How Much Control Do Member States Have Over Free Movement?


European Union

Summary

The suggestion that Belgium has shown that inflows of EU citizens can be controlled despite free movement is simply wrong. While EU law makes provision for certain restrictions on entry and stay, the scope is limited and both technical and practical issues severely restrict its application in practice.

Context

EU Directive 2004/38/EC stipulates that “The free movement of persons constitutes one of the fundamental freedoms of the internal market…” and that, “Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty…” While Article 45 of the Treaty on the Functioning of the European Union provides an unequivocal and unlimited right to free movement exclusively to workers and their family members, all EU citizens are entitled to a minimum of three months’ residence in a host state regardless of their purpose or status.

However, EU Directive 2004/58/EC provides that EU citizens who are present in a host country for more than three months, who did not come for the purpose of study and are not working can be expelled in line with Recital 10 of the preamble which stipulates that: “Persons exercising their right of residence should not… become an unreasonable burden on the social assistance system of the host member State during an initial period of residence.” Belgium is frequently cited as putting these provisions to effective use and is held up as proof that the UK could control EU migration if it wished both now and if it were to retain freedom of movement. However, such a claim does not stand up at all to scrutiny.

Directive 2004/58/EC

While recital 10 allows for expulsion in principle, recital 16 of the same directive states that, “an expulsion measure should not be the automatic consequence of recourse to the social assistance system.” Furthermore, the ability of a host country to determine the extent to which a burden on its welfare system might be deemed ‘unreasonable’ is far from clear. The host state is expected to, “examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted,” in making its determination. Not only is the legal bar for expulsion therefore highly contestable, but paragraph 26 allows any EU citizen the right to access “judicial redress procedures” in the event of receiving an expulsion order.

Recital 16 of the Directive, in line with EU Treaty rights for workers, stipulates that, “in no case should an expulsion measure be adopted against workers, self-employed persons or job-seekers as defined by the Court of Justice save on grounds of public policy or public security.” The grounds must apply to particular individuals. Considering that the vast majority of EU nationals taking advantage of Treaty free movement provisions do so for the purposes of work, the number of EU citizens who might meet the criteria for expulsion is limited.

With regard to EU nationals who have been in work, but then become jobless, the European Court ruled in 2015 (see Alimanovic, C-67/14) that an EU citizen who has worked for six months to a year in a host country is only automatically entitled to six months’ social assistance while looking for work after which time it can be withdrawn. Upon withdrawal of such assistance, anyone who remained out of work but resident in a host state would not meet the ‘unreasonable burden’ criteria for expulsion, but neither would they be likely to stay anyway unless they chose to become homeless. However, those working for more than a year retain ‘worker’ status permanently in a host state regardless of subsequent changes in their situation and therefore might be entitled to receive social assistance indefinitely in which case the right of a host state to expel them becomes legally problematic.

There is little evidence to suggest that the inflow of people from the EU has included significant numbers of ‘benefit tourists’ who do not intend to work. Whereas out-of-work benefits in the UK are meagre, work is readily available and in-work benefits are generous so that even working only part-time and for a low wage can be worthwhile for the individual. The individual worker from the EU might result in a cost to the taxpayer, but this is not a legal basis for expulsion on grounds of public policy. Even low-paid workers are exercising Treaty rights and therefore are fully outside criteria for removal.

The scope of the Directive to establish clear criteria for expulsion is clearly very limited and the number of EU citizens in a host state who might meet criteria making them susceptible to such an enforcement mechanism is very small. Also, the fact that expulsions have to navigate a complex legal minefield and be determined on a case-by-case basis raises procedural and administrative issues that are likely to diminish the ability or willingness of a host state to pursue such measures. It is also pertinent that even in the event that a host state successfully expels an EU citizen, free movement rights can be exercised to return to that state at a later date. Recital 27 affirms that an excluded EU citizen should be able to submit a fresh application to return to the host state no later than three years after the enforcement of the exclusion order against them.

The Belgian experience

The Belgian authorities insist that expulsion orders are administered at local municipality level and involve sending eviction notices to those not meeting Belgian residency criteria. Recipients of an eviction notice are requested to return their residency permit to the local authorities. The extent to which the authorities actively enforce these eviction notices appears quite limited. During the period 2012 -2015, an average of only 2,200 eviction notices were issued per year according to the European Parliament and Euronews. It would be safe to assume that a significant proportion, although not all, of these eviction notices were served to individuals who were not working. Additionally, Professor Steve Peers, an expert on EU law, has said that each such notice would by law have to be addressed on a case-by-case basis and ‘subject to an individual examination and procedural rights…’

The immigration impact of these expulsions is also highly doubtful. Not only is there no data on how many of these eviction notices ultimately resulted in expulsion from Belgium, but Simon Cox, an immigration lawyer for the Open Society Justice Initiative, has said on Twitter that that there is ‘zero evidence’ that the Belgian policy of removing those who are not exercising treaty rights ‘changes migration patterns’. That is, the prospect of removal in the event of someone not finding work is not at all dissuasive of immigration in the first place.

Applying Directive 2004/58/EC in the UK

An estimate can be made of the number of EU citizens in the UK who might be vulnerable to an expulsion order if the UK were to adopt the Belgian approach. The most recent statistics (April-June 2018) show 78,000 EU-born people as unemployed in the UK. This is an unemployment rate of 3.2%, below the rate for the population as a whole. Of these, 11,000 have been unemployed for more than a year and therefore might be found unlikely to have a genuine chance of obtaining work. Of these, some will of course have derivative rights to be in the UK by virtue of being a family member of a person who is working or otherwise exercising Treaty rights. Therefore, the total number of these unemployed individuals who might be expelled from the UK on the basis of the Belgian model is likely to be in the low single-figure thousands.
Belgium requires migrant registration (including for EU nationals) and operates a national identity card system. In the UK, which has neither of these systems in place, the possibility of removal would be even less likely.

The UK government has a poor track record at removing even non-EU nationals who have no right to be in the UK and its capacity to do so is getting worse. Enforced removals of failed asylum seekers have fallen by two-thirds in the past decade to 2,400 per year and enforced removals of immigration offenders have more than halved since 2012 to 2,700 per year. Furthermore, the UK struggles to ensure that those non-EU nationals successfully removed from the UK are unable to return, so restricting the return of EU nationals seems even more unlikely. Meanwhile the Home Office enforcement budget has been cut so expanding enforcement operations to include EU nationals would be very unlikely to have a significant effect.

Conclusion

The suggestion that the Treaties and associated Directives allow any measure of real ‘control’ over immigration is wrong. Free movement means free movement of anyone who wishes except in a very small minority of cases.

1st April 2019

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