Steve Peers*

David Cameron has successfully negotiated a deal regarding the UK’s membership in the EU. This post, the first in a series about the deal, focuses on “EU immigration” or, in terms of EU law, the free movement of EU citizens. I will delve into other important matters (competitiveness, Eurozone relations, sovereignty) and the legal structure of the deal later.

The deal comprises seven legal documents: a Decision by the EU Member States’ Heads of State and Government (the “Decision”); a Statement from the Heads of State and Government (an agreed Council Decision); a Declaration by the European Council (representing the EU Member States’ Heads of State and Government); and four declarations by the Commission. Immigration is addressed in Section D of the Decision and three of the Commission declarations. One Commission declaration, concerning child benefit exports, was introduced during the negotiation, while Section D and another declaration (regarding the “emergency brake” on in-work benefits) were modified. The remaining declaration, addressing the alleged “abuse” of free movement, remained unchanged.

Section D clarifies EU free movement law, but the deal’s central component regarding immigration is the intent to suggest changes to three primary EU laws: the EU citizens’ Directive (outlining rules for EU citizens relocating to other Member States), the EU Regulation on free movement of workers (containing specific rules for relocating workers), and the Regulation on social security (establishing rules for social security coordination and equal treatment for those moving between Member States).

The Commission will propose all three sets of amendments once the main Decision becomes effective, which will happen when the UK declares its intention to remain an EU member - assuming a public vote favors remaining in the upcoming referendum. The deal includes a pledge from the Commission to make these proposals and from other Member States to endorse their adoption in the EU Council. This latter commitment, strangely, doesn’t apply to the proposed amendment to the citizens’ Directive as it isn’t mentioned in the main Decision.

However, all three proposals will follow the “ordinary legislative procedure,” requiring agreement from the European Parliament. There’s also the possibility of their legality being contested in the EU Court of Justice. While I can’t predict the European Parliament’s likelihood of approving the proposals, the largest party (the European People’s Party) has expressed support for the renegotiation deal in principle, contingent upon examining the specifics. Below, I present my thoughts on potential legal challenges to these laws if adopted.

The deal, unlike some other sections (concerning non-Eurozone states and the UK’s exemption from “ever closer union”), doesn’t mention future Treaty amendments to implement any part related to free movement (immigration). The deal’s primary impact in this area will come from the three legislative proposals once they are adopted. As these proposals won’t be tabled or agreed upon until after the UK’s “Remain” vote (if it occurs), a detailed analysis remains somewhat speculative. Several significant details will only become clear once the legislation is proposed and ratified.

Despite the media’s focus on the “emergency brake” on in-work benefits, there are three main issues: benefits (including points beyond the emergency brake), family members of non-EU citizens, and EU citizens involved in criminal activities.

It’s important to note that the deal omits two issues Cameron raised: removing job seekers who don’t find employment within six months and requiring a job offer before entry. Due to the Antonissen judgment of the CJEU, both changes would have necessitated a Treaty amendment.

Benefits

The draft deal addresses three benefits-related issues: the “emergency brake” for in-work benefits, the export of child benefits, and benefits for the unemployed.

‘Emergency brake’ on in-work benefits

Cameron initially called for a four-year ban on EU citizens accessing tax credits, housing benefits, and social housing but later signaled a willingness to compromise. The status of non-workers and job seekers is discussed later, but the situation for workers is legally and politically sensitive due to the Treaty’s non-discrimination guarantee.

Instead of permanent discrimination, the deal proposes temporary discrimination through an “emergency brake.” The Commission will propose legislation enabling the UK (or other Member States) to implement a four-year ban on in-work benefits based on specific criteria. Procedurally, a Member State will apply to the Council for authorization to implement the ban. It’s presumed the Council will adhere to the default voting rule in the Treaties: a qualified majority vote on a proposal from the Commission. This means no single Member State can veto a request.

The final deal remains ambiguous about the specific authorization process within the Council to avoid upsetting the European Parliament (EP). However, this detail will need addressing eventually. The EP will undoubtedly need to approve the legislation establishing the process; the question is whether it would be involved in deciding whether to activate the brake.

