Catherine Barnard and Sarah Fraser Butlin*
The authors are both at the University of Cambridge and funded by the ESRC’s UK in a Changing Europe programme
Introduction
This blog post proposes a UK/EU migration policy based on “fair movement” instead of “free movement.” This system would require work permits for genuine employment or self-employment and a simplified registration process like the one used for Croatian migrants.
The authors suggest limiting the principle of equal treatment for work and benefits, using existing restrictions within the Citizens’ Rights Directive 2004/38 and the Brussels New Settlement Agreement. They believe the EU might accept this because it aligns with the original intent of free movement and acknowledges its declining popularity. This could also pave the way for other EU countries to implement similar restrictions.
II. Origins of Free Movement and the Equal Treatment Principle
The 1948 Paris Treaty introduced free movement to optimize labor resources but prioritized full employment for national workers. While fair treatment for migrant workers was expected, equal treatment wasn’t mandatory initially. However, equal treatment for social security was soon established.
The European Community for Coal and Steel (ECSC) in 1951 prohibited nationality-based discrimination in the coal and steel industries. Free movement, without restrictions not applicable to national workers, was proposed during discussions about the Common Market. This principle of non-discrimination was later enshrined in Article 45(2) TFEU.
Over time, equal treatment expanded to include economically inactive EU migrants and even those without resources, as per the Citizens’ Rights Directive 2004/38 (CRD) and EU citizenship provisions.
The CRD does include limitations on equal treatment. For instance, economically inactive individuals aren’t entitled to social assistance for the first three months, nor student grants and loans until after five years. While economically active individuals enjoy equal treatment from day one, residence requirements can be imposed if justifiable and proportionate.
Despite these limitations, concerns about EU citizens accessing in-work benefits and the perception of “benefit scrounging” persisted in the UK, particularly leading up to the Brexit referendum.
III. Recent Court of Justice Jurisprudence on Citizenship
The Court of Justice (CJEU) has shown signs of addressing concerns about equal treatment for non-economically active migrants. In the Collins case, the CJEU upheld a habitual residence requirement for benefits to ensure a genuine link to the employment market, aligning with the concept of “fair contribution.”
The Dano case established that lawful residence, proven by comprehensive sickness insurance and sufficient resources, is a prerequisite for equal treatment, particularly regarding benefits. This aimed to discourage benefit tourism.
The CJEU, in Commission v UK, confirmed that Member States can link social benefits for non-economically active EU citizens to lawful residence.
These rulings empower Member States to exclude individuals not meeting CRD requirements from equal treatment and to impose justifiable residence requirements for benefits. The CJEU seems to be granting states more control over their welfare systems.
IV. “New Settlement” Agreement
David Cameron’s “New Settlement” agreement incorporated some of these restrictions, codifying the Dano and Alimanovic rulings. It allowed Member States to deny social benefits to those without sufficient resources or residing solely for job seeking.
Crucially, it introduced an “emergency brake” on in-work benefits in response to exceptional inflows of workers from other Member States. Member States could request authorization to restrict access to in-work benefits for up to four years, subject to Commission and Council approval.
Despite its complexity, the Brussels Agreement offered a mechanism for controlling in-work benefits but never came into effect after the UK voted to leave the EU. Nevertheless, it provides a framework for future agreements on limiting equal treatment.
V. The Equal Treatment Principle in the Model of Fair Movement?
Recognizing the concerns raised, the proposed immigration regime suggests limits on equal treatment. Inspired by the Croatian scheme, EU/EEA nationals could access social security after 12 months of authorized work. The UK might argue against means-tested benefits like tax credits during this period. A more radical proposal involves phasing in in-work benefits over four years, as per the New Settlement Agreement.
VI. Conclusions
Building on the Brussels negotiations and CJEU rulings, the authors envision an “evolving concept of fair movement.” This approach emphasizes labor market needs and limits equal treatment, drawing on the original Treaty’s principles.
This “fair movement” model would apply to EU/EEA nationals classified as genuine workers (with potential minimum income and work hour requirements), self-employed individuals, or service providers. It would require comprehensive sickness insurance and sufficient resources for students and individuals of independent means.
Registration at the place of residence, with documentation verification by employers, educational institutions, and public service providers, would be mandatory. Equal treatment would be phased in according to the CRD, CJEU case law, and the New Settlement Agreement. Residence requirements, in particular, could address concerns about “benefit tourism.”
The authors believe that this balanced approach addresses concerns surrounding immigration while ensuring fairness for EEA migrants. By learning from the past and adapting existing mechanisms, they aim to achieve a sustainable and mutually beneficial system.
Barnard & Peers: chapter 27, chapter 13
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