Wednesday 30 November 2016

Could the UK stay in the single market after leaving the EU? The planned case on Article 127 EEA

Steve Peers

Might the UK stay in the single market, even if it leaves the EU? This is the issue to be raised by planned litigation relating to the UK’s position in the European Economic Area (EEA) – a zone set up by a treaty between the EU, its Member States, and Norway, Iceland, and Liechtenstein, which extends EU single market rules to the latter three States. It raises issues of both international and domestic law; but first, it would be useful to explain the EEA further.


The EEA treaty was originally signed in 1991, adjusted in 1992, and come into force at the start of 1994. The aim was to extend the EU’s internal market (known as the ‘single market’ in UK political debates) to the countries which were part of the European Free Trade Area (EFTA). In the event, three of those countries decided to join the EU from 1995 (Sweden, Austria and Finland), and Switzerland decided not to sign up after all, relying on a separate network of treaties with the EU.

Some believe that the EEA is the same as the EU, but there are many differences. The EEA does not include the EU’s common trade policy, and indeed EFTA states have signed separate trade deals with non-EU countries. It also does not include EU policies on tax, justice and home affairs, foreign policy, agriculture, the single currency and fisheries, although EFTA states have signed separate agreements with the EU on aspects of these issues. In particular, while all EFTA states have signed up to the EU’s Schengen system for the abolition of internal border controls, that is a separate issue from the EEA (indeed, the treaties to become Schengen associates were signed later than the EEA).

The EEA does include applying EU laws on the free movement of goods, services, capital and people, along with the freedom of establishment.  However, EFTA states can apply an emergency safeguard to limit free movement, including the free movement of people. The EEA also involves participation in most of the EU laws concerns labour and environment, as well as competition and state aids. EFTA states make contributions to participate in EU programmes and to assist the development of poorer EU countries; but the money does not go into the EU budget and the EFTA countries have more control over how it is spent.

As regards institutions, the EFTA states have no role in EU institutions, but rather the EEA has its own bodies, where EFTA states are consulted on draft EU laws, but do not have a vote on the EU decision-making process. They are expected to apply new EU laws within the scope of the EEA (which, as noted already, does not extend to many areas of EU law-making), but they can in principle reject them, subject to the possibility of EU retaliation. They are not directly subject to the EU court, but instead take part in an EFTA Court, which usually follows the EU court’s case law – although note that some EFTA Court judgments are not binding.

Some argue that the UK should stay part of the EEA on at least an interim basis after leaving the EU, while negotiating a longer-term agreement. The basic arguments for this position are set out here; see also the EUreferendum site. One thing is clear: staying in the EEA was not on the referendum ballot paper. While comments by some on the Remain side or Leave side suggested that a vote on EU membership was also a vote on single market membership, that is not what voters actually voted on.

How to leave the EEA?

Leaving the EEA has two dimensions: international law and national law. Internationally, the only explicit way to leave the EEA is by invoking Article 127 of the EEA treaty, which says that any party can leave with at least 12 months’ notice. There is no explicit requirement to name the date of departure when giving the notice, so arguably the UK could specify the date of departure as the same date it leaves the EU. Therefore, as long as the UK gives notice to quit the EEA at least twelve months before Brexit Day, it could align leaving the EEA with leaving the EU.

What if the UK doesn’t give that notice? In that case, although Article 127 is the only explicit way to leave the EEA, some argue that that the UK would leave the EEA automatically when it leaves the EU. Why? Firstly, because the clause on territorial scope (Article 126) refers to the EU and EFTA states, but not to any other countries. Also, many of the substantive legal rules refer to the EU and EFTA states. Article 2(c) defines the contracting states as regards the EU and its Member States, and allocates responsibility as between them, but does not mention EFTA states.

If this analysis is correct, the UK could still rejoin the EEA after (or at the same time) as leaving the EU. In that case, Article 128 says the UK would have to join EFTA and apply to rejoin the EEA, subject to EU and EFTA states’ agreement, because only EU and EFTA states can join up to the EEA. (Article 128 isn’t, by itself, a good basis for arguing that the UK would have to leave the EEA if it leaves the EU, because it only addresses which countries may join the EEA in future, not which countries are members now and whether they might retain membership or implicitly lose it if they leave the EU or EFTA. It might, however, be referred to reinforce a conclusion based on Article 126 or other provisions).

So does the UK implicitly lose EEA membership if it leaves the EU? The answer isn’t clear, because the drafters of the EEA treaty never considered this possibility. On the one hand, the presence of an explicit clause on leaving presumes that states cannot implicitly cease to be EEA members. On the other hand, the substantive provisions and the clauses on territorial scope imply that leaving the EU is incompatible with being part of the EEA – unless the country concerned joins EFTA. That raises the question of how this would work: arguably there would be a ‘fundamental change of circumstances’ under Article 62 of the Vienna Convention on the Law of Treaties. (Note that the latter clause can’t be used as a quick route to leave the EU, since it only applies where a change was ‘not foreseen’ by the parties; but the prospect of a state deciding to leave the EU clearly was foreseen by the parties to the EU Treaties, since Article 50 TEU refers to it).  Or the other parties to the EEA could argue that the UK had committed a ‘material breach’ of the EEA by ceasing to be an EU Member State (if the UK does not join EFTA), and terminating application to the UK under Article 60 of the Vienna Convention.

The issue is arguably relevant by analogy to many other treaties which the UK signed up to as part of the EU, in particular trade agreements. Does the UK retain its status under the EU’s free trade deals with Korea, Canada and many other countries automatically on Brexit Day, or does it lose that status and have to negotiate a separate treaty? (Arguably, the international law principle of continuity of treaties could play a role here; and the legal issue also arises of whether the UK can start negotiating replacement treaties, if it has to, before Brexit Day).  

National law aspects

The termination of the UK’s EEA membership raises different issues as a matter of national law – which perhaps is the purpose of the planned litigation. If the UK government gives notice under Article 127, or asserts that it will implicitly cease being a party to the EEA on Brexit Day, does Parliament have to give its approval?

If the government is legally obliged (as a matter of international law) to give notice of leaving the EEA separately from the Brexit process, then the case is arguably analogous with the Miller case recently decided by the High Court, and now on appeal to the UK Supreme Court.  That case raises the question of whether the UK government’s royal prerogative extends to the termination of the UK’s EU membership, or whether Parliament must approve such use of the prerogative because leaving the EU would terminate rights conferred by an Act of Parliament. Since EEA membership is referred to in the European Communities Act, and extends many (though not all) of the same rights conferred by the EU Treaties, the answer to this question which the Supreme Court ultimately gives in the Miller judgment should logically apply by analogy to the EEA.

Therefore, in this scenario, if Parliament is obliged to approve withdrawal from the EU, it is also obliged to approve withdrawal from the EEA. And since EEA membership was not on the referendum ballot paper, the force of the political argument that Parliament ought to follow the view of the majority of those voting that the UK should leave the EU is not as strong. There will undoubtedly be a political argument that the referendum vote should apply by analogy – since to some extent the issues raised often by the Leave side as regards EU membership (migration of EU citizens, contribution to the EU, control over law-making) apply also to the EEA. But, as noted already, there are possible counter-arguments: the free movement safeguard clause in the EEA, the different nature of budget contributions, and the more limited scope of the EEA compared to EU law. Participation in the EEA could also, as some Leavers have suggested, be limited in time: an interim status pending negotiation of a longer-term framework for UK/EU relations.

On the other hand, if there is no distinct legal obligation to notify departure from the EEA, because its application to the UK will necessarily cease when the UK leaves the EU, then any Parliamentary vote to approve invoking Article 50 should logically encompass also the end of EEA membership, and the legal challenge relating to the EEA may find it harder to succeed. Or if the UK government succeeds in its appeal in Miller, it would be hard to convince a court that leaving the EEA raises distinct questions from leaving the EU.

