As a penance for terrible sins committed in a moment of insanity, the mythical hero Hercules was required to perform ten great labours – extended to twelve after he cheated on two of them. Similarly, David Cameron has today pledged to insist upon major changes to the rules on free movement of EU citizens, failing which he will advocate Britain leaving the European Union. He clearly considers this necessary in light of the political sin of failing to meet his earlier promise to hugely reduce the amount of migration to the UK – which was, in hindsight, made in a moment of political madness.
Cameron’s commitments will not be easy to meet, for the reasons I set out below. I have broken them down into a list of specific commitments. I leave it to the classicists to match each of them to Hercules’ tasks.
If no changes to EU free movement law are made, the Prime Minister implicitly suggested that he would campaign for the UK to leave the EU. He did not state that he would insist upon all of his suggested amendments being agreed. So it is important to assess how realistic each of these proposals is.
A crucial factor in determining what is politically realistic is the nature of the current EU legal rules. Where Cameron’s proposals reflect the status quo, they are obviously realistic. Where they would require EU legislative change, they will require only a qualified majority of EU Member States in favour, plus a proposal from the Commission and agreement of the European Parliament. But where would need an EU Treaty amendment, they would have to be agreed by all Member States and ratified by each national parliament. That isn’t impossible, but it won’t be very easy; and it means that Cameron will more likely have to compromise on the proposals made today.
What about the other political parties? UKIP, of course, wants the UK to leave the EU. The Liberal Democrats generally support benefit reforms, and the Labour party’s policy, as announced recently is broadly consistent with Cameron’s proposals. The difference is that the Liberal Democrat and Labour parties do not (or not yet) support a referendum on continued UK membership of the EU.
As can be seen from the detailed comments below, most of Cameron’s specific proposals will require a Treaty amendment. I have elaborated on some of the points made below in my recent blog post on the legal limits on the amendments to EU free movement law.
1. No access to tax credits, housing benefits and social housing for four years for EU citizens
For EU citizens who are not workers, work-seekers or former workers, this confirms the status quo, as set out in the CJEU’s recent ‘benefits tourism’ judgment in Dano (see discussion of that judgment here).
For EU citizens who are work-seekers, the free movement of workers in the Treaties (as interpreted by the CJEU) requires Member States to give them access to benefits linked to labour-market participation. These benefits would probably not be covered by that rule. So this confirms the status quo.
For EU citizens who are workers (as defined by the Treaties and CJEU interpretation) or former workers (as defined by EU legislation, and the CJEU interpretation of the Treaties), there is a right to equal treatment as discussed in my prior blog post. So this change would require a Treaty amendment.
2. Removal if job-seekers do not find a job within six months
For EU job-seekers, the EU legislation states that they cannot be expelled as long as they ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. This reflects the case law of the CJEU, interpreting the Treaties (Antonissen judgment). Therefore this change would require a Treaty amendment.
3. Ending the entry of non-EU family members without restrictions
Currently EU citizens can bring with them their spouse or partner, the children of both (or either) who are under 21 or dependent, and the dependent parents of either. (As an exception, students can’t bring their parents with them – but it’s rather doubtful that many students would want to do that if they could). This applies regardless of whether the family members are EU citizens or not. In 2003, in the judgment in Akrich, the CJEU ruled that Member States could insist that non-EU family members had previously been lawfully resident in the Member State concerned (previously no such rule appeared to exist). But in 2008, in Metock, the CJEU overturned this ruling and said that a prior legal residence requirement was not allowed.
This rule could possibly be overturned by EU legislative amendment, but it is possible that the CJEU would find that for those EU citizens whose rights are based on the Treaties (workers, job-seekers, former workers, self-employed persons, students), such a restriction was a deterrent to free movement, so a Treaty amendment might be needed.
In fact, Cameron’s speech appeared to suggest that all non-EU family members of all EU citizens would have to be subject to the same restrictive income and language requirements that apply to UK citizens who seek to marry non-EU citizens. This would clearly deter free movement of those EU citizens who have non-EU family members, and would surely require not just a legislative amendment but a Treaty change. These changes would therefore probably restrict the possibility of UK citizens to obtain family reunion by going to another Member State to be with their family and then returning, ie the so-called Surinder Singh route.
