Professor Steve Peers, University of Essex

While political misinformation existed before the internet, online platforms have undoubtedly accelerated its spread. All political parties and sides of a debate engage in spreading false information, though the extent may vary. Recently, several government ministers have made a series of inaccurate or misleading statements regarding EU citizens residing in the UK. This appears to be a calculated tactic to secure votes from individuals with xenophobic sentiments in the upcoming election, making a systematic refutation necessary.

Although false claims about immigration from non-EU countries also circulate, government ministers have recently concentrated on spreading misinformation about EU citizens within the framework of EU membership. Consequently, this response will address those specific statements. Some content has been adapted from a previous briefing on this matter during the referendum.

To ensure clarity and avoid technical jargon, a question-and-answer format has been employed. While this discussion centers around legal aspects, it is worthwhile to review the government’s own Migration Advisory Committee report, which debunks various false assertions concerning the economic implications of EU migration.

It is crucial to remember that EU free movement law operates reciprocally—it applies to UK citizens migrating to the EU as well. The idea that UK citizens can simply relocate to the EU as non-EU citizens under the same conditions as they can now after Brexit by merely “filling out a form” is illogical. This misconception has been debunked in a Twitter thread.

Technicalities aside, the immigration debate holds personal significance for many, as it concerns the lives of friends, colleagues, and loved ones, many of whom have encountered prejudice and anxiety. Exploiting their situation for political gain through dishonesty is unacceptable.

Q: Does EU membership result in unrestrained immigration from all corners of the globe?

A: No. The EU has laws regarding non-EU migration, but the UK has negotiated and exercised opt-outs from the majority of these regulations. Specifically, the UK is not part of the Schengen area, meaning it maintains control over its borders with other EU nations concerning non-EU citizens. The UK can enforce its own laws to grant or deny entry to these individuals. Therefore, the claim that the UK has “lost control of its borders” regarding non-EU migration is inaccurate. It is the UK’s prerogative to establish laws that either curtail or promote non-EU migration.

A small number of non-EU citizens in the UK are subject to EU law. Firstly, EU free movement law covers non-EU family members of EU citizens. Secondly, the UK opted into the “first phase” of EU asylum law between 2003 and 2005, which establishes minimum standards. Subsequently, the UK opted out of most “second phase” asylum laws, except for those related to the “Dublin” system that determines the responsibility for asylum applications among EU countries.

Some suggest that non-EU migrants in other EU nations will acquire EU citizenship and subsequently migrate to the UK. However, as demonstrated by three independent analyses—conducted by Full Fact, BBC Reality Check, and Open Europe—obtaining EU citizenship is challenging for non-EU citizens. It requires a considerable waiting period, a clean criminal record, and meeting various other criteria. Non-EU citizens lacking legal residency or whose asylum applications are unsuccessful face deportation. In fact, almost 200,000 non-EU citizens are expelled from the EU annually.

EU laws concerning non-EU migration do not grant unrestricted entry to non-EU citizens—far from it. Many require short-term visas for visits, must fulfill more stringent criteria for residency compared to those under free movement law, and are subject to detention or expulsion. The notion of the EU having an open-door policy for non-EU citizens is a harsh reality for those residing in refugee camps in the Middle East or along the Mediterranean coast.

Q: Can EU citizens simply arrive and claim benefits?

A: No. Free movement is not absolute. The primary legislation concerning the free movement of EU citizens, known as the ‘Citizens’ Directive,’ permits EU citizens and their families to move to another member state for an initial three months. However, it explicitly states that EU citizens have no entitlement to social assistance benefits during this period. The UK has even revoked access to job-seekers’ allowance for EU job seekers during their first three months. EU citizens employed or self-employed are eligible for in-work benefits under the same conditions as UK citizens in similar situations.

After three months, the Citizens’ Directive stipulates that EU citizens and their families can remain only if they meet specific conditions: they are employed or self-employed; possess “sufficient resources” to avoid burdening the social assistance system and have health insurance; or are students enrolled in a post-secondary institution, have health insurance, and declare they will not rely on social assistance. The EU court has affirmed that individuals cannot stay solely to receive social assistance without engaging in employment in the host country. The court has also upheld the UK government’s decision to deny child benefit and child tax credit to those ineligible for residency.

The claim that “500 million people can migrate to the UK” under EU free movement law is misleading. This would only hold true if there were 500 million jobs available, 500 million university slots open, or if all 500 million individuals possessed significant personal wealth. Clearly, such a number of jobs, university places, or independently wealthy individuals do not exist.

Q: Can all unemployed EU citizens be deported after three or six months?

A: Not automatically or immediately, but they cannot remain indefinitely without meeting EU free movement law requirements, and they are not eligible for benefits. According to the Citizens’ Directive, individuals can stay if they can demonstrate ongoing job seeking and a genuine prospect of employment. However, they are not entitled to benefits during their search. They must also meet self-sufficiency criteria; otherwise, their stay is limited to three months. EU citizens can remain beyond three months if they qualify on other grounds, such as being a family member or being self-sufficient.

Regarding an EU migrant who worked in the UK for a period and subsequently became unemployed, it is possible for them to retain their status as a (former) worker, preserving their access to social assistance benefits. However, this is subject to limitations. Notably, if an EU worker’s employment in the UK lasted less than one year, their “worker” status remains valid for only six months after becoming unemployed. At that point, the UK can terminate their access to benefits, as confirmed by the CJEU ruling.

Following a legal stay of five years based on the Citizens’ Directive, EU citizens and their families can obtain permanent residency, granting them unrestricted access to social benefits.

Q: Does EU free movement law equate to the “free movement of criminals”?

A: No. The Citizens’ Directive allows for the expulsion, entry bans, or denial of entry for individuals deemed a threat to “public policy, public security, or public health.” Therefore, there is no unrestricted movement of criminals. However, limitations are imposed on Member States. Restrictions must be proportionate and “based exclusively on the personal conduct of the individual concerned.” Excluding individuals on general preventive grounds is not permissible; instead, it must be done on a case-by-case basis, following an evaluation of their “personal conduct” that demonstrates a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.”

British authorities possess the authority to examine an individual’s criminal history upon entry and can issue entry bans to prevent individuals from entering the UK. Individuals already residing in the UK have increased protection against expulsion over time, but there is never an absolute guarantee against deportation.

The claim circulated during the referendum campaign suggesting that the EU court prevented the removal of 50 EU criminals from the UK is entirely false, as explained in detail in the previous referendum briefing. It is also possible to deport EU citizens on the basis of their reliance on social assistance, subject to the limitations discussed in the previous answer.

Photo credit: BBC

Barnard & Peers: chapter 27