A Commission declaration states that the UK qualifies to implement this ban immediately, mainly because it didn’t apply transitional controls to workers from new Member States in 2004. However, nothing in the deal suggests that Member States, who have the final say, concur. The limitations would only apply to “newly arriving” individuals for seven years, gradually phasing out over that period. This seven-year period mirrors the transitional period the UK could have implemented in 2004 to manage the influx of workers from new Member States.

Several points require clarification. Firstly, it’s unclear how long after the initial seven years must pass before the brake can be reapplied. Secondly, the definition of “newly arriving” needs clarification. What about individuals who resided in the UK previously and are now returning? How long must they have lived in another Member State (for instance, Poland) to be considered “newly arriving” again? The brake likely wouldn’t apply to individuals already residing in the UK when activated but are not working (due to age, unemployment, childcare, or illness) but subsequently gain employment.

Thirdly, the calculation of the four-year period needs definition. It’s straightforward for individuals starting work upon arrival and working for the subsequent four years. But what about those (for example, a non-working spouse or a teenager) who commence work some time after entering the country? What about individuals who start working, then stop for a period before restarting? What about those who begin work during the brake period, spend a year or so in another Member State, then return? Finally, how can we definitively determine when someone initially entered the country?

The most crucial aspect is the grounds for implementing the brake. According to the Decision, it would apply in situations where:

‘an exceptional situation exists on a scale that affects essential aspects of [a Member State’s] social security system, including the primary purpose of its in-work benefits system, or which leads to difficulties which are serious and liable to persist in its employment market or are putting an excessive pressure on the proper functioning of its public services’.

The perception that one or more of these issues exist in the UK due to the recent surge in the number of workers from other Member States is widespread. However, there are two major issues with the proposed mechanism. Firstly, concrete evidence supporting this view is lacking. Secondly, while the CJEU has accepted certain limitations to free movement rights to protect healthcare systems, this would have a far more significant impact on non-discrimination for workers. It’s conceivable that the Court might accept that these plans don’t violate the Treaties, drawing parallels from its clear willingness to preserve the EU’s monetary union and its endorsement of restrictions for non-workers in recent years. However, based on current EU law, this is unlikely.

Export of child benefits

Cameron aimed to cease child benefit payments for children residing in other Member States. This payment is stipulated in the EU social security coordination Regulation, requiring an amendment to change the rules. A strong argument existed that this plan would violate the Treaties. In the Pinna case, the CJEU ruled that EU legislation allowing Member States to completely halt the export of such benefits breached the rules on the free movement of workers.

The deal doesn’t go as far as Cameron desired. Child benefits can be limited by indexing them to the “conditions” in the receiving state. This applies only to “new claims made by EU workers in the host Member State.” However, after January 1, 2020, this “may” extend to “existing claims already exported by EU workers.” The Commission declaration, added during negotiations, clarifies that “conditions” refer to the “standard of living and level of child benefits” in the child’s country of residence. Whether this new law would violate the Treaties remains unclear, as there’s no existing case law on this matter.

Several details need clarification. Firstly, the new rules are optional, allowing Member States to maintain more generous policies if desired. Secondly, there’s no restriction limiting their application to the UK (although the UK and Poland are used here for clarity). Thirdly, it’s unclear whether these rules apply to British citizens with children in other Member States. The principle of non-discrimination arguably mandates their application. Fourthly, the situation for “mixed” families (for instance, British and Polish parents or step-parents) is unclear. Will it depend on which parent is the worker? What if both parents are workers? What if this changes over time?

The transitional clause also raises questions. The Decision differentiates between “new claims” and “existing claims already exported by EU workers.” The new law will likely specify a date after which claims are considered “existing” (for instance, January 1, 2017). These must be existing exported claims. If a child relocates to Poland after January 1, 2017, or is born after this date and resides in Poland, child benefit payments could be reduced even if the worker already resides in the UK. If this estimated date is accurate, those considering having children who wish to avoid these rules should act quickly.

It’s worth noting that a challenge by the Commission concerning other aspects of the UK’s child benefit payments to EU citizens is ongoing. The non-binding opinion of an Advocate-General supports the UK in this case. It wouldn’t be surprising if the Commission quietly withdrew this legal challenge.