In any event, any fresh litigation on the EEA could provide an opportunity to argue about whether an Article 50 notice is revocable – and it might be argued that that issue, and/or the issues about termination of EEA status as a matter of international law, should be referred to the ECJ to decide.

See also blog posts by:

Meme: Steve Peers

Barnard & Peers: chapter 25, chapter 27

Sunday 27 November 2016

Rights on the Chopping Block: The Great Repeal Bill and the Ghost of Henry VIII

Joelle Grogan, Lecturer, Middlesex University

Perhaps the most curious aspect of the Great Repeal Bill is that ‘repeal’ is a misnomer: it will not repeal to a significant extent at all. Rather, the ultimate Act will initially convert the existing acquis of EU law into British law at the point of formal separation from the EU, following the completion of Brexit negotiations. This conversion will provide some degree of certainty and continuity in the inevitable turmoil which will follow UK withdrawal from the EU as the (at least) initial changes of domestic law will be relatively minimal.

The element of ‘repeal’ in the Great Repeal Bill will instead take the form of the incorporation of a Henry VIII clause. Named for the King who forced the passing of the Statute of Proclamations 1539 empowering his decisions both to change and have the same force as legislative acts, such a clause enables government to repeal or amend primary legislation by means of a secondary act with limited or no further parliamentary scrutiny.[1] For the complexity, intricacy and sheer mass of EU law which forms part of UK law (for a cake analogy), delegating decisions to secondary legislation makes pragmatic sense: does parliament really need to be bogged down with issues such as labelling regulations when there are more important debates to be had, trade deals to be made, and economic and political crises to be resolved?

Beyond the answer: yes, executive action during Brexit absolutely should be monitored,- the consequence of a Henry VIII clause in the Great Repeal Bill from a rights perspective is that the question of whether rights based on EU norms are compatible with post-Brexit Britain could be decided by a Minister, rather than through Parliamentary debate and an Act of Parliament. In this post, I explore the ghost of Henry VIII’s tyranny in his namesake legal clause, and outline some of the possible impacts of a Great Repeal Act and a Henry VIII clause on human and fundamental rights through the (somewhat shoe-horned) metaphor of the fate King Henry’s six wives.

The Ghost of Henry VIII

Henry VIII clauses are intrinsically problematic for democratic governance: they levy the convenience of a (relatively) quick amendment against the scrutiny of parliamentary oversight. Immediately after Henry VIII’s death in 1547, the Statute of Proclamations was repealed. No man, not even a king, should have such power to make, amend or repeal primary legislation without Parliament. For this reason, Henry VIII clauses have been subject to consistent criticism, and an emphasis on their use only when absolutely necessary: the 1932 Donoughmore Committee Report on Henry VIII clauses (for which only nine could be found in contemporary Acts) found that their use might only be when ‘demonstrably essential’ and must be justified by the Minister ‘to the hilt’. In a 2010-11 Report, the House of Lords Constitution Committee found that

‘the use of Henry VIII powers, while accepted in certain, limited circumstances, remains a departure from constitutional principle… [which] should be contemplated only where a full and clear explanation and justification are provided.’[2]

Henry VIII clauses are, however, not foreign to EU law in the UK. Article 2(2) European Communities Act 1972 is itself a Henry VIII clause, allowing the amending of UK law to comply with EU acts. The difference here, as has been pointed out, is that EU acts go through multiple layers of legislative checks before becoming law, and so not comparable in a situation post-Brexit.

The issue is scale: it is now beyond an academic debate to consider the scope and breadth of EU norms incorporated into British law. Simply enumerating some of the sweeping areas of influence indicates only a shadow of the sheer scale of replacement, repeal and revision ahead for Parliament: external trade; competition; financial and banking services; telecommunications and data protection; fisheries and agriculture; EU standards agencies; cooperation in matters of security and the criminal law; and the environment. This also does not account for rights based on EU law, including existing EU residents’, workers’ and consumers’ rights, or even the right to be forgotten. One of the Supreme Court Judges hearing the appeal on the Article 50 judgment, Lady Hale, raised the question of whether a simple Act would be enough to authorise the government to give notice, or whether the 1972 Act would comprehensively have to be replaced prior to triggering Article 50. Though there was no elaboration in the speech, - speculating, this could perhaps be a contrast between the rumour of a ‘short three-line bill’ to authorise Brexit, and a more comprehensive bill clarifying the Brexit process, transition arrangements and the post-Brexit legal situation. However, the ECA 1972 cannot be repealed prior to the conclusion of the withdrawal agreement, as EU law continues to be applicable within the UK until that point. The (current) official stance is not such a comprehensive replacement, ostensibly leaning instead towards a do-now, fix-later approach.

To shoe-horn the metaphor, a Henry VIII clause in a Great Repeal Act will hand Ministers an executioner’s axe to a range and breadth of law based on EU norms which is still not fully understood or accounted for. This is by no means alarmist argument, as widening the scope of power under a Henry VIII-type clause to excise the influence of the EU has been advocated by a barrister for the Leave Campaign.  For all the heralding of taking control back to the UK Parliament, Henry VIII clauses, especially in the extended scope necessary to cope with large scale repeal, will be less democratic, create more legal uncertainty, and take the reins of control away from Parliament and (potentially) rights away from individuals. Even as the controls imposed on secondary legislation is an open issue, the latent threats to cornerstones of British constitutionalism, parliamentary sovereignty and the rule of law, are evident:  the power to amend primary legislation by Ministers acting independently of parliamentary scrutiny and oversight runs counter to democracy, legal certainty, and the ultimate supremacy of Parliament.

The ultimate irony is that, for all the rhetoric of democracy and a return to parliamentary sovereignty, the powers on which Government is relying to leave the EU are royal, not democratic. Beyond the use of a Henry VIII clause, the question of who is permitted to trigger Article 50 currently awaiting appeal before the Supreme Court, is a fight between a royal prerogative and parliamentary sovereignty. In the current approach to Brexit, there seems a concerning commonality with the character of Henry VIII beyond his namesake clause in the use of unchecked executive power.

The (Possible) Fates of Fundamental Rights

To sketch out some of the possible consequences of the Great Repeal Bill and the Henry VIII clause on rights, we can follow the rather grim framework provided by Henry VIII’s wives. Their fates followed a (tragic) pattern: divorce, beheaded, died, divorce, beheaded and survived. We should rightly be concerned for the fates of fundamental rights protections post-Brexit in the divorce between the UK and the EU which encompasses not only the likely biggest divorce settlement in history, but will also see the division and separation of significant rights and protections away from UK citizens and residents.

The right to complain to, or seek a decision from, EU Institutions will be beheaded by Brexit. For instance, post-Brexit, citizens and residents will not have the opportunity to complain to the Commission for a breach of EU law or a violation of their rights by UK authorities. Under the current schema, if their complaint is upheld, the Commission can make a request to the UK that it respects the rights of its citizens and residents, or even bring proceedings in the Court of Justice for a violation of EU law. Referrals and the limited right of direct access to the EU’s court system could be similarly cut off by Brexit, relying on the domestic judicial system and common law and ECHR rights.

