Swiss Referendum in February 2014. The Swiss electorate voted to amend the Swiss Constitution to restrict immigration through quotas and limit foreign nationals’ rights to permanent residence, family reunification, and social benefits. This conflicted with the bilateral EU Agreement on Free Movement of Persons, leading the EU to suspend Switzerland’s participation in the EU research and student programs, Horizon 2020 and Erasmus+.

Following lengthy negotiations, a new law, enacted on December 16, 2016, came into effect in the summer of 2018. This law prioritizes Swiss-based job seekers, both Swiss and foreign nationals registered with Swiss job agencies, in sectors or regions with above-average unemployment rates. “Higher than average” unemployment is defined as the 12-month average unemployment rate plus 5 percentage points, rising to the 12-month average unemployment rate plus 8% during the transitional period. In these sectors or regions, employers must advertise open positions with the central employment agency for five working days. Only after that period can they advertise the job through standard channels and recruit internationally. Non-compliant employers face fines.

Fourthly, the text of the (now abandoned) New Settlement Agreement, negotiated by David Cameron with the EU in February 2016, included provisions for both an emergency brake on benefits and a potentially significant provision for a possible emergency brake on migration volume:

“Whereas the free movement of workers under Article 45 TFEU entails the abolition of any discrimination based on nationality as regards employment, remuneration and other conditions of work and employment, this right may be subject to limitations on grounds of public policy, public security or public health. In addition, if overriding reasons of public interest make it necessary, free movement of workers may be restricted by measures proportionate to the legitimate aim pursued. Encouraging recruitment, reducing unemployment, protecting vulnerable workers and averting the risk of seriously undermining the sustainability of social security systems are reasons of public interest recognised in the jurisprudence of the Court of Justice of the European Union for this purpose, based on a case by case analysis.” (emphasis added)

So, where is the emergency brake? It lies within the language. Typically, direct discrimination can only be justified by explicit derogations, while indirect discrimination can be justified by a broader range of objective reasons. The striking aspect of the Brussels text is that it does not limit objective justifications (or ‘overriding reasons of public interest’) to indirectly discriminatory measures. This suggests that even directly discriminatory measures could be justified based on “encouraging recruitment” and “reducing unemployment.” Therefore, the New Settlement Agreement could be interpreted as having room to develop the EU’s own emergency brake on migration volume.

Therefore, we argue that models exist for what could become the UK’s emergency brake. How might these models apply within a framework based on fair movement?

IV. The Future?

We advocate for implementing an emergency brake not at the national level but at the regional level. This could be at the level of devolved administrations or other regional groups to address the diverse needs of different regions. For instance, Scotland is currently calling for increased migration, while parts of England seek less. Thus, an emergency brake mechanism would need to operate regionally. Using economic data (like labor market indicators such as relative unemployment levels, unemployment benefit claims, and wage levels), public service demand (e.g., population growth, population turnover, waiting lists), and political experience (e.g., constituent feedback through elections and direct communication), these regions could formally request that the national government impose temporary migration restrictions. These restrictions, which could be sector-specific, skill-level based, or more general, would apply for a predetermined period. The registration system described in blog 1 would be the mechanism for controlling who can work in a particular area.

Who would have the authority to apply the emergency brake? Clearly, its application necessitates an objective basis, such as economic data. However, due to the highly politicized nature of this issue, the decision of when to apply the emergency brake cannot rest solely with an entity detached from the government. Nonetheless, we recommend safeguard provisions requiring certain minimum objective indicators in the economic data to be met before any subjective political decision can be made. It’s unlikely that the EU would concede to such a mechanism without dual control, meaning a system like Article 113 EEA would need to be established.

Would such mechanisms satisfy Leave voters, or would they be perceived as mere window dressing? The answer largely depends on the seriousness with which the mechanism is treated, the rigor of the objective criteria, and the willingness of local politicians to engage.

V. Conclusions

We acknowledge that our proposal significantly undermines the principles of free movement of persons, which purists will find concerning. However, we also recognize that post-Brexit, the UK will no longer operate within the EU’s paradigm of free movement. While universities and other large employers have reaped the benefits of free movement, it is politically improbable that continued free movement will emerge from negotiations, except possibly for a short transition period. Though the economic advantages of migration are undeniable, the political will to maintain free movement is absent.

Our proposed framework attempts to reconcile these competing forces and offer some admittedly imperfect options for a path forward. It aims to demonstrate to the British public that the government is reclaiming control over migration while providing flexibility for employers who rely on EEA workers, such as those in agriculture and hospitality. This is achieved without imposing the bureaucratic burdens and costs of a full-fledged visa system.

Some may argue that the framework outlined in these three blog posts does not differ significantly from the current application of free movement rules in the UK. We disagree. Firstly, our fair movement proposal introduces a registration system and generally requires those registering to be engaged in economic activity. Secondly, we maintain that economic activity should be accompanied by a meaningful salary threshold or a relatively high skill level. Thirdly, our framework permits restrictions on access to social security benefits. Finally, we advocate for an emergency brake, a mechanism currently unavailable under EU law.

We understand that a system that is neither entirely free movement nor highly restrictive may not fully satisfy anyone. However, there are currently few alternatives on the table. Furthermore, we recognize that concerns about migration are diverse and interconnected with concerns about other policy decisions: cuts to public services, the planning system’s failure to provide sufficient and affordable housing, and the inadequacy of enforcement agencies (where they exist) in safeguarding EU workers’ employment rights.

The system we propose would signal the UK’s commitment to addressing public demands for controlled immigration while giving the government time to tackle more profound and persistent issues. These include the lack of skills and training in the UK and the need for adequate public service funding.

Barnard & Peers: chapter 27

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