Tuesday, 19 June 2018

The future of free movement of persons in the UK (Part 1)








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. Thanks go to their colleagues, Graeme Ross, Steve Peers, Jonathan Portes and Madelaine Sumption.



Introduction



Concerns about immigration were a - no, probably the - main reason why many voted to leave the European Union on 23 June 2016. There was a strong perception that the UK had ‘lost control’ of its borders; a Leave vote would enable the UK government to take back that control. At one level, the UK had not lost control in the sense that passport checks were - and remain - firmly in place at its borders.  However, public perception was of a flood of migrants, including criminals, entering the UK with the government having limited ability to stem, let alone reverse, the tide. It was certainly true that migration was at its highest level ever at the time of the referendum. Many saw the Brexit vote as an opportunity to address this.



But protesting about immigration is the easy bit. It is quite another to find a solution to the inherent tension between encouraging those with skills to come to the UK while being seen to ‘take back control’. In Theresa May’s Mansion House speech on 2 March 2018 she made reference to migration for the first time:



[W]e must maintain the links between our people. … We are clear that as we leave the EU, free movement of people will come to an end and we will control the number of people who come to live in our country. But UK citizens will still want to work and study in EU countries - just as EU citizens will want to do the same here, helping to shape and drive growth, innovation and enterprise. Indeed, businesses across the EU and the UK must be able to attract and employ the people they need. And we are open to discussing how to facilitate these valuable links.



However, no further detail as to how this would be achieved was set out.  Indeed, Michael Heseltine in an interview with the Observer said “Why is it that after 18 months since the referendum we have not got any closer with these issues? The answer is simple: because no one has got any answer about how to do it.”



When she was Home Secretary, Amber Rudd, commissioned the Migration Advisory Committee to research what the country needs; it is not due to produce its final report until the Autumn. The immigration white paper, expected last year, is still not published. Meanwhile the Windrush scandal has shone an unforgiving spotlight on the effect of the Home Office’s ‘hostile environment’ on British citizens.



Given the now heightened sensitivity of migration as an issue, the UK seems unable to answer the most basic but fundamental question: whether it will continue to have a two-tier policy for immigration (a preferential regime for EEA nationals and a (significantly) less favourable regime for the rest of the world) or a single policy for all immigration.



There have been hints that the two-tier model is preferred, with preferential access to EEA nationals. If that preferential access was on terms as close as possible to the currently model of free movement, this would certainly help oil the wheels of a future deal and keep the door open for UK participation in a number of schemes including those for EU research funding. Speaking in Denmark on 9 April 2018, the Prime Minister Theresa May said that while she would keep the target of reducing net annual migration to below 100,000, she did recognise that ‘UK citizens will still want to come and study and work in countries in the EU27 like Denmark, and EU citizens like Danish citizens will still want to come and work and study in the UK.’  On 29 April 2018, the Independent reported that ‘Britain [is] set to offer EU Brexit immigration deal “very similar” to free movement.’ 



Yet there has since been a new home secretary, Sajid Javid, who is rumoured to have torn up a proposed policy giving preferential access to EU nationals and also removed Non-EEA health service workers from the Tier 2 cap. This might suggest he is looking to a single policy for EEA and non-EEA nationals in the future. Politically this might not fly. The current visa regime for non-EEA nationals is bureaucratic, complex and very expensive – and of course subject to the cap of 20,700 on the number of migrants coming to the UK (within Tier 2). Businesses in certain sectors are highly dependent on (EEA) migrant workers. In the absence of a dramatic overhaul of the visa scheme, many of those businesses will not be able to get the workers they need.



On the EU side, countries sending migrants, such as Poland, Bulgaria and Romania, may still want their workers to be able to work easily in the UK. So, in the context of the UK’s future relationship with the EU, there may be some appetite for the EU to explore a new arrangement with the UK in respect of migration. The UK, in its turn, may ultimately allow pragmatism to prevail, at least for a transitional period until UK workers are being trained, and may be willing to countenance some preferential – but controlled – regime for EEA nationals. This scheme might be based on a notion not of free movement (after all the UK is leaving the EU and, unless it stays in the EEA, it will not enjoy free movement) but ‘fair movement’ or ‘fair mobility’. The scheme that we propose across three blogs published this week, draws on a historical understanding of the EU’s free movement provisions to inform our suggestions as to what that new scheme might look like. Our proposal is pragmatic and tries to steer a course between the competing interests of the EU which will inevitably tack towards free movement and the UK government which will tack towards greater restrictions.



In the first blog, we argue that when the original EU Treaty (the Treaty of Rome) was drafted its focus was on the rights of individuals to move for work. It was not connected to broader ideas of citizenship and state building. We argue that the UK’s new arrangement with the EU could return to those original ideas. At domestic level the current scheme for Croatians working in the UK might provide a template as to how this can be operationalised.



In the second blog we consider how the equality principle might work in a post-Brexit immigration policy, especially in respect to access to benefits. We argue that there should be a phased approach to equal treatment depending on the migrant’s length of residence, with preconditions to accessing that right and specific exclusions from it, particularly in the early stages of a migrant’s arrival.



In the third blog, we consider the final component of a policy based on fair movement, the introduction of an emergency brake.



We turn now to look at the first element of the proposal for fair movement: connecting movement to economic activity.



Back to the Future

In the debates in the run-up to the Treaty of Rome, the notion of free movement of people was focused on the economically active, namely workers and those seeking to access jobs. The idea of free movement of people can be traced back to the 1948 Paris Treaty which established the Organisation for European Economic Cooperation (OEEC) and provided for Contracting Parties to ‘take the necessary measures to facilitate the movement of workers’. However, this was subsidiary to the aim of providing ‘full employment for their own people’ (emphasis added). 