Benefits for those out of work

Cameron sought to end social assistance for job-seekers. As EU legislation already excludes job-seekers from social assistance, this reflects the current situation. While the CJEU states that job-seekers have the right to benefits linked to labor market participation if they have an existing link to that market, it interpreted this rule narrowly in the Alimanovic judgment. The Dano judgment determined that benefit tourists (individuals who have never worked in the host State) are not entitled to benefits. The Decision reiterates this existing case law, which already fulfills Cameron’s primary goals in this area. Another judgment from the Court of Justice on EU benefits is expected shortly.

EU citizens’ family members

Currently, the EU citizens’ Directive permits EU citizens to bring their spouse or partner, children under 21 or dependent children of either parent, and dependent parents of either parent to another Member State. This applies whether or not the family members are EU citizens. Beyond potential refusal of entry or subsequent expulsion based on public policy, public security, or public health, no further conditions apply.

EU law generally doesn’t cover UK citizens bringing non-EU family members to the UK. The UK can implement restrictive rules in these cases (which it has, concerning income requirements and language proficiency). However, the CJEU ruled that UK citizens relocating to another Member State (the “host Member State”) can be joined by non-EU family members under the EU’s more lenient regulations. They can then return to the UK (the “home Member State”) with their family members, invoking free movement rights outlined in the Treaties. This practice is known in the UK as the “Surinder Singh route,” named after the case that established this principle. In 2014, the CJEU clarified two points about this situation: a minimum three-month stay in the host Member State exercising EU law rights and residing with the family member is required before returning, and the EU citizens’ Directive applies analogously to UK citizens returning with their family members.

In his 2014 speech, David Cameron aimed to eliminate the distinction between EU citizens and UK citizens regarding the admission of non-EU family members by subjecting EU citizens to the same strict conditions as UK citizens. This could have deterred EU citizens with non-EU family members from exercising their free movement rights, potentially requiring not just a legislative amendment but also a Treaty change. EU free movement law mandates not only the elimination of discrimination between UK and other EU citizens but also the removal of non-discriminatory “obstacles” to free movement.

The deal, however, doesn’t go this far. The main Decision states:

‘In accordance with Union law, Member States are able to take action to prevent abuse of rights or fraud, such as the presentation of forged documents, and address cases of contracting or maintaining of marriages of convenience with third country nationals for the purpose of making use of free movement as a route for regularising unlawful stay in a Member State or for bypassing national immigration rules applying to third country nationals.’

The Commission Declaration states its intention to propose an amendment to the citizens’ Directive:

‘to exclude, from the scope of free movement rights, third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen or who marry a Union citizen only after the Union citizen has established residence in the host Member State. Accordingly, in such cases, the host Member State’s immigration law will apply to the third country national.’

The Declaration also aims to clarify:

‘Member States can address specific cases of abuse of free movement rights by Union citizens returning to their Member State of nationality with a non-EU family member where residence in the host Member State has not been sufficiently genuine to create or strengthen family life and had the purpose of evading the application of national immigration rules’; and

‘The concept of marriage of convenience - which is not protected under Union law – also covers a marriage which is maintained for the purpose of enjoying a right of residence by a family member who is not a national of a Member State.’

These “clarifications” seemingly won’t be included in the legislative proposal, as the declaration later concludes (emphasis added):

‘These clarifications will be developed in a Communication providing guidelines on the application of Union law on the free movement of Union citizens.’

Let’s examine the proposed legislative amendments and the “clarifying” guidelines. The amendments exclude two groups of non-EU citizens from the citizens’ Directive: those lacking prior lawful residence in a Member State before marrying an EU citizen who has relocated to another Member State, and those marrying such an EU citizen after their move to another Member State. In these cases, national immigration law will apply.

This proposal stems from CJEU case law. In its 2003 Akrich judgment, the CJEU ruled that Member States could require previous lawful residence within their borders for non-EU family members (previously, no such rule seemed to exist). However, the 2008 Metock judgment overturned this, stating that a prior legal residence requirement was unacceptable.