This is linked to a significant death in the UK arising from Brexit: the rights which arise from the Treaties, which cannot be restored or replicated in UK law. These rights would include, for example, the rights of EU citizenship, and free movement between Member States. Notably, however, it would mean the death of the application of the EU Charter of Fundamental Rights in the UK. The EU Charter, which can be relied upon in national proceedings when the subject-matter of the litigation falls within the scope of EU law has more normative clout than the comparable European Convention on Human Rights, operative in the UK under the Human Rights Act 1998. This means, for instance, that a violation of the EU Charter requires the disapplication of the offending law, while a violation of the ECHR under section 4 HRA 1998 can, at worst, only result in the issuing of a declaration of incompatibility or a signal to Parliament that it should consider amending the legislation.[3]

Serious questions highlight the uncertainties which will arise as a consequence of the divorce between the CJEU and the UK judicial systems. This will cause issues for the interpretation for law which has been wholesale incorporated into UK law: should UK courts follow subsequent cases regarding the interpretation of laws by the Court of Justice? In situations where the similarity of the law is required for reasons of trade (for example, product specifications), this would follow. Should claimants then continue to plead EU case law before British courts as persuasive precedent? And if so, how far, and in which areas? The uncertainty which would arise from the contrary interpretation of a UK law based on EU norms would also need resolution: should a subsequent judgment of the Court of Justice take precedence over a UK ruling? These are only some of the ‘known unknowns’ of Brexit, no doubt there are far many more currently unaccounted for.

Further, there will be the possible beheading of rights based on EU law, which can be replicated in UK law, but may be contentious in a new political regime: for example, consumer and workers’ rights. The existence of a Henry VIII clause endangers these rights and others, as they could be removed either accidentally or intentionally by amendment of the primary act by executive decision. As outlined above, there would be no recourse to EU institutions to challenge this, or to the Courts if there is not explicit protection for these rights at common law or in the ECHR.

After such gruesome fates – one survivor will be the ECHR which, through the Human Rights Act 1998, does not depend on the EU for its continued application in the UK law. As I’ve hypothesised, it’s possible – if unlikely - that we could witness a new relevance and force with the ECHR to fill a gap in rights protection. The ECHR does not have equal normative clout as directly effective EU rights, as evidenced by Benkharbouche & Janah. Other survivors would be rights that have existed at common law, such as the rights to personal security, liberty, and property. It’s possible even, that there will be a new impetus for a ‘British Bill of Rights’, however misplaced that optimism may be. 

Whatever ultimately survives the Great Repeal Bill and a Henry VIII clause, it will be a shadow of a larger, and likely uneulogized, death. The last seven decades have been building a progressive narrative of strengthening and enhancing fundamental rights across Europe and the world. Hopeful and aspirational international declarations of human rights have led progressively towards the adoption and implementation of more robust and justiciable instruments for the protection of fundamental rights in the domestic sphere. Amid political, social, legal and economic crisis, – this narrative is dying. In the current climate, it is perhaps more than the ghost of Henry VIII that will haunt us.
Image credit: Hans Holbein

[1] House of Lords Select Committee on the Scrutiny of Delegated Powers, HL 57 1992-93, para 10.
[2] HL Constitution Committee 6th Report, HL 51 2010-11, para 6.
[3] For example Benkharbouche v Sudan, and Janah v Libya wherein the Court of Appeal held that the embassies of Sudan and Libya could not rely on the State Immunity Act 1978 to bar employment rights claims under the EU Working Time Directive, as it would violate Article 47 CFR which in turn required the disapplication of the Act. The Court found a violation under Article 6 ECHR, but could only issue a declaration of incompatibility. 

Wednesday 16 November 2016

The purely internal situation in free movement rules – Some clarity at last from the ECJ

Daniel Sarmiento, Professor of EU Law at the University Complutense of Madrid*

The Court of Justice’s judgment in Ullens de Schooten, rendered yesterday, is a very welcome development. The Court’s Grand Chamber has put some order in a traditionally chaotic and obscure area of the case law: the definition of a purely internal situation in free movement cases referred by national courts in the context of preliminary reference proceedings. It was a life or death issue for the success of the case, because depending on whether the claims of the applicant – who sought damages on the grounds that he was wrongly convicted of running an illegal laboratory – proved to have a trans-frontier link or not, he or she would benefit, or not, from free movement rules. After many years of disorderly case law, mostly in chambers of five judges, the Grand Chamber has taken the reins and provided clear guidance.

In a nutshell, Ullens de Schooten confirms in general terms what the Court seemed to be doing in the past: as a rule, transfrontier links with free movement rules are quite flexible and easy to prove, but when there is no link whatsoever, then only in four different scenarios a national judge will be able to rely on free movement rules. The scenarios are the following:

First, when it is not inconceivable that nationals established in other Member States have been or are interested in making use of those freedoms for carrying on activities in the territory of the Member State that had enacted the national legislation in question, and, consequently, the legislation, applicable without distinction to nationals of that State and those of other Member States, was capable of producing effects which were not confined to that Member State. This is the Blanco Perez y Chao situation.

Second, when the referring court makes a request for a preliminary ruling in proceedings for the annulment of provisions which apply not only to its own nationals but also to those of other Member States, and the decision of the referring court that will be adopted following the Court’s preliminary ruling will also have effects on the nationals of other Member States. This is the Libert situation.

Third, when free movement rules may prove to be relevant in a case confined in all respects within a single Member State, where national law requires the referring court to grant the same rights to a national of its own Member State as those which a national of another Member State in the same situation would derive from EU law. This is the Guimont situation.

Fourth, cases in which, although the facts of the main proceedings are outside the direct scope of EU law, the provisions of EU law have been made applicable by national legislation, which, in dealing with situations confined in all respects within a single Member State, follows the same approach as that provided for by EU law. This is the Dzodzi situation.

It appears from yesterday’s judgment that the Court is putting the burden of proving the existence of any of the enumerated situations on the referring judge. This appears to be the case, because the Court makes in paragraph 55 a very specific reference to article 94 of the Rules of Procedure, a provision that lists the contents that must be included in an order for reference pursuant to Article 267 TFEU. In other words: the Court will be happy to apply any of the four exceptions to the purely internal situation rule, but only if national courts make an effort to explain why the referred case falls under any of these four situations. If the national court simply makes no effort whatsoever, then the Court will do what it did yesterday in Ullens de Schooten: declare the absence of a transfrontier link and the lack of arguments justifying the application of any of the four situations.

This is good news for lawyers that deal with free movement rules, particularly before national courts, but it does not solve the genuine problem. In fact, the failings of the previous case-law were not only to be found in a lack of consistency, but also in the difficulty to apply the standards that have now been blessed by the Grand Chamber. Take the Blanco Pérez y Chao exception: to argue that it is not inconceivable that nationals established in other Member States have been or are interested in making use of free movement rules is not much help, because it is difficult to imagine a case in which a national from another Member State may not, in hypothesis, “be interested” in making use of free movement. The Opinions of Advocates General Wahl and Kokott in the cases of Venturini and ETI, respectively, show how tricky this criterion can be.

So the Court has taken an important step, but probably not enough to provide all the much-needed clarity that free movement rules still need. But it’s a first step in the right and very welcome direction.

The judgment also speaks highly of the Grand Chamber’s role as a forum in which to deliver clear guidance over past and erratic case law. This has always been the role of the Grand Chamber, but it sadly lost its way in the past years. For too long a time Grand Chamber judgments were cryptic, sometimes contradictory and lacking a lot of much needed legal reasoning. Things have improved in the past year, and this must be the result of the new President, who has voiced his priorities in public, among which stands out the need to recover the role of the Grand Chamber as a forum to set guidance and principle. Ullens de Schooten might be a little frustrating, but it does provide much more than the Grand Chamber of the past provided to its infinitely more frustrated readers.

*This post previously appeared on the Despite our Differences blog

Barnard & Peers: chapter 11, chapter 12, chapter 13, chapter 14, chapter 15

Photo credit: instructables

Saturday 12 November 2016

Human Rights and the European Arrest Warrant: Has the ECJ turned from poacher to gamekeeper?

Steve Peers*

From its panicked conception in the febrile months following the 9/11 terrorist attacks, the European Arrest Warrant (EAW) has been the flagship of EU criminal law. Replacing traditional extradition law with a fast-track system which scraps most of the traditional restrictions on extradition, it has alarmed critics concerned by miscarriages of justice, but thrilled supporters who welcomed the speedier return to justice of a greater number of fugitives.