4. Tougher and longer re-entry bans for foreign rough sleepers, beggars and fraudsters
This assumes that re-entry bans are possible at the moment for such persons. That’s clearly not the case for rough sleepers and beggars: Article 15(3) of the EU citizens’ Directive states unambiguously that a ban on entry cannot be imposed where a person was expelled for grounds other than public policy, public security and public health; and Article 27(1) states clearly that such grounds ‘cannot be invoked to service economic ends’. This rule could possibly be overturned by EU legislative amendment, but it is possible that the CJEU would find that this would constitute a disproportionate restriction on free movement for those who were entering to obtain work later. So a Treaty amendment might be needed.
For those convicted of fraud, they would arguably have been expelled on grounds of public policy, public security and public health. In that case, entry bans are allowed, but EU law does not set absolute upper limits on the duration of those bans. Instead, Article 32 of the citizens’ Directive merely sets out a right to challenge them. So in principle longer and stricter entry bans for fraudsters are possible, as a matter of national law, under the status quo. However, if Cameron wants to make sure that they cannot be challenged successfully in individual cases as a disproportionate limit on free movement rights, a legislative amendment or Treaty amendment might be necessary.
5. Stronger measures to deport EU criminals
Currently, as well as possible expulsion for not meeting the economic criteria for free movement, EU citizens can be deported if they are a ‘sufficiently serious threat’ to public policy or public security. Expulsion decisions must be made on a case-by-case basis and a criminal conviction cannot automatically lead to expulsion. In principle, there is a higher degree of protection against expulsion for those who have got permanent residence status (due to living in a Member State for more than five years) or who have lived in that Member State for more than ten years. However, the CJEU’s case law has somewhat undercut that extra protection in practice.
Any changes to the rules on deportation after a criminal conviction would require at the very least a legislative amendment. It is likely that they would also require a Treaty amendment, since the protection against removal on grounds of public policy, public security or public health is set out in the Treaties for EU migrant workers (Article 45(3) TFEU).
6. Longer waiting periods for free movement of persons from new Member States
The details of each new Member State’s adaptation to EU law are set out in each accession treaty, which has to be approved by each Member State. The UK would be in a position to veto any future accession treaties unless longer waiting periods for free movement are included. So this is entirely consistent with the status quo.
7. EU citizens to have a job offer before entry
EU legislation says that EU citizens can stay for three months as long as they have a valid passport and do not apply for social assistance. After that point, they can stay if they are workers, self-employed persons, students or otherwise have sufficient funds. Also they can stay if they are a job-seeker, subject to the proviso (described above) that they have a genuine chance of getting work. So this proposal would require a legislative amendment.
In fact, it would also require a Treaty amendment, since the CJEU has said (in Antonissen) that the Treaty right to free movement of workers also applies to job-seekers, giving them the right to enter and stay in a Member State to look for work.
If such an amendment were made, it would clearly be unfeasible in practice, since it is not realistic to check at the border or before getting on transport if all EU citizens have job offers, considering also that there are many other legal reasons for EU citizens to come to the UK (short-term visits, self-employment, for study, or self-sufficient stay).
8. No taxpayer support for job-seekers
The EU legislation already rules out social assistance for job-seekers, so this reflects the status quo. However, the CJEU has said that job-seekers have a right to access benefits linked to labour market participation, if they have a link already with the labour market in question. While David Cameron suggested that the UK’s future Universal Credit would not fall within the scope of the CJEU’s case law, that would likely be challenged in practice. So a Treaty amendment is likely necessary as regards current rules, and possibly necessary as regards universal credit.
9. Payment of child benefit to children abroad
Non-payment of child benefit to children living in other Member States is arguably indirectly discriminatory, since it affects more non-UK nationals than UK nationals. Since the equal treatment of workers is guaranteed by the Treaties, a Treaty amendment would likely be necessary to put this change into effect as regards workers’ family members.
Barnard & Peers: chapter 13