Several issues arise. Firstly, the definition of “lawful residence” is unclear. It likely entails more than lawful presence, such as a three-month stay with a valid visa or visa waiver. However, ambiguous cases like pending asylum applications or appeals require clarification. EU legislation states that asylum-seekers can generally stay until their application is rejected (if unsuccessful) and during the appeal process (with some exceptions). According to the CJEU, the EU’s primary rules on irregular migrants don’t apply to asylum-seekers with pending applications.

Secondly, referencing national law exclusively is unusual as EU law sometimes governs the admission of non-EU nationals. Even the UK (alongside Ireland) is bound by the first-phase EU asylum law and the EU/Turkey association agreement. Denmark is bound by the latter treaty. All other Member States must adhere to the second-phase asylum law, along with EU legislation on admitting students and researchers and some labor migrant categories (highly-skilled, seasonal workers, and intra-corporate transferees).

Thirdly, the EU’s non-discrimination principle arguably applies. For instance, if a German woman married to an American man already resides in the UK, the UK would be obligated to treat her equally to a British woman in the same situation, but not worse. This would apply to every Member State - this aspect of the deal doesn’t specifically target the UK. One important detail is whether all Member States would be required to implement the new rules on “prior lawful residence” and “marriage after entry of the EU citizen,” or if they could choose to waive one or both. The EU citizens’ Directive already allows Member States to apply more lenient standards.

Lastly, the consequences of this rule require clarification in the future legislative amendments. Does exclusion from the Directive permanently exclude the family member, even if admitted under national immigration law? This implies that national immigration law (or EU immigration legislation in some cases) would continue governing their access to employment, benefits, and subsequent permanent residence. The situation for children, such as the EU citizen’s step-child or a child born to the EU and non-EU citizen couple while living in a third country, is also unclear.

Could this legislative amendment violate the EU Treaties? The Court in its Metock judgment predominantly referenced the wording of the citizens’ Directive. It mainly cited the Treaties when concluding that the EU was authorized to regulate the status of EU citizens’ third-country national family members. It also mentioned the Treaty’s objective of creating an “internal market” and the “serious obstruct[ion]” to freedoms guaranteed by the Treaty if EU citizens couldn’t lead a “normal family life.” Therefore, there’s a possibility that the revised rules could be deemed invalid for breaching EU free movement law.

Would the amendment violate the EU Charter’s right to family life? This is unlikely. While the right to family life is often invoked to prevent the expulsion of family members, the European Court of Human Rights’ case law grants Member States significant leeway in refusing admission to family members. This is justified by the family’s ability to live “elsewhere,” as acknowledged by the CJEU (EP v Council). However, the CJEU might hesitate to follow this case law (EP v Council concerns families solely composed of non-EU nationals) within the context of free movement. The notion of relocating to enjoy family life elsewhere contradicts the principle of free movement.

The “clarifications” in future guidelines, being non-binding, are noteworthy. They primarily address EU citizens relocating to another Member State and subsequently returning to their home state. Case law (three months’ stay with a family member) defines what constitutes a “sufficiently genuine” move, and guidelines cannot supersede this.

The Surinder Singh case law originates from the Treaty. This line of case law doesn’t consider such movement between Member States an “evasion” of national law, as long as free movement rights are genuinely exercised with a family member for a minimum duration. The CJEU also typically assumes (for instance, in Metock) that a “marriage of convenience” doesn’t apply to genuine relationships, even if an immigration advantage is gained.

Nonetheless, the planned legislative changes will complicate matters for those wishing to relocate to another Member State with their non-EU family before returning. National immigration law will apply to their move to the host Member State. It’s crucial to see how the legislative amendments address the transitional issues of those who have already moved to a host Member State before the new rules come into effect. Could the home Member State, potentially citing the Commission’s “guidance” (which might be issued before the new legislation), require those families to secure lawful residence in the host state for the non-EU family member before allowing them into the home state?

Criminality and free movement law

The Treaties permit the refusal of entry or expulsion of EU citizens on “grounds of public policy, public security or public health.” The citizens’ Directive outlines detailed rules for this, which has been subject to substantial CJEU case law.

What does the renegotiation deal change? Firstly, the Decision states that:

‘Member States may also take the necessary restrictive measures to protect themselves against individuals whose personal conduct is likely to represent a genuine and serious threat to public policy or security. In determining whether the conduct of an individual poses a present threat to public policy or security, Member States may take into account past conduct of the individual concerned and the threat may not always need to be imminent. Even in the absence of a previous criminal conviction, Member States may act on preventative grounds, so long as they are specific to the individual concerned.’

The Commission declaration states its intention to:

‘also clarify that Member States may take into account past conduct of an individual in the determination of whether a Union citizen’s conduct poses a “present” threat to public policy or security. They may act on grounds of public policy or public security even in the absence of a previous criminal conviction on preventative grounds but specific to the individual concerned. The Commission will also clarify the notions of “serious grounds of public policy or public security” and “imperative grounds of public security” [grounds for expelling people who have resided for longer periods in a host Member State].  Moreover, on the occasion of a future revision of [the citizens’ Directive], the Commission will examine the thresholds to which these notions are connected.’

It’s unclear if the Directive revision mentioned here is as imminent as the proposal to amend the rules to create a “prior lawful residence” rule for non-EU family members. The plan to issue guidelines is clearly non-binding. The language in these guidelines partially reflects existing law, but some aspects are new: the increased emphasis on past conduct, the reduced need to demonstrate an imminent threat, and the possibility of expelling someone as a “preventative” measure.

These changes align with Cameron’s desire for “stronger measures to deport EU criminals.” However, there’s no specific mention of his plans for “tougher and longer re-entry bans for foreign rough sleepers, beggars and fraudsters.” While a conviction and re-entry ban for fraud might be covered by the guidelines, there’s no mention of clarifying entry bans within those guidelines or amending the relevant legislation. Furthermore, EU legislation doesn’t permit re-entry bans for rough sleepers and beggars. The EU citizens’ Directive clearly states that entry bans cannot be imposed if someone was expelled for reasons other than public policy, public security, or public health. Essentially, a Member State can impose an entry ban on an EU citizen expelled due to criminality but not due to poverty.

Longer waiting periods for free movement of persons from new Member States

The Decision briefly acknowledges Cameron’s plan to implement longer waiting periods for the free movement of people in future accession treaties. It merely notes his suggestion without incorporating it. However, as the specifics of each new Member State’s adaptation to EU law are outlined in individual accession treaties requiring approval from each Member State, the UK can veto any future accession treaties that don’t include longer waiting periods for free movement. The next EU accession is at least four years away, likely more. Therefore, the lack of agreement on the UK’s position is currently inconsequential.

Conclusion

The crucial point about the renegotiation deal, particularly regarding EU immigration, is its multi-faceted nature. The main agreement is a Decision, essentially clarifying existing EU law without amendments. However, regarding EU immigration, other aspects of the deal are more significant: the intention to pass three new secondary EU laws. These new laws represent a full-fledged amendment to existing EU regulations, not simply clarifications. While some specifics remain undefined, the deal makes clear the Commission’s intent to make proposals in these areas, with support from all Member States (i.e., the Council). Whether the European Parliament will approve them and whether the CJEU would uphold challenges to their legality remains to be seen.

My assessment, detailed above, is that the amendments concerning family members will likely be deemed acceptable, the child benefit reforms are uncertain, and the changes to in-work benefits are highly susceptible to challenges. Naturally, as there’s no prior case law on these specific issues, we cannot definitively predict the Court’s approach.

Ultimately, these changes, even if fully implemented, fall short of a fundamental shift in the UK’s relationship with the EU. However, claiming they are insignificant is inaccurate. The changes would be modest but noteworthy: amendments to three key pieces of EU legislation that, for the first time, would roll back, rather than expand, EU free movement law. Disregarding the calls for non-binding guidelines, there would be reductions in in-work benefits (though temporary), increased control over admitting EU citizens’ non-EU family members, and limitations on child benefit exports.

Barnard & Peers: chapter 13

Photo credit: www.telegraph.co.uk

*Disclosure: I will be consulting for the European Parliament on the free movement aspects of the renegotiation. However, my advice will be fully independent; I don’t represent or advocate for the European Parliament (or anyone else) on these (or any other) issues.