Despite qualms by national constitutional courts, the ECJ has long been insouciant about the human rights critique of the EAW. It dismissed a challenge to the validity of the EAW law on human rights grounds, and (in effect) ridiculed a national court which asked if it was possible to refuse to execute an EAW due to human rights concerns, answering a ‘straw man’ argument the ECJ invented instead of the serious questions sent by the other court. In its Melloni judgment, the ECJ placed a ceiling on the application of national human rights protection to resist execution of an EAW; but it never enforced a corresponding floor for those rights. Again and again, the Court ruled that national courts could only refuse to execute EAWs on the limited grounds expressly mentioned in the EAW law, instead focussing exclusively on the need to make the EAW system as effective as possible.

However, since the entry into force of the Lisbon Treaty, this staunch approach has been mitigated by the adoption of six new EU laws on various aspects of fair trial rights – five of which also confer procedural rights on fugitives challenging the application of an EAW. (On the implementation of the first two of these laws, see the report just adopted by the EU’s Fundamental Rights Agency). In the last year, the ECJ has begun to interpret these laws (see the judgments in Covaci, Balogh and Milev).

But even apart from these fair trials laws, the ECJ in the last eighteen months has begun to show a striking concern for ensuring at least some protection for human rights within the EAW system. Last year, in Lanigan (discussed here), the Court ruled that if a fugitive was kept in detention in the executing State while contesting an EAW there, the limits on the length of detention in extradition cases set out in the case law of the European Court of Human Rights (ECtHR) apply, by virtue of the EU Charter of Fundamental Rights.

This spring, the ECJ turned its attention to detention conditions in the Member State which issued the EAW. Following soon after concerns expressed by the German constitutional court on these issues (discussed here), the ECJ ruled in Aranyosi and Caldaruru that the German authorities, when executing EAWs issued by Hungary and Romania, had to consider concerns raised by the fugitives about prison overcrowding in those countries, which had led to ECtHR rulings finding violations of Article 3 ECHR (freedom from torture or other inhuman or degrading treatment or punishment). The national court had to apply a two-step procedure in such cases, assessing whether there was a) a systemic failure to ensure decent prison conditions in those States, and b) a ‘real risk’ that the individual fugitive would be subject to such conditions if the EAW was executed.

What if these tests were satisfied? The ECJ was unwilling to backtrack from its position that the list of grounds to refuse to execute an EAW set out in the EAW law is exhaustive. Instead, it ruled that the executing State’s authorities had to postpone execution of the EAW until the situation in the issuing State had improved. (The EAW law is vague about grounds for postponing the execution of an EAW, and the ECJ had already ruled in Lanigan that the deadlines to execute an EAW set out in the law could, in effect, be ignored if necessary). If the fugitive was detained in the executing State in the meantime, the limits on detention set out in Lanigan applied, with the additional proviso that a fugitive could not be detained indefinitely pending execution of an EAW. (In the later case of JZ, the ECJ aligned the definition of ‘detention’ in the EAW with the ECtHR case law on this issue).

This was only the beginning of the ECJ’s scrutiny of issuing States’ laws and practice in the EAW context. In Bob-Dogi, the Court ruled that Hungary could not simply issue EAWs as a stand-alone measure, with no underlying national arrest warrant, inter alia because the purpose of requiring the prior issue of a national arrest warrant was to ensure the protection of the suspect’s fundamental rights. The previously paramount objective of efficiency of the EAW system – which would obviously have dictated the opposite conclusion – was mentioned only in passing. Moreover, the Court side-stepped its prior refusal to accept additional grounds for refusal to execute an EAW, concluding that the EAW had not been validly issued in the first place.

Next, in Dworzecki, the ECJ insisted that a Member State issuing an EAW following a trial held in absentia had to have made proper efforts to find the fugitive before the trial. In this case, the law expressly allows for non-execution of the EAW.

Finally, in a trilogy of cases decided last week, the Court ruled that issuing Member States don’t have full discretion to decide what a 'judicial authority' is, for the purpose of issuing EAWs. The concept extended beyond judges to include those administering the justice system, such as Hungarian prosecutors (Ozcelik). However, it does not extend to the Swedish police (Poltorak), or to officials in the Lithuanian justice ministry (Kovalkovas). (British readers may wish to compare these rulings to the Supreme Court’s ruling in the Assange case).

Again, as in the Bob-Dogi judgment, the Court side-stepped the ‘exhaustive grounds for non-execution’ problem which it had previously created for itself, by ruling (in Poltorak and Kovalkovas) that the relevant EAWs had never been validly issued at all. Also, in an interesting use of ‘soft law’, the Court ruled that Sweden and Lithuania could not argue that those invalid EAWs should remain valid for a limited period until they changed their laws, since the Council had warned them back in 2007 in an evaluation report that these practices infringed the EAW law. Criminal defence lawyers – and justice ministry officials – may want to look at the Council evaluations of all Member States in detail in this light, since they contain many other criticisms of national implementation of the EAW.


Has the Court turned from poacher to gamekeeper of human rights in the EAW context? Certainly there are still many concerns about miscarriages of justice as regards the EAW (see the Fair Trials website, for instance). But the rulings suggest a significant change of direction, which addresses some concerns and may have opened up the door to addressing others. What might explain this turn-around?

One factor may be the ruling of the German constitutional court on detention conditions in the EAW context, although it’s notable that the ECJ was never previously receptive to constitutional courts’ concerns about the EAW. Another factor may be a willingness to compromise after the ECJ’s controversial ruling on EU accession to the ECHR, in which it lambasted the draft accession treaty for (among other things) not taking sufficient account of the ECJ’s case law on mutual recognition in Justice and Home Affairs matters, which only allowed for human rights to trump mutual recognition in ‘exceptional’ cases. It’s possible that having marked its territory in that judgment, the ECJ felt it could relax and adopt a more flexible approach of its own volition (and under its own control), which might facilitate discussions on renegotiation of the accession agreement.

Another aspect of the background to this case law may be concerns about the adequate protection of human rights and the rule of law in a number of Member States. The formal process for sanctioning or warning Member States about such concerns is set out in Article 7 TEU, but the EU is unwilling to use it at the moment. The preamble to the EAW law says that the EAW system can only be fully suspended as regards an entire Member State if Article 7 is invoked. The ECJ clocked that provision in Aranyosi and Caldaruru, but then concocted the compromise position of postponing execution of EAWs in individual cases until concerns about detention conditions could be addressed: a measured, individualised solution for these particular human rights problems with the EAW.

Furthermore, the guarantee of judicial control of the issue of EAWs in recent judgments is expressly justified by reference to ‘the separation of powers which characterises the operation of the rule of law’. Despite the reluctance of the EU to chastise Member States for systematic concerns about the rule of law, the CJEU’s rulings at least ensure that any general human rights concerns are addressed at the level of application of EU legislation.

Indeed, these recent judgments might not be the end of the story: they can fuel arguments for the postponement or invalidity or EAWs due to other human rights concerns too. In particular, fugitives could argue that the prospect of long pre-trial detention in another Member State is also a reason to postpone execution of an EAW – although this argument is only coherent if the fugitive is not being detained in the executing State in the meantime. Already the Aranyosi and Caldaruru judgment raises awkward questions about how to judge what happens in another Member State’s prisons – so much so that the German courts have referred the Aranyosi case back to the CJEU with further questions.  Postponing the execution of an EAW does not, by itself, tackle the underlying problem of prison overcrowding, and it leads to the risk that those who have committed crimes may consider moving to another Member State to increase their odds of enjoying de facto impunity for them.