The emphasis on the movement of workers recurred throughout the formal discussions about the establishment of the EU’s Common Market.  The German, Belgian, Italian, Luxembourg and Dutch delegations proposed that the free movement of people provisions of the Treaty should ‘consist in the free access of nationals of the Member States to economic activities in the territory of the Community’ (emphasis added). In November 1955 the Inter-Governmental Conference considered that the concept of free movement of workers included the right to present oneself in any country of the Community, for the jobs actually offered and to remain in that country without any other administrative restriction if a job is actually obtained’ (emphasis added). (Original text: “une interprétation correcte de la notion de libre circulation des travailleurs: elle comporte le droit de se présenter dans tout pays de la Communauté aux emplois effectivement offerts et de demeurer dans ce pays sans aucune autre restriction administrative si un emploi est effectivement obtenu”.)



This formulation of free movement of people was repeated in the 1956 Spaak report and formed the basis for the initial wording of the Treaty of Rome. Subsequent discussions indicated that the right of free movement should cover work seekers as well as workers.



What is abundantly clear is that the original Treaty drafters were concerned only with the economically active. The semi-economically active (students, the retired, and persons of independent means (PIMs)) were given free movement rights only much later, through the adoption of the Residence Rights Directives in the early 1990s, directives now replaced by provisions in the Citizens’ Rights Directive 2004/38 (CRD), which set the condition of having comprehensive sickness insurance and sufficient resources if EU citizens in this group want to reside longer than three months in another Member State. Free movement rights for the economically inactive were only contemplated by the citizenship provisions in the Treaty of Maastricht (1992), were subsequently fleshed out by the Court of Justice but then curtailed. 



We would argue that the link between economic activity and free movement is key. We would argue that for states, such as the UK, keen to have a deep and special economic relationship with the EU, entitlement to movement should return to having an economic focus as the original drafters of the treaty envisaged.  Those who wish to enter the UK for more than three months must be coming to work.  This, in and of itself, would not affect numbers: most EEA citizens come for work and this group has very high employment rates.



However, to reside in the UK beyond the three-month period, we would suggest that the EEA migrants must have obtained work which must not only be genuine and effective but also significantly more than de minimis (e.g. a minimum of 20 hours a week referenced over a period of, say, 4 months). Further, this work – whether as an employed or self-employed person – must be either at a high skill level or paid above a certain minimum threshold. A recently leaked document suggests that the Government might be sympathetic to this idea. It would require EU workers to earn £20,500 (significantly above a full time minimum wage, or £1,254.60 a month for someone on a 2040 hours a year contract) in order to come to the UK.  This would have the effect of bringing down numbers significantly. In addition, we would suggest that an individual should have to work for a period of, say, three months before they can bring family members with them (parents, spouse, dependent children).



We have shown that connecting movement with economic activity was rooted in the origins of EU law. The requirement for the work to be genuine and effective and not purely marginal and ancillary is already a requirement of EU law. However, threshold requirements in terms of skills and/or pay go significantly beyond the requirements laid down by EU law and the EU may find these difficult to accept in any future negotiations unless they could be introduced only for a transitional period.



The semi-economically active - students, the retired and persons of independent means - add significant economic value to the UK. We would argue for their inclusion in the definition of those who would have the right of fair movement subject to having sufficient resources, with those minima being defined (unlike the position in the CRD), and comprehensive sickness insurance (this could either be via the NHS surcharge or through private health insurance). In other words, we would push that the residence requirements already provided for in Article 7 of the Citizens Rights Directive (CRD) continue to be applied to this group but enforced in their entirety. This group would be entitled to work but only up to 20 hours a week.



Finally, there is an issue of those wishing to come to the UK as a service recipient or provider. In the WTO this is referred to as Mode 2 (consumption abroad such as tourism) and Mode 4 services (natural persons supplying services in another country). To facilitate these arrangements, there should be a window of 90 days when EEA nationals can enter the UK as a tourist and to look for work. Short term service providers would need to register on a database to indicate the nature and duration of their work. Their terms and conditions of employment would be mainly covered by home state rules.



Recent examples linking economic activity with free movement



Requiring a link between free movement and (high skilled) economic activity underpins the scheme currently operated by the UK for Croatian nationals during the seven year transitional period following the accession of Croatia to the EU in July 2013. The Croatian scheme distinguishes between different types of Croatian migrants who are awarded different types of registration certificates:



- Purple registration certificate to work in the UK: this requires the individual to meet the requirements for skilled economic migrants, as obtained for Tiers 2 and 5 of the Points-Based System (PBS), to have a job offer and either a sponsorship number from the employer or in certain circumstances a letter from the employer.  They may only work with this prior work authorisation, unless they fall within limited exceptions. After 12 months of authorised work then permission to work is no longer required.



- Blue registration certificate: where the individual holds a UK degree and is a “highly skilled individual” or holds a Tier 1 (Exceptional Talent) Endorsement (for those who are a “world leader or have the potential to be a world leader”). No work authorisation is required.



- Yellow registration certificate: this is for students and those who are self-sufficient individuals (that is, PIMs). They must produce evidence that they have sufficient resources to support themselves and that they have comprehensive health insurance.  Students may work in limited and restricted circumstances.



After 12 months of authorised work, a Croatian national becomes entitled to social security benefits and has the right to reside as a jobseeker, on the same terms as other EEA nationals.  Moreover, whilst in authorised work, they are entitled to means-tested benefits.  Those who are self-employed or have a blue certificate are entitled to social security benefits from the outset.



Similarly, until 1 January 2014 in order to work in the UK Romanian and Bulgarian workers were required to hold:

- a Seasonal Agricultural Workers Scheme certificate; or

- a registration certificate as a “highly skilled person”.  This required the individual to produce evidence showing qualifications, age, previous earnings and experience of the UK in order to obtain sufficient points to meet the threshold in the Immigration Rules. Alternatively it could be awarded to those who had obtained certain qualifications from a UK institution.  The registration certificate gave the individual unconditional access to the labour market.

- an accession worker card for certain categories of employment including au pairs, ministers of religion, teachers, language assistants or midwives. Students and those who were self-sufficient could also obtain a registration certificate, and students were then permitted to work for 20 hours per week in term time.



The mechanics of a registration scheme



The approach underpinning the Bulgarian/Romanian scheme and subsequently the Croatian scheme is that generally an individual should be undertaking some, usually high skilled economic activity to be permitted to remain in the UK.  We would argue that these schemes could be developed to include a salary threshold as an alternative to a skills requirement outlined in section II.



The Croatian, Bulgarian and Romanian schemes also provide an illustration of how to combine a scheme requiring the migrant to be engaged in economic activity with a relatively simple, cheap registration system. We would argue that the registration schemes used in relation to Croatian, Bulgarian and Romanian migrants might provide a prototype for future arrangements.



Specifically, we would envisage employers issuing an electronic document to an individual with an eligible job offer, certifying that the job offer was genuine and effective and with confirmation of the salary and, where appropriate, highly skilled person status. The prospective employee could then apply online for a residence permit at negligible cost (circa £65, the current cost of the Croatian registration certificates).



Were the employment to end within the first twelve months a simple online notification process could be used to notify the Home Office of the ending of employment, automatically giving the individual a further, say 3 months, to find a new job.  Where an individual sought to move to a new employer, the notification process should deal with this straightforwardly, allowing the new employer to update the relevant details. After twelve months, permanent residence status would be granted and the online system updated allowing future employers to check an individual’s status. 


The advantage of adapting, say, the Croatian model for EEA nationals (and in the future high skilled non-EEA nationals?) are four fold. First, it is an off-the-shelf model; no new IT systems need to be built, just an upgrading of existing ones (they would, however, require significant investment - there are currently lots of online reports of lengthy administrative delays for Croatians applying for these certificates). Second, the numbers coming in for work purposes will be checked systematically. Transparency and the knowledge that comes from this is already a precondition of control. Third, the system is still light touch. It avoids complex, bureaucratic and expensive visa schemes. It could be matched with a legal presumption for the employer that the individual has the right to work once the individual has a registration certificate. Fourth, it gives power to employers to determine the type of person they want and in what field. The scheme is not reliant on the Home Office to release permissions to fill a job on a monthly basis.



Conclusions



No employer wants to go through the huge expense and tremendous bureaucracy of a Tier 1 or tier 2 visa scheme. We recognise that there will inevitably have to be a registration scheme of some sort for newly-arrived EU migrants wishing to work in the UK (and distinct from those already in the UK at the end of the transition who have settled status). What we are proposing is a light touch scheme which allows registration without acting as a significant deterrent for those coming to the UK. Our proposal, relying as it does on the individual showing economic activity (or at least sufficient means to support themselves), reflects the ideas underpinning the original version of the Treaty, namely that migration should be for economic purposes. Relying on this as a basis for a future policy, combined with a simple registration scheme, is the first strand of our approach based on fair movement.



Barnard & Peers: chapter 27, chapter 13

Photo credit: BBC

Wednesday, 13 June 2018

Brexit: Some conceptual clarifications concerning EFTA and the EEA






Dr. Michael Sánchez Rydelski and Cath Howdle*



*Respectively Member and Deputy Director of the Legal Service of the EFTA Surveillance Authority. Nothing in the present article binds or necessarily reflects the views of the EFTA Surveillance Authority.



1. Introduction



This contribution does not intend to offer a solution to the Brexit conundrum: that is a matter for governments and negotiation teams. The following comments are merely intended to serve as a guide to some of the more important aspects of the European Free Trade Association (“EFTA”) and the European Economic Area (“EEA”).



In the present contribution, we aim to explain briefly what EFTA or EFTA-EEA membership may offer the United Kingdom (“UK”), to clarify the relationship between EFTA and the EEA, to articulate how each option might be exercised, and to debunk a few misconceptions that have been doing the rounds.



2. The approaching vacuum



Once the transitional period ends, the UK’s definitive exit from the European Union (“EU”) will create a vacuum, in terms of preferential trade and market access arrangements with the UK’s current trading partners. It is commonly understood that at the point of its final departure, the UK will lose its preferential market access to the EU’s Single Market, unless an arrangement can be agreed. However, what is less commonly articulated is the consideration that the UK will simultaneously find itself empty-handed concerning trade with its non-EU partners, as it will also lose its participation in a number of free trade arrangements the EU has concluded with third countries, such as Canada, Singapore and South Korea.



How the UK will fill this vacuum is still unknown. However, it is already clear that concluding a new free trade agreement with the EU, while negotiating free trade agreements with non-EU partners, will be a time-consuming and resource-intensive exercise. No serious predictions can be made as to how long it will take to finalise - let alone ratify - these arrangements, but it is obvious that this will not be a quick fix.



In addition, the processes of negotiating a new relationship with the EU and a whole host of new arrangements with non-EU partners will be intertwined. Non-EU partners might be reluctant to finalise trade arrangements with the UK until the position between the UK and the EU has been sorted out. This process will be likely to have a negative impact on the UK’s economic development.



3. Existing models



Given this dilemma, the legitimate question needs to be raised whether existing models could be used to overcome this uncertainty in the short to mid-term perspective.



Two ideas for the UK have been raised over the course of the last few months:



-          to re-join EFTA as a means of maintaining at least free trade with non-EU partners, while ceasing to be a party to the EEA Agreement (“the EFTA option”); or



-          to re-join EFTA while remaining a party to the EEA Agreement (“the EFTA-EEA option”).



4. The EFTA option



4.1. What would the EFTA option look like?



EFTA is an intergovernmental trade organisation comprising four Member States, namely Iceland, Liechtenstein, Norway and Switzerland. The UK was a founding member of EFTA in 1960,[i] before leaving in 1973 to join the then European Community. EFTA functions on the legal basis of the EFTA Convention, which promotes free trade between its existing four EFTA States (intra-EFTA trade).[ii] EFTA is also a platform for an extensive network of free trade arrangements between the EFTA States and third countries.



There are some important factors to consider with regard to the EFTA option:



First, EFTA membership is not based upon joining a customs union or single market. Foreign trade policy remains at national level. The EFTA Convention established a free trade area, not a customs union.



Second, the UK’s EFTA membership could be envisaged without participation in the EU’s Single Market. EFTA is a classical international trade organisation and membership of EFTA does not mean having to remain a party to the EEA Agreement.



Third, unlike the EU, EFTA does not envisage political integration. There is no element of “ever closer political union” in the EFTA Convention, the focus is on economic integration. Nor is there a direct mechanism for incorporating EU rules into the EFTA Convention.



Fourth, EFTA does not establish any supranational institutions: there is no specific EFTA compliance mechanism or court. Chapter 17 of the EFTA Convention, entitled “Consultations and Dispute Settlement”, provides for a dispute settlement mechanism to deal with any matters of controversy arising from the Convention. This enforcement mechanism follows a classical arbitration approach, distinguishable both from the judicial procedures available under EU/EEA law and from the more judicial dispute settlement procedure under WTO rules.



Any new EFTA membership would entail the acceding State applying to also become a party to the Free Trade Agreements (“FTAs”) EFTA has negotiated with third countries. EFTA has currently a network of 27 concluded FTAs, covering 38 countries, which cover substantially similar areas as those of the EFTA Convention.[iii] Among these 27 FTAs are trading partners such as Canada, Chile, Colombia, Hong Kong, South Korea, Mexico, Morocco, Peru, Philippines, Singapore, the Southern African Customs Union, Tunisia, Turkey and the Ukraine.



The term “FTAs” needs to be qualified, as EFTA as such is not a party to these agreements. The Contracting Parties to an FTA are the EFTA States on the one side and the partner country on the other, since foreign trade policy remains within the competence of the EFTA States.[iv] The UK would consequently be free to negotiate its own bilateral FTAs. Still, negotiating future market access in a group with four other economically successful countries enhances the scaling effect and will provide more weight in negotiations.



Finally, EFTA also deals with the relationship between some EFTA States, namely Iceland, Liechtenstein and Norway, and the EU by way of the EEA Agreement, through which these EFTA States participate in the EU’s Single Market.[v] Consequently, EFTA membership would also leave the door open to consider later possible EEA membership.



4.2. How could the UK take the EFTA option?



The procedure for re-joining EFTA is not highly formalistic. EFTA membership is open. Article 56(1) of the EFTA Convention provides for the possibility for other States to accede to it. The EFTA Convention does not contain any specific conditions for accession. The terms of accession would be determined in the negotiations with the applying State. Upon completion of these negotiations, the EFTA Council[vi] would take a decision approving the accession, setting out the terms and conditions thereof. The EFTA Convention would enter into force in relation to an acceding State on the date stipulated in an EFTA Council decision.[vii]



5. The EFTA-EEA option



5.1. What would the EFTA-EEA option look like?



The EEA Agreement was signed in 1992 and came into force in 1994. This is an agreement between the European Union and its Member States, on the one hand, and three EFTA States, namely Iceland, Liechtenstein and Norway (“EFTA-EEA States”), on the other. The UK is a signatory to the EEA Agreement as a member of the EU. Switzerland, the fourth EFTA State, is not a Contracting Party to the EEA Agreement. The relationship between Switzerland and the EU is based upon a series of bilateral agreements.



There are three important factors to consider regarding the EFTA-EEA option:



First, the EEA Agreement does not establish a customs union but it does set up a single market. The EEA Agreement aims to ensure a balanced playing field between the EU Member States and the EFTA-EEA States through provisions on free movement of goods and capital, freedom of establishment and freedom to provide services. It also sets out State aid and competition law parallel to the EU’s rules. If the UK were to become an EFTA-EEA State, it would not be prevented from making a customs arrangement with the EU.



Second, the EEA single market is more limited than the EU Single Market. It is limited in terms of the material scope of what it covers – for example, it does not cover fisheries and agriculture, or VAT. There is no “EEA citizenship” – this is not a part of EU law which is reflected in the EEA. Similarly, there is no Charter of Fundamental Rights, and no requirement for a State which is party to the EEA Agreement to also be a member of the European Convention on Human Rights (although all 31 States are parties to the ECHR, and the EFTA Court has made reference to human rights). Nor does the EEA Agreement cover any of the justice and home affairs parts of the EU Single Market (so no European Arrest Warrant, for example). However, EFTA-EEA States have the possibility to “opt in” by agreement to initiatives in the area of freedom, justice and security, or can conclude treaties with the EU based on these arrangements, which are separate from the EEA. While every EFTA State participates in the EU’s Schengen system, this is also legally separate from the EEA.



Third, the EEA ensures access to the EU Single Market based on regulatory alignment and is self-policing.



The EFTA-EEA States can access the single market if they adhere to the rules set out in the EEA Agreement, and if their regulations are aligned with those in the EU. The chosen mechanism for doing so is to incorporate EU regulations and directives into the annexes to the EEA Agreement, and then to make those regulations and directives part of national law in the EFTA-EEA States.



This is a model of regulatory alignment which is not a million miles away from the current proposal for a UK/EU transitional agreement.[viii] The EFTA-EEA model has two advantages over this proposal. First, the EFTA-EEA States can participate in the preparatory stages of the EU legislative process (a voice which would be louder if the UK were part of the EFTA-EEA bloc). Second, the process of incorporation of a piece of EU legislation into the EEA Agreement’s annexes comes with the opportunity to negotiate adaptation texts. Furthermore, the EFTA-EEA States can also notify “constitutional requirements” (notably a vote in the national parliament) before accepting a piece of EU secondary legislation into the annexes to the EEA Agreement. This, however, can create delays in ensuring full regulatory alignment – as we have seen in the financial services sector.



In ensuring compliance with the EEA Agreement, the EFTA-EEA States have established two independent bodies; the EFTA Surveillance Authority (“ESA”) and the EFTA Court. ESA monitors the EFTA-EEA States’ implementation and application of the EEA Agreement and all regulations and directives in the annexes. If the EFTA-EEA State has not met its obligations, it can be brought before the EFTA Court. The EFTA Court also delivers judgments in cases brought against ESA decisions, and delivers judgments interpreting EEA law (known as advisory opinions) in cases which are referred from national courts.



Readers who are familiar with the EU system of monitoring and oversight will not find the EEA system wholly unfamiliar. There are, however, three important differences. First, there is no possibility for ESA to obtain penal damages against an EFTA-EEA State which continues to infringe EEA law after an EFTA Court judgment against it. Instead the matter is resolved by recourse to the Joint Committee of the EEA (comprising representatives from the EFTA-EEA States and from the EU). Second, advisory opinions are non-binding and leave the referring court free to follow a different course of action in reaching a judgment (subject to the rules on loyal cooperation, and the potential for follow-up action from ESA if the judgment leads to an infringement of EEA law). Third, the EFTA Court cannot annul legislation.



It is worth noting that the compliance system established by the EEA is rather unique in terms of its set-up as an international law compliance system, in two respects.



First, unlike the classical model of dispute resolution for international agreements (involving a tripartite tribunal of one person appointed by each side and a neutral arbiter) the EEA model is self-policing. The EFTA-EEA States each nominate a College member to lead ESA (which is an independent organisation charged with ensuring compliance) and each nominate a judge to sit on the EFTA Court. The appointments are made by the EFTA-EEA States jointly: there is no EU involvement. Nor is there an EU appointee or representative in ESA or on the EFTA Court bench.



The absence of an EU judge is compensated for by the principle of homogeneity; which provides that there should be a level playing field across the two parts of the EEA (in the EU and in the EFTA –EEA States). However, this does not mean that the EFTA Court always follows the CJEU: the CJEU has also followed the EFTA Court. There is also extensive judicial dialogue between the two courts. Moreover, representatives from the EFTA-EEA States and ESA are entitled to be heard in cases before the CJEU (and vice versa). This system would benefit the UK in that it would not lose its voice when EU rules are interpreted by the CJEU (with an obvious knock-on impact in situations of regulatory alignment).



Certain commentators have suggested that the CJEU is able to overrule the EFTA Court in the event of disagreement. However, this is not the case: if there is a serious and sustained divergence in the case-law (which there never has been, despite some differences in interpretation), the Joint Committee may be convened to deal with this issue (which it never has been) and if it fails to reach an agreement on an interpretation of EEA law, it may choose to refer a matter to the CJEU for interpretation. This does not amount to an ability for the CJEU to overrule the EFTA Court.



The second respect in which the EEA compliance system differs from the classical international model is that it is not simply state-to-state dispute resolution. The system of preliminary references established in the EU (which permits citizens to exercise their rights more effectively) is mirrored in the advisory opinions process at the EFTA Court: an ordinary person or business can bring a case before a national court, and if a question of interpretation of EEA law arises then it can be answered by the EFTA Court (instead of the same citizen or business having to try to bring their country to justice before an international tribunal for an incorrect interpretation, or to rely on a state-to-state action).



Similarly, ESA’s compliance activities are triggered by complaints and ESA has extensive contact with citizens, businesses and NGOs, in order to ensure that people who derive rights from EEA law can take advantage of those rights. Likewise, interested parties can bring cases before the EFTA Court in the event that they consider an ESA decision to be ill-founded. This is a system which does not simply leave dispute resolution in the hands of a state versus state court, but brings citizens into the picture in the exercise of rights granted under law.



5.2. How could the UK take the EFTA-EEA option?



The UK is already a party to the EEA Agreement, as one of the EU Member States, and so would take the EEA option by becoming an EFTA-EEA State.



It would be impossible for the UK to remain as a “floating” state: the EEA Agreement’s articles refer repeatedly to the EU Member States on one hand and the EFTA-EEA States on the other. However, if the UK became an EFTA-EEA State, then only the preamble and Article 126 EEA (plus some of the protocols and annexes) would need significant amendment. Such amendments would require the agreement of the other 30 EEA States.





6. Conclusion



It is with some surprise that the authors note that political debate in the UK has not yet reached a firm conclusion as to what the EU-UK arrangements should be at the end of the transitional period. It is hoped that the present note at least helps to clarify two of the possible options.





Brussels, 13 June 2018

Barnard and Peers: chapter 27

Photo credit: www.cruise-norway.no



[i] The negotiations on the establishment of EFTA were concluded with the signing of the EFTA Convention in Stockholm on 4 January 1960.
[ii] The EFTA Convention establishing EFTA is available at: www.efta.int
[iii] An overview of all concluded FTAs is available at: www.efta.int
[iv] EFTA States are in principle free to conclude unilaterally FTAs with third countries.
[v] Whereas the trading relationship between Switzerland and the EU is based on series of bilateral agreements.
[vi] The EFTA Council is the highest governing body of EFTA with responsibility for all matters concerning the relations between the EFTA States and between EFTA and third countries (Article 43 of the EFTA Convention).
[vii] Article 56(1), third sentence, of the EFTA Convention.
[viii] TF50(2018)33.

Tuesday, 12 June 2018

Brexit and EU27 citizens’ rights: a proposal for a Protocol




Stijn Smismans, Professor of Law, School of Law and Politics, Director of the Centre for European Law and Governance, Cardiff University


Since the EU and UK presented a (partially) agreed draft version of the Withdrawal Agreement (WA) in March 2018, many seem to assume that the post-Brexit status of the more than 3 million EU27 citizens in the UK (and more than a million British citizens in the EU) is resolved.  The EU has indeed made an important effort to define and obtain a status for those citizens that comes close to their current rights.  However, the debate has particularly focused on the material scope of these rights, rather than on the process through which people will be recognised entitlement of those rights.  In fact, many people who have been legally in the UK for years or decades are at risk of failing to prove their entitlement to remain once the UK has left the EU. 

The key problem is that the Withdrawal Agreement is built on a flawed premise.  It assumes that by copying the criteria of Directive 2004/38/EC (the Citizens Directive) relating to the acquisition of residence rights, EU27 citizens will be guaranteed the same status as they hold today.  In a nutshell, in order to obtain residence rights provided by the Directive, one needs to be in work (or have been in work), or show to have sufficient resources and comprehensive sickness insurance. There is a level of discretion for the Member States on whether and to what extent they impose and control these criteria.  However, applying these criteria will operate very differently once the UK leaves the EU than when it was still an EU member. 

First, after Brexit EU citizens in the UK will no longer be protected by all judicial remedies provided under EU law. The infringement procedure will no longer apply. Neither can Francovich damages be asked for in the national court.  There are still doubts on how exactly the UK will ensure respect of direct effect of the WA’s citizens provisions; and one can question to what extent UK courts will make use of the time-limited option to ask preliminary references.  Courts have a considerable discretion in this, and one wonders to what extent judges will feel inclined to make use of it once the UK is no longer part of the EU.  The UK has already shown bad implementation of the Citizens Directive (for instance in relation to Comprehensive Sickness Insurance) even as a Member State of the EU. Without the full protection of the EU judicial system, correct enforcement of the Directive and the WA post-Brexit will become even more problematic.

Secondly, once the UK withdraws from the EU, the criteria of the Citizens Directive will be applied in a constitutive rather than a declaratory registration system. Under a constitutive system people have to successfully apply in order to obtain a residence status.  In case of rejection, an applicant will have no document certifying their status; as a result they will lose all entitlements and ultimately face deportation.  The consequences of not obtaining a ‘settled status’ document are thus far more serious than not obtaining a permanent residence card under EU law.  In a declaratory system, absence of a document does not mean that you are not entitled. Even if your application is rejected you might still be able to stay on a temporary basis, or might be able to return under free movement provisions.  The consequences of a constitutive registration system can be particularly dire if combined with the UK’s so-called ‘hostile environment’ policy on immigration.

Thirdly, applying the criteria of the Citizens Directive within a constitutive system is particularly problematic in the UK context because the country never registered EU citizens upon arrival.  Requiring citizens who for example may have lived in the UK for decades to retrospectively prove their legal status may prove highly problematic in many cases.  The recent Windrush scandal exemplifies the dramatic consequences of such an approach.

Finally, the sheer number of people to be registered within a short period of time makes a rigid application of the Citizens Directive practically impossible and undesirable.  This has also been recognised by the UK Government. The UK’s implementation of the EU permanent residence registration procedure has a current rejection rate of 28%.   If a similar interpretation of the Directive criteria and registration was to be applied to more than three million EU citizens, this could have disastrous consequences.

It is, therefore, rather shocking that the EU has agreed a WA that simply copies the Directive criteria, pretending that all those currently profiting from EU free movement rights in the UK would still be protected after Brexit, and underestimating the particular challenges of applying these criteria in a very different context.

The UK Government itself has stated that a rigid application of the criteria is both impossible and undesirable.  Thus it has promised that it would not apply the criteria of Comprehensive Sickness Insurance (CSI) and ‘genuine and effective work’ and that it would instead introduce a simple registration system based on proof of identity, residence and criminality checks.  But, these are merely political statements. The Government can change its position at any time, possibly introducing a registration system not dissimilar from the current procedure for permanent residence applications, with that difference that after Brexit the procedure would be constitutive in nature.  This would mean that about 28% of 3 million EU citizens would immediately face the hard consequences of the UK’s ‘hostile environment’ and be threatened with deportation.

So why has the EU not made more effort to ensure the UK’s political statements would be turned into legal commitments and thus avoid such a scenario?

The European Commission has taken a formalistic approach arguing that EU citizens retain the same entitlements as under the EU Citizens’ Directive, and thus pretending they are not at risk. However, that fails to acknowledge that these criteria cannot operate in the same way when they are applied in a country that never had registration and will introduce a constitutive registration system when it is no longer a Member of the EU.  The refusal to accept this reasoning seems to be inspired by the fear that writing more details into the WA on a simpler registration system in the UK would put the other 27 Member States under pressure to apply a similar procedure, and thus de facto undermine the discretion allowed by the Citizens’ Directive.

However, the WA is an international treaty.  It can set particular provisions for the UK (as, in fact, it does on other issues, such as requiring an independent authority to be set up in the UK), and this approach would be justified by the fact that the legal situation in a country out of the EU is not identical to that of countries in the EU. Hence, legally this can be done within the WA without imposing new requirements on the other 27 Member States.   Nevertheless, if there is political reluctance by the remaining Member States, an alternative solution is to set out the UK’s political statements regarding a simple registration based merely on residence, ID and criminality check into a Protocol attached to the WA.  A Protocol would not change the main text of the WA, but simply set out legally the political promises the UK has made with regard to how it will implement the WA. The aim of adopting a Protocol is to make these unilateral commitments by the UK legally binding at the international level.  This is because a Protocol has the same legally binding force as an international treaty like the WA.  Protocols can set out further details, often signed by and applicable to only some parties to the main international treaty.

Given that the Brexit withdrawal negotiations are based on the principle ‘nothing is agreed until everything is agreed’, such a revision of the WA or the inclusion of a Protocol specific for the UK is still possible.  Whether this is politically achievable depends on several actors.  It is not clear to what extent the formalistic approach of the European Commission was really inspired by substantive resistance from the Member States.  The negotiation has been strongly driven by the European Commission, within a very short time frame, leaving the Member States little time to get through the nitty-gritty complex citizens’ rights provisions of the WA. Whether the UK is ready to agree to such a revision of the WA or to signing up to a separate Protocol depends on bargaining power in the negotiations.  From its perspective, it comes down to setting out legally a commitment it had already made politically, but it might be very reluctant to do so at an international level.

Yet, the UK government may be willing to do so if the EU offered freedom of movement throughout the entire EU for the British citizens already residing in Europe, which remains the biggest weakness of the WA for this group.  The European Parliament might be the ultimate dealmaker on this issue.  It has presented itself as the big defender of citizens’ rights in the Brexit negotiations and has repeatedly stated it will not approve the WA if it has no guarantees on their protection.  Yet, to defend EU citizens properly it has to realise that the key issue is no longer whether the WA copies all rights of the citizens’ Directive, including the right of residence for a third country spouse, but whether it provides procedural guarantees on the registration system that take into account the particular challenges of the UK post-Brexit.

In the remainder of this paper I will provide a draft of a Protocol to exemplify what role it can play and how it could be written.  There is no one single way in which such a Protocol could be drafted or used.  The exact content will depend on how the UK intends to implement the Withdrawal Agreement, and formulation of the exact provisions will obviously be done by legal drafters.  The aim of this proposal is to show what a Protocol could look like, how it would operate and what would be its main provisions.   At the same time, the proposal is not an ‘ideal type’ solution, but is based on several intentions the UK Government has made clear:

1)        The UK Government has committed to a procedure that will be simple and based on ‘residence, identity, and criminality check’. It has repeatedly stated that it will neither require proof of Comprehensive Sickness Insurance, nor of ‘genuine and effective work’.  The latter implies that the UK will not apply any means testing in its registration procedure. Under EU law, means testing is only possible if one fails the test of ‘genuine and effective work’.  Hence, if the UK were to introduce means testing without a preceding test of ‘genuine and effective work’, it would be in breach of EU law and the commitments of the Withdrawal Agreement.

2)        The WA allows for the creation of either a constitutive or a declaratory registration system.  The UK Government has stated it will introduce a constitutive registration system.  As it is politically highly unlikely that the UK could be persuaded to accept a declaratory system, or to revise the WA in that direction, this proposal for a Protocol is based on the premise that a constitutive system will be introduced.

3)        The UK Government has proposed an online registration system, through which people would apply and the Home Office will then check data making use of existing databases from the revenues collection and the work and pensions government departments (i.e. HMRC and DWP).  The full details of this procedure have not yet been communicated.  Neither are there yet any substantive details of how people can apply if they have no online access or they face other barriers that will make it harder for them to apply.  On the basis of the available information, this proposal suggests a registration procedure that allows either application online (as set out in Article 2(2) and (3) of the proposed Protocol) or application via post or contact with local services such as passport service (set out in Article 2(4))

As the exact way the UK intends to implement the UK is not yet clear, this proposal for a Protocol cannot be read as a full legal translation of the UK’s intentions. Moreover, I have included some provisions necessary to protect EU citizens’ rights but that go beyond what the UK Government has promised in its political statements.

Barnard & Peers: chapter 27
Photo credit: Business Insider UK


Protocol on the implementation of the Withdrawal Agreement by the United Kingdom

Article 1

Implementation of Article 4 WA

The UK shall ensure compliance with Article 4(2) of the Withdrawal Agreement via the adoption of a Withdrawal Agreement and Implementation Bill.  This act of primary legislation will:

a)         include a provision ensuring the direct effect and supremacy of Part II of the WA as set out in Article 4(1) paragraph 2 of the WA

b)        fully incorporate the provisions of Part II of the WA, and in particular the detailed provisions of the registration procedure as set out in Article 2 of this Protocol.  

Explanation

The Joint Report promised that the Withdrawal Agreement and Implementation Bill will ensure direct effect, but at the same time it required for the citizens’ rights provisions of the Withdrawal Agreement to be fully incorporated in that Bill. This provides a double guarantee; namely a supranational guarantee via direct effect and protection via primary legislation to avoid that citizens’ rights provisions are set out in ever- changing and difficult-to-monitor acts of secondary legislation.  Unfortunately, the WA is less clear in this regard.  This Article 1 of the Protocol clarifies the interpretation of Article 4 WA, so it is in line with the promises made in the Joint Report. 

As the UK will be no longer part of the EU judicial system, the tool of direct effect on its own, independent of other features of that system, will not be sufficient to guarantee EU citizens their rights.  Hence, it is also necessary for their rights to be set out in primary legislation. In particular where the Withdrawal Agreement leaves discretion to the Host State (such as on the application of Article 17WA), the UK should make its key choices of implementation via primary legislation setting out the main applicable rules in the Withdrawal Agreement and Implementation Bill and not delegate this discretion to secondary legislation.  This does not mean that certain administrative implementation measures cannot be delegated to affirmative secondary legislation, but the key features as set out in this Protocol should be set out in primary legislation.


Article 2

Implementation of Article 17 WA

The UK will implement Article 17 in the following way:

1. The United Kingdom will require EU nationals, their respective family members and other persons, residing in its territory in accordance with the conditions set out in Part II, Title II, to apply for residence status which confers the rights under this Title and a physical document evidencing such status.

The application procedure shall comply with the conditions set out in Article 17.

Explanation

This first paragraph confirms that the UK registration procedure will comply with all the provisions of Article 17 WA.  It commits the UK to providing a physical document as proof of status.  The WA allows for only a digital document.  In light of the UK’s 'hostile environment' to immigration (which requires private actors such as banks, employers and landlords to check on the status of immigrants) a digital document will not be sufficient protection for those benefiting from the WA.  Ideally, the WA itself needs to be amended on this issue, as it is equally a potential problem for British Citizens wishing to benefit from the WA in Europe.


2. EU citizens falling under Title 2 of Part II of the WA can apply via an online procedure, which requires:

a) proof of identity as required under Article 17, 1(i)
b) a statement that the applicant is resident prior to the end of transition for those applying for temporary residence; or resident for more than five years for those applying for settled status

Explanation

It is anticipated that most EU citizens will be able to apply online for their respective status.  For many this procedure could be minimal and close to a ‘declaratory’ procedure. From the information so far communicated, it seems that the Home Office seeks to establish a process where EU citizens can apply by:
1.        providing evidence of identity, which can be done by scanning passport/ID; and
2.        Making a statement on residence. 

This will then prompt the Home Office to confirm the validity of the ID and check their and other government agencies existing databases that those applying meet the relevant residence criteria. 

For many (potentially most) the process should be concluded at this stage.   Only if the Home Office has no confirming information, it will ask for additional information, as set out in the next paragraph.


3. The Government will check the validity of the identity and then check the statement against existing databases.  The Government can require that the applicant provides further proof regarding:

a) identity: by presentation of the identity card or passport. In respect of Article 17,1(i) the administration shall return that document upon application without delay and before the decision on the application is taken.

b) residence:
(i) For temporary residence application, one document showing residence in the last year before the application. As required by the WA the evidence must show residence by the last day of the transition period.

Examples of acceptable items of proof are:
          Letters or other documents from government departments or agencies, for example HM Revenue and Customs, Department for Work and Pensions, DVLA, TV Licensing.
          Letters or other documents from your GP, a hospital or other local health service about medical treatments, appointments, home visits or other medical matters
          Bank statements/letters
          Building society savings books/letters
          Council tax bills or statements
          Electricity and/or gas bills or statements
          Water rates bills or statements
          Mortgage statements/agreement
          Tenancy agreement(s)
          Contract of employment showing address
          Telephone bills or statements

Explanation

This list is just an example. The objective is not to set out an exhaustive list in the Protocol.  However, ideally, a non-exhaustive list could be outlined in the Protocol and in the Withdrawal Agreement and Implementation Bill (WAIB), while a full list could be set out by delegated legislation (ideally with the affirmative procedure). Yet, the decision on such delegation would be taken in the WAIB and not in the Protocol.


 (ii) Applicants applying for settled status relying on 5 years continuous residence; one document from the list provided in 3(b)(i) above, for each year in any period of five successive years.  The five documents can span a period of six years if the applicant has been absent for less than one full year.  

(iii) Applicants falling under Article 17 Directive 2004/38/EC are required to present one document for each year of their shorter qualification period. Additionally, one has to provide one document of this list showing residence within the year preceding the application, and at the latest at the last day of the transition period, in order to prove continuity of residence.
They have to provide evidence of being entitled to the shorter qualification period provided by Article 17 Directive 2004/38EC.

In respect of Article 7,1(j) supporting documents other than identity documents may be submitted in copy. Originals of supporting document can be required only in specific cases where there is a reasonable doubt as to the authenticity of the supporting documents submitted.

Explanation

This explains how the UK will apply criteria in relation to settled status, in respect of the WA and Directive 2004/38.  Please note Article 16(3) of the Directive provides that permanent residence may not be obtained in the case of absence for an uninterrupted period of six months during the five years, but extends this to one year in some cases like pregnancy.  The system proposed here in this Protocol allows maximum one year of absence during the five-year period.  To avoid overload of the application procedure it does not require proof of continuity of residence other than proof of continuing residence short (one year) before application. There is no requirement to prove that one has not been absent for more than two years since building up the five years.

4. In alternative to the procedure provided under paragraph 2, the applicant can apply:
a) via presentation of the documents listed in paragraph 3, to a local passport service
b) via presentation of the documents listed in paragraph 3 via postal application

Explanation

This will particularly facilitate registration for those who do not have access to online registration.

5. Family members of EU citizens falling under Title 2 of Part 2 of the WA can apply, by providing evidence of:
a) identity, as defined in 3a) of this Protocol
b) relationship to EU citizen entitled under the WA, in respect of proof of documents as defined in Article 17 (l) and (m)
Such applications can be online, via passport service or via postal application.  Applications can be made joint with the EU citizen to whom they are family member.

Explanation

The application for family members is by providing proof of identity and relationship to EU citizen who is entitled under the WA.  Documents are those as accepted in Article 17 WA.


6. The UK Government can apply criminality checks at the time of application in respect of Article 17(1)(p) of the Withdrawal Agreement, and in respect of Directive 2004/38/EC as set out in Article 18(1) of the Withdrawal Agreement.  EU citizens and their family members will not be asked to declare criminal convictions.

Explanation

Article 17(1)(p) allows host states to ask applicants for a self-declaration.  However, this is hugely problematic and not required.  Countries can check criminality anyway without applicants needing to make such declaration.  Self-declaration is mainly a trap so people who declare wrongly their criminal past, deliberately or unknowingly, can be sanctioned and deported on this basis.  The issue is particularly salient as the UK has shown clear intentions to use criminality checks as a key selection tool and there are examples of current practice on this matter already in breach of EU law. 

While enforcement of EU law has already proven difficult in the UK, it will be even more so post Brexit.  Hence in order to properly protect EU citizens it is necessary to make clear such self-declaration will not be applied.  This can be done either in the Protocol or by changing the WA on this. The latter would be preferable as it will also provide protection for British citizens in the EU.


7. EU citizens and their family members who have not successfully applied by the end of the grace period will not be deprived of the rights Part II of the Withdrawal Agreement confers without being previously contacted by the UK authorities with a request to apply following the procedure set out in paragraphs 2 to 4 of this Protocol.

Explanation

Some vulnerable people might not have applied prior to the end of the grace period because they have not been properly informed or did not know how to apply.   Not holding a document to ascertain their status is likely to cause these people problems in accessing services, particularly in the context of the hostile environment policy.  However, these vulnerable people should be protected from being hit by all the punitive measures of the hostile environment.  They should not be deprived of the rights they may hold under the WA, without been given a chance to prove their status at the moment their lack of registration emerges.   


8. EU citizens who have obtained settled status hold this status for life, with exception of the situations provided in Articles 14(3) and 18 of the Withdrawal Agreement. People who have lost their document evidencing their status will be provided with a new document simply on the basis of proof of identity, with respect of conditions as set out in Article 17. They will not be asked to provide again the original documentation at the basis of their status. Neither will they be asked to provide new proof.   The same applies in case the document confirming settled status is subject to renewal.  Such renewal will neither require the original documentation nor new evidence, but will simply be delivered by proof of identity.
Explanation

Article 14(3) WA states that settled status can be lost after five years of absence.  Article 18 WA allows deportation for criminality on grounds beyond Directive 2004/38 for acts post transition.  Only an indefinite right to return and deportation on grounds as defined by the Directive will ensure that EU citizens hold a status that equals their current status.  This would require amending the text of the draft Withdrawal Agreement. However, independently of whether the WA is revised, it is important to make clear that loss of the document or renewal of settled status should not be abused as a way to undermine EU citizens’ established rights.  Unfortunately, current UK immigration law practice provides multiple examples of situations where people are asked to provide evidence all over again when documents are due to be renewed or have been lost.   If applied to settled status, this would mean that people are never certain of their status, and will remain in a permanent situation of having to prove their entitlement for the rest of their life.

9. Article 17 (1)(e) will be implemented in compliance with the General Data Protection Regulation.

Explanation

Article 17(1)(e) requires a transparent procedure.  The UK has just introduced an exemption on data protection in immigration related matters.  This bluntly undermines the data protection rights provided by the GDPR and puts EU citizens at risk of not being able to fight judicially measures taken against them by the Home Office.  The Protocol should make clear that the GDPR will be respected in relation to the implementation of the WA.