This strengthens the case for EU legislative intervention as regards prison conditions and length of pre-trial detention in the EAW context. The Commission issued a Green Paper on this issue back in 2011, and Member States were not enthusiastic. But the Commission has indicated in light of the recent rulings that it may make a proposal in future. (See also the new report of the EU Fundamental Rights Agency on these issues). This would be a good opportunity to make further reforms to the EAW system, to require a proportionality check before issuing EAWs in the first place – so that no one is subject to an EAW for the theft of a piglet, or someone else’s beer at a house party – and to build in more frequent use of European Supervision Orders (a form of ‘Euro-bail’), the EU laws on transfer of prisoners and sentences, and the use of modern technology to conduct more criminal proceedings with the virtual (but not the physical) presence of the suspect (see generally the Ludford report on possible reforms of the EAW system). There is a better balance between effective prosecutions and human rights concerns waiting to be struck.

Barnard & Peers: chapter 9, chapter 25
JHA4: chapter II:3, chapter II:4
Photo credit: picture – alliance/Horst Galuch

* This post is based on a keynote speech I gave on 10th November 2016, at a conference on criminal justice and human rights organised by the EU Fundamental Rights Agency in Bratislava

Sunday 6 November 2016

In-Between the Lines of the High Court Brexit Judgment: EU Transnational Rights and their Safeguards

Francesca Strumia, Lecturer in Law, University of Sheffield

This post casts another look at the recent High Court judgment on the government’s power to start the process of UK withdrawal from the EU. It reflects further on the EU law implications of the judgment, beyond the political furore that it has raised and possibly beyond the immediate contingencies of Brexit. The argument is that the judgment, albeit focusing on a question of UK constitutional law, also engages with the problem of safeguards for transnational rights – e.g. rights of British nationals in other Member States- in the process of a Member State’s withdrawal from the EU. Questions that the judgment prompts in this respect bear on EU law from three distinct perspectives that warrant closer analysis.

The immediate question that the judgment solves is whether the executive can rely on its prerogative powers covering international relations to give notice of withdrawal from the European Union under article 50 TEU. This is a question of UK constitutional law, as is the answer offered by the High Court: the executive can do no such thing. This is – the constitutional law argument goes – in good part because the exercise of prerogative powers cannot encompass alteration of domestic laws. Whilst withdrawal from the EU through the article 50 process will inevitably affect a large body of law that has become domestic through the 1972 European Communities Act (ECA).

In particular, the High Court, building on the parties’ submissions, distinguishes three classes of EU law rights that have gained domestic law status (par. 57-61). A first class includes rights that could be replicated in UK law following withdrawal from the EU, such as rights descending from EU employment law. A second class includes rights that British nationals enjoy in other EU Member States, such as the right to reside and work. A third class includes rights, such as the right to vote for the European Parliament or to trigger preliminary references at the CJEU, that are not capable of replication in domestic law following withdrawal from the EU. According to the High Court, it was Parliament that, through the ECA, brought into effect these three classes of rights (par. 62-66). And thus none of the three classes can be repealed through the executive prerogative powers (par. 92).

The reasoning flows as to classes one and three. However, it runs into some difficulty as to class two. Rights in this class are, in effect, transnational rights: they are grounded in EU law, and ultimately descend from UK membership in the EU, but they are implemented through the domestic law of other Member States, and they are enforced in the courts of other Member States. They are not UK domestic law. The High Court nonetheless files them together with the other two categories. Parliament knew and intended that as a result of the ratification of the Treaties – the argument goes – British citizens would have these rights enforceable in other Member States. This knowledge and intention on the part of Parliament is tantamount to Parliament ‘creating’ relevant rights (par. 66). As a result, the High Court decides that neither rights in classes one and three – that have been introduced in domestic law – nor rights in class two – that are ‘wider rights of British citizens’ descending from the Treaties, can be undone by royal prerogative without Parliament’s intervention (par.92).  Under cover of the same legal argument, the High Court achieves here two different results. In respect of rights in classes one and three, it applies the constitutional argument that the executive through the royal prerogative cannot alter domestic law. In respect of rights in class two, it further recognizes Parliament’s, rather than the executive’s, responsibility for altering a set of transnational rights grounded in EU law.

While the distinction is subtle, it has repercussions beyond the constitutional argument that is at the heart of the judgment. This angle of the High Court’s decision engages, albeit without explicit acknowledgment, the broader question of the necessary safeguards for transnational rights in the context of withdrawal of a Member State from the EU. The question links to EU law from three perspectives: it is grounded in the very nature of EU law; it may have a EU law answer; and the answer, whether grounded in EU law or in national choices, is bound to affect the prospects of EU law.

In the former sense, EU law has a hybrid nature: it is neither just Treaty law, nor fully domestic law, and it encompasses transnational rights. The High Court recognizes on the one hand this peculiarity of EU law as one of the distinctive legal features of the case it is hearing: principles of EU law weave a direct link between rights and obligations arising from governmental action at the international level and the content of domestic law (par. 34). On the other hand, the existence of transnational rights as part of EU law complexifies the legal issues surrounding withdrawal of a Member State. Beyond the international obligations and domestic rights that withdrawal affects, what of the transnational rights that depend on the Treaties but have vested and are enjoyed in the domestic law of Member States beyond the withdrawing one?  Are there any legal barriers to erasure of the latter rights, or are these at the disposal of the executive and/or of political decision? The question of safeguards is particularly important with regard to transnational as opposed to other classes of rights that a Member State’s decision to withdraw may affect. Holders of relevant rights may not have a voice in the political process that determines a Member State’s decision to withdraw. The High Court’s solution in this respect is to construe a set of such transnational rights – rights of British citizens enjoyed in other Member States - as domestic rights. As a result it subjects the process and conditions of their repeal to some checks and balances rather than leaving them to be washed away by government action at the international level.

The finding that transnational rights are domestic law is a dictum, and the High Court’s offered solution is but an accident of its decision on the main constitutional question. It may succumb, together with that decision, in the context of Supreme Court review. Yet, the High Court’s treatment of the issue points to a further EU law question that the Supreme Court may have to consider: whether EU law itself requires any peculiar safeguards for transnational rights as part of a Member State’s decision to withdraw. The Treaties provide scant guidance. Article 50 allows any Member State to decide to withdraw ‘in accordance with its constitutional requirements’. On its face, the text does not leave much room for EU law safeguards of any peculiar categories of rights in the process of making such decision. Yet there may be a question as to whether the duty of sincere cooperation under article 4(3) TEU, which of course binds an exiting Member State up until the point of effective withdrawal, constrains that process of decision making envisaged in article 50. Article 4(3) requires, among others, that a Member State facilitate the achievement of the Union’s tasks and refrain from jeopardizing the attainment of the Union’s objectives. Could this requirement be read to mandate peculiar safeguards, in the process of deciding and triggering withdrawal, for the position of minorities and of disenfranchised stakeholders whose rights and interests the EU purports to protect? Probably a stretch, but possibly another question that the CJEU may need to hear.

Finally, whether mandated by EU law or driven by autonomous constitutional arguments, the types of safeguards granted to transnational rights in the context of the process of deciding and setting in motion withdrawal affect the very prospects of EU law. This is a body of law that several theorists, from Philip Jessup to Kaarlo Tuori, have identified as a first concrete example of transnational law. Secession from a transnational law system, and its impact on laws that cut across borders, represent an important testing ground for the credibility and reliability of that system of law.  The point is not denying the voice of any democratic majority, or stopping Brexit. Or siding with Varoufakis’ argument that the EU is like Hotel California – one can check out, but can never leave -. The point is that the process of withdrawal, albeit set in motion by the decision of a democratic majority, has repercussions well beyond the jurisdiction and reach of that majority. First, it impinges on the status and rights of constituencies, who in the relevant democratic process were anything but disenfranchised. Second, it strips participating but opposed minorities of their transnational rights without appeal. The way these constituencies and minorities, as well as their interests will be taken into account in the decision, and process, of withdrawal will tell a telling tale as to the democratic credentials, and legitimacy of EU transnational law. In this respect, the choices of a withdrawing Member State with a strong tradition as a constitutional democracy subject to the rule of law (par. 18 of the High Court judgment) have a precedent to set, and bear responsibility, well beyond the contingencies of Brexit.

Barnard & Peers: chapter 27

Photo credit:

Thursday 3 November 2016

Brexit: can the ECJ get involved?

Steve Peers

Today’s ruling by the High Court requires the government to obtain approval from Parliament if it wishes to trigger ‘Article 50’, ie the process of withdrawing from the European Union. This short post won’t focus on the national constitutional law issues, but on the process of possible involvement of the EU courts in Brexit disputes.

The government has announced its intention to appeal today’s ruling to the Supreme Court. Some have suggested that the case might then be ‘appealed’ to the ECJ, but this misunderstands the judicial system of the European Union. There is no ‘appeal’ from national courts to the ECJ. Rather a national court may suspend proceedings and ask the ECJ some questions relating to EU law that the national court believes it needs the answers to. After the ECJ gives the answers to those questions, the national court resumes its proceedings and gives its judgment in light of them. The ECJ normally takes about 16 months to give a ruling, although it could (and probably would) fast-track a case raising fundamental questions about Brexit.

What EU law questions arise in this case? The obvious one is whether a notification to leave the EU under Article 50 of the TEU can be revoked once it is given. This is relevant because at the heart of the UK case is a dispute about the ‘royal prerogative’, ie the underlying powers of the UK executive. The royal prerogative allows the executive to conduct international relations, including decisions relating to international treaties. But prior case law makes clear that the prerogative cannot extend to taking away rights conferred by Parliament. The High Court has ruled today that this is what would happen if the executive invoked Article 50, since rights are conferred by the European Communities Act.  

Yet logically if an Article 50 notification is revocable, then the decision would arguably not as such necessarily lead to the removal of rights conferred by Parliament. Only the subsequent failure to revoke it would. The High Court assumed in its judgment that the notification was not revocable, but that’s only because the parties agreed on this. The claimants agreed that an Article 50 notification was irrevocable because otherwise it would have weakened their case. The government agreed, perhaps because it would have been politically awkward to argue the opposite.

But it’s not up to parties in a national proceeding to decide on what the correct interpretation of EU law is. Article 267 TFEU says that final national courts must send questions of EU law to the ECJ if necessary to give judgment. So the Supreme Court may decide that it wants to have this question answered.

The revocability of Article 50 is not just an issue in this litigation. It’s a broader political issue, since some politicians would like there to be another referendum before the UK fully leaves the EU, once the public knows the terms of exit. That’s only a feasible suggestion if it is possible to revoke an Article 50 notification once it’s made, given that the EU refuses to discuss the terms of exit with the UK until that notification is made.

What if the Supreme Court decides not to refer to the ECJ – is that the end of the matter? Not quite. Since the ECJ judgment in Kobler, it’s established that a Member State can be liable in damages if its supreme court gets EU law wrong without asking the ECJ questions about it. So individuals could go to a lower UK court claiming damages on this basis, and the lower court might deem it necessary to clarify the point by asking the ECJ about revocability, perhaps ordering the government not to make the Article 50 notification in the meantime.

There are several other possibilities for Brexit issues to come before the CJEU. It might be disputed what could be included within the scope of an Article 50 withdrawal agreement, and in particular whether this must be separate from a treaty on the post-Brexit EU/UK relationship. There might be other issues about that latter treaty; some say that the EU legally cannot negotiate one until the UK has fully left. Many say that the UK cannot negotiate trade deals with non-EU countries until it has left.

How could such issues reach the Court? Article 218 TFEU allows it to rule on future treaties between the EU and non-EU states, so in principle could be used. Any Member State, or the EU Commission, Council or Parliament, could invoke it. A lot of issues arise here, though. Does Article 218 apply to Article 50 at all – since the UK hasn’t left yet, and Article 50 only refers to some parts of Article 218? Is it too soon (for now) to ask about future treaties between the UK and EU, given that notification and negotiations haven’t happened yet?

Alternatively, Article 273 TFEU allows Member States to bring a dispute with each other about issues related to EU law to the CJEU by special agreement. However, the UK would have to be willing to use this provision, and it would have to find another Member State to agree to do so, in order to bring issues before the ECJ.

Other issues may arise about Brexit, even in other Member States’ national courts. An Irish court has already ruled that European Arrest Warrants issued by the UK are still valid in light of Brexit. But this issue is likely to keep arising. UK citizens living in the EU (and vice versa) might want to litigate the argument that they cannot lose their EU citizenship.

In any event, the status of British goods, services and citizens in the remaining EU will doubtless be raised in the EU courts after Brexit, either by means of interpreting EU/UK treaties and/or autonomous EU laws (governing non-EU migration, for instance).

It’s probably only a matter of time before some aspect of the Brexit issue gets decided by the EU courts; and there’s no small irony in that prospect.

Barnard & Peers: chapter 27

Photo credit: Daily Express :)

Wednesday 2 November 2016

EU Free Movement Law in 10 Questions & Answers

“We must not make a scarecrow of the law”
(Measure for Measure, 2.1.1)

Charlotte O’Brien, Senior Lecturer, York Law School, University of York

Laurent Pech, Professor of European Law, Jean Monnet Chair of EU Public Law at Middlesex University London

This post primarily aims to clarify the scope of EU free movement rules with the view of addressing some of the most common (legal) misconceptions one may regularly encounter in the British media and elsewhere. We argue that the much of the criticism of free movement has targeted a ‘straw man’, with little regard to the actual regime.

In the UK, for instance, there seems to be a wide consensus across the political spectrum on the need to restrict ‘current EU freedom of movement rules’ yet ‘current’ EU rules are often misunderstood or misrepresented. To argue that the UK has simply ‘no control’ over immigration from the rest of the EU is inaccurate. Similarly, one may regret that some EU actors tend to paint freedom of movement as one which could not be subject to restrictions and one which would be inherently connected with rules on the free movement of goods, capital and services.

These aspects and many others will be addressed below via 10 questions & answers, which should be of interest to members of the general public looking for an (hopefully) accessible and legal overview of EU free movement law. The post will end with a brief outline of the main models and possible options for the UK to consider when it will have to agree the ‘framework for its future relationship with the Union’ to quote Article 50 of the Treaty on European Union (hereinafter: TEU).

(1) Does EU Law guarantee an absolute right to move and reside anywhere in the EU?

No. Treaty rights of free movement are subject to limitations.

Article 45(3) of the Treaty on the Functioning of the European Union (hereinafter: TFEU) states that the rights to (a) accept offers of employment, (b) move freely between States to take up employment, (c) reside in other Member States, and (d) the right to stay in another Member State after employment has finished, are subject to ‘limitations justified on grounds of public policy, public security or public health’. This means, to simplify, that national authorities can adopt restrictive measures on a case-by-case basis against EU workers on any of these three grounds. Arguably the most mutable of these grounds is the public policy limitation, and Gareth Davies has argued that this limitation has been underexplored when it comes to free movement concerns, suggesting that greater use of permitted restrictions might have avoided free movement becoming as contentious an issue as it did in the UK.

Article 45(4) TFEU adds a further exception – that the free movement provisions shall not apply to employment in the public service, so that where roles are thought to be nationally sensitive, involving participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State, they may be reserved for nationals. This does not amount to a right to employ non-nationals and then treat them differently – once admitted to the labour market, they should not be discriminated against.

Similarly, there is another derogation in respect of activities connected with the exercise of official authority for self-employed persons and providers of services (see Articles 51 and 62 TFEU). Discrimination against non-nationals is allowed but only with regard to positions involving a direct and specific connexion with the exercise of official authority. This is why it would not for instance be lawful to adopt a general ban on non-UK academics providing ‘advisory work’ for UK public bodies such as the Foreign and Commonwealth Office on Brexit related matters.

The key point remains that EU Treaties have always clearly provided that free movement rights are not absolute and included in addition a number of permanent derogations to the general principle of non-discrimination on grounds of nationality. Unsurprisingly, however, a number of guiding principles have been developed by the Court of Justice to prevent an abusive reliance on these exceptions by national authorities.

Secondary EU legislation forms the ‘specific expression’ of the EU Treaty free movement rights, and sets out additional and more specific conditions and limitations. The key condition for those concerned about benefit tourism is that an EU national does not have a right to reside in a host Member State if they become an “unreasonable burden” upon the public purse. Directive 2004/38 (the “EU citizens’ Directive”, which is the source of the main legal rules on this issue) sets out the ‘categories’ of people with an EU-law based right to reside in a host Member State for longer than three months – essentially, workers/the self-employed and their family members, students, and the self sufficient. Students must have health insurance and make a declaration of sufficient resources.

In recent years, CJEU rulings have made some of these limitations more explicit. The Dano case made clear that someone who moved for the ‘sole’ purpose of claiming benefits would not have a right to reside in a member state under EU law. The Brey case approved of member states setting a right to reside condition in order for a claimant to be eligible for particular social security benefits, not just social assistance benefits. So member states have discretion over the arrangement of their welfare systems and eligibility conditions, and are entitled to set conditions tied to having a right to reside that only apply to EU nationals, and make it impossible for economically inactive EU nationals to claim benefits.

And in Alimanovic and Garcia Nieto, the CJEU emphasised that EU nationals do not have entitlement to social assistance benefits during their first three months of residence in a host Member State, or at any point at which they are classed as a ‘jobseeker’, even where the benefit in question appears to be an unemployment benefit. EU jobseekers are entitled to claim benefits that facilitate access to the labour market, but not where the benefit has a social assistance element and primary aim of the benefit is the preservation of dignity. In the Commission v UK case the CJEU appear to have extended the exclusion to full social security benefits, not just those with a social assistance element. Economically inactive EU nationals must be self sufficient in order to have a right to reside, and EU nationals who are workers must demonstrate that their work is genuine and effective.

Furthermore, there are some geographic limitations – free movement of persons applies for people moving from the Overseas Countries or Territories associated with the Union (OCTs), to the EU, but does not apply to people moving from the EU to OCTs as will be explained below.

(2) Does EU Law prevent temporal and geographical exceptions?

It would be wrong to think that EU law has never allowed for some extensive geographical and temporal exceptions with respect to the free movement of people.

While the default principle is that EU law applies in the territory of all the Member states, some exceptions exist especially when it comes to overseas regions and territories of relevant Member States (so much so that there is a specialised field of study known as EU Law of the Overseas). This means for instance EU free movement law does not uniformly apply to the whole of the territories of all the Member States. The relevant legal framework is rather complex. In a nutshell, there is free movement in one direction only. Inhabitants of the countries making up the Netherlands Antilles may move to any EU Member State as they are Dutch and EU citizens, but EU citizens from any other Member State do not have symmetrical rights to move there. This is lawful provided that the authorities of the countries of the Dutch Caribbean apply the same restrictions on entry and residence equally to the nationals of the Member State with which it is associated and the nationals of other EU Member States (authors are grateful for Prof Kochenov’s insight on this issue. For more details on ‘one-way EU free movement’ with respect to the OCTs, see his article here).

But one does not have to go overseas to see territories where the application of EU law may vary dramatically depending on the subject matter. To give a single example, while EU rules on free movement of goods apply to the Channel Islands, the rules relating to the free movement of persons and services do not (see Protocol No 3 to the UK’s Act of Accession). 

To make matters even more complex, EU free movement rules may apply to nationals of non-EU Member States. For instance, they apply to Swiss nationals and nationals of Norway, Iceland and Liechtenstein (though note that free movement is in effect asymmetrical as far as Liechtenstein is concerned – see question (7) below) which are not EU Member States, by virtue – to simplify – of a number of bilateral agreements between the EU and those countries. 

With respect to temporal exceptions to the free movement of people within the EU, one may for instance refer to the Treaties of accession of 2003, 2005 and 2012, which included provisions allowing for transitional restrictions to be imposed by existing EU Member States on workers from the new EU Member States that joined the EU in 2004, 2007 and 2013 respectively. To give a single example, one may cite the chapter entitled ‘freedom of movement for persons’ of Annex XII to the 2003 Act of Accession regarding Poland. According to this text, the rules governing freedom of movement of workers and freedom to provide services shall apply subject to a number of transitional provisions on the basis of which the then EU-15 could adopt national measures in order to regulate ‘access to their labour markets by Polish nationals’ or adopt measures derogating from the freedom to provide services as far as companies established in Poland are concerned.

By contrast to most EU Member States, the UK decided not to derogate from the free movement of workers during the seven-year period with respect to nationals of the countries that joined the EU in 2004. In other words, the UK along with Ireland and Sweden sovereignly decided to open their labour markets directly from 1 May 2004 with respect to workers from countries such as Poland. The UK did however impose transitional provisions departing from the principle of equal treatment (see Question (3) below).

The UK also subsequently decided to derogate from free movement with respect to Bulgaria and Romania when these two countries joined the EU in 2007. This meant that workers from the two countries were not allowed, as a matter of principle, to work freely in the UK before 1 January 2013, that is, seven years after Bulgaria and Romania had joined the EU. To oversimplify, Romanian and Bulgarian nationals wishing to work in the UK had instead to secure the permission of the Home Office for doing so. The same has applied to Croatian workers since Croatia joined the EU in 2013.

(3) Has EU Law led to an uncontrolled migration regime within the EU?

The free movement system means that EU nationals and their family members who fulfil the conditions within EU law can move and reside freely within the EU, which means that Member States cannot impose quotas, or add additional conditions through an immigration points system – unless some derogation from Article 45 TFEU were agreed to be necessary on pressing grounds of, e.g. public policy.

Fulfilling the conditions set by the EU, in order to exercise free movement rights, typically means being a worker. This is therefore not uncontrolled migration, but the means of control is not immigration law – it is the labour market, which is the key to a right to reside and to stay in another Member State. This is an important point too often ignored. Moving away from this labour market based regulated form of intra-EU migration control would necessarily mean implementing instead a dirigiste bureaucratic form of migration control. This would not be a cost-neutral policy decision. It would likely be more time consuming and costly than the current market-based regulation system derived from EU law. One well informed expert suggested in this respect that ending the free movement of people in the UK would create a ‘bureaucratic nightmare’.

As noted above, Member States have in recent years been permitted to moderate the effect of accession of new states upon their labour markets by temporarily derogating from the free movement of workers with regard to new acceding states. While, as previously mentioned, the UK chose not to derogate from free movement for the A8 enlargement in 2004, it imposed a ‘worker registration scheme’ according to which A8 workers were not entitled to any out of work benefits until they had completed 12 months of registered work, and if the registration was not completed correctly, all subsequent work, until the lapse of the transition measures, was to considered unlawful, not conferring a right to reside or counting towards permanent residence. The transition measures ended in 2011.

The UK’s derogation from the free movement provisions in 2007 for the A2 States, Bulgaria and Romania, involved adopting a worker authorisation scheme, which essentially required Bulgarian and Romanian nationals to apply for authorisation to work on the basis of falling into an authorised category of work, ie specific sectors.  These transition measures ended on the 1 January 2014. The UK also derogated from the free movement provisions on the accession of Croatia in 2013, and now requires Croatian nationals to obtain authorisation to work, and limits such authorisation to skilled work.

There was some implication in the lead up to the UK referendum that membership of the EU increased the ‘risk’ of unauthorised immigration and/or asylum seeking from third countries. But EU free movement law does not affect Member States’ (non-asylum) immigration regimes applied to non-EU nationals who are not family members of EU nationals. The Common European Asylum System provides a means for determining the state responsible for processing asylum claims, and under the problematic Dublin system this usually means that the country of first entry is responsible – putting most pressure on countries around the periphery of the EU, not the UK. A proposal for a reformed system for asylum burden sharing is in preparation, but the UK has secured an opt-out.  

(4) Does EU Law prevent Member States from dealing with welfare tourism?

The short answer is a clear no. The CJEU has found that Member States are entitled to reserve the right to equal treatment as regards welfare benefits to those with an EU law-based right to reside.

To establish such a right, EU nationals must show that they fit one of the given categories in Directive 2004/38 – i.e. that they are workers, family members of workers self-sufficient, or students (who must declare self-sufficiency). EU law does not provide a right to reside for persons who move solely to claim benefits, and creates only limited rights for jobseekers, who are not entitled to claim social assistance.

There is no entitlement for those who move to seek work to social assistance for the first three months of residence; instead those who have been working elsewhere and who are entitled to a contributory job seeking benefit in their home State are entitled to bring it with them when they arrive in a host State, if they meet the conditions for ‘exporting’ their benefit.

As far as workers are concerned, EU law requires EU national workers to be treated equally with own state nationals for the purposes of social and tax advantages. In some cases this means that social security (but not social assistance) benefits can be exported to another Member State, so long as the EU national is a worker in the paying State. EU nationals who do not fall into these categories do not have a right to reside under EU law and so do not have equal access to welfare benefits. 

Member States thus have some considerable freedom to limit benefit entitlement to those considered to be contributors, and so to avoid awarding benefits to those perceived to be benefit tourists. It is therefore misleading to suggest, as Theresa May did in August 2015, that EU law would guarantee a freedom to claim benefits.

However, in any discussion of the need to ‘deal’ with welfare tourism, we cannot ignore the absence of evidence that the problem exists. If we look to the take empirical evidence on the costs/benefits of EU immigration, e.g. the cost/benefit study by UCL, this suggests that EU nationals are net contributors, and ONS figures show that in the UK, EU nationals are less likely than UK nationals to be unemployed. The Department for Work and Pensions responded to a EU Commission query in 2013 saying that they had no evidence of benefit tourism.  Oxford University’s Migration Observatory concluded that the more recent the migrant’s arrival, the more likely the positive contribution. One may finally mention a report by the Centre for Economic Performance (CEP) at the London School of Economics, published on 11 May 2016, in which its authors argue that ‘the empirical evidence shows that EU immigration has not had significantly negative effects on average employment, wages, inequality or public services at the local level for the UK-born … At the national level, falls in EU immigration are likely to lead to lower living standards for the UK-born. This is partly because immigrants help to reduce the deficit: they are more likely to work and pay tax and less likely to use public services as they are younger and better educated than the UK-born. It is also partly due to the positive effects of EU immigrants on productivity.’

(5) Does EU Law prevent Member States to prevent abuse and fraud such as marriages of convenience?

EU free movement law is regularly presented as preventing national authorities from ‘controlling’ EU citizens seeking to move and reside in the UK. One must however emphasise that EU law cannot be relied upon in case of abuse. In other words, EU law explicitly entitles Member States to ‘adopt the necessary measures to refuse, terminate or withdraw any right conferred by [EU free movement law] in the case of abuse of rights or fraud’ and gives the example of marriages of convenience (see Article 35 of Directive 2004/38).

To prevent any abusive use of this ‘abuse clause’, whereby member states might unduly strip people of their rights, EU law also unsurprisingly provides that any measure adopted by a national authority on this basis must however be proportionate and subject to the usual procedural safeguards such as access to judicial and administrative redress procedures in the host Member State.

It would be wrong therefore to claim that EU law prevents Member States from tackling abusive reliance on EU free movement rights, which has been defined as any ‘artificial conduct entered into solely with the purpose of obtaining the right of free movement and residence under [EU] law which, albeit formally observing of the conditions laid down by [EU] rules, does not comply with the purpose of those rules.’ Fraud, that is, any deliberate deception or contrivance made to obtain the EU right of free movement and residence may similarly be sanctioned by the relevant host Member State.

In practice, it is for each Member State to decide how best to tackle fraud and abuse of EU free movement rights. As noted above, EU law does not prevent Member States from investigating individual cases where there is a well-founded suspicion of abuse and adopt necessary sanctions in cases of proved abuse. It is not unusual for national authorities to choose not to go to the expense of doing so; a recent analysis on the Free Movement blog noted that ‘the latest figures suggest there are very few investigations and the Home Office is unwilling to release information on the outcome of the investigations.’ However, this lack of action is sometimes attributed to the legal constraints of EU free movement law (see e.g. the letter sent by David Cameron to Donald Tusk on 10 November 2015 citing inter alia ‘sham marriage’ to justify a rewriting of EU free movement rules). These legal constraints however merely call for a case-by-case assessment of any possible abuse of EU free movement rights and for any individual investigation to be carried out in accordance with fundamental rights. In other words, EU law only requires Member States to comply with the rule of law in this area. 

(6) Does EU Law prevent Member States from removing criminals from their territories?

Some British newspapers regularly seek to paint the EU as preventing the UK from denying entry, refusing residence or deporting citizens from other EU Member States. This is plainly false. The EU Treaties explicitly provide that national authorities can limit the exercise of EU free movement rights on grounds of public policy, public security or public health. The main piece of EU legislation dealing with the rights of EU citizens and their family members to move and reside freely within the EU contains a whole chapter on ‘restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health’ (see Chapter VI of Directive 2004/38).

In other words, and to cite the European Council, host Member States may ‘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.’ (Decision of the Heads of State or Government, meeting within the European Council, concerning a new settlement for the UK within the EU – N.B. This statement merely summarises the current situation notwithstanding that it appears in the now defunct ‘new settlement’ following the outcome of the UK’s Brexit referendum)

Compliance with the rule of law and respect for human rights however mean that EU Member States must comply with a number of substantive and procedural safeguards provided by EU law. When it comes for instance to public policy or public security, national measures justified on these grounds must be proportionate and based exclusively on the personal conduct of the individual concerned, which must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. EU law also provides for a number of procedural safeguards. For instance, any decision to deny entry or expel an EU citizen must be notified in writing and include precise and full information of the grounds on which the decision is based. In the absence of such safeguards, nothing would prevent national authorities from behaving arbitrarily and target certain individuals or groups for political or economic reasons.

While one may legitimately defend the view that the substantive and procedural safeguards provided by EU law are too protective of EU citizens and their family members, critics in most cases fail to make clear the extent to which the current safeguards should be lowered.

To argue however that the EU Court of Justice has prevented the UK from deporting 50 criminals from other EU Member States, as was argued by Vote Leave during the Brexit campaign, is simply false. The record on this issue has been set straight by Professor Steve Peers in this blog post.

(7) Does EU Law prevent Member States from imposing a ‘brake’ on EU immigration?

The short answer is yes as EU law currently stands. This certainly does not mean that EU Law provides for any ‘absolute’ right to move and reside freely within the territory of EU Member States. As described above in our answer to Question 1, EU free movement rights can only be exercised in accordance with the conditions and limitations laid down in the Treaties and the legal instruments adopted thereunder. And while the EU Treaties provide for general derogations as regards the principle of non-discrimination on grounds of nationality with respect to employment in the public service or activities connected with the exercise of official authority, any permanent quota or reliance on a ‘brake system’ regarding intra-EU migration would not be compatible with EU law. Any general ban on EU workers being treated equally with national workers as regards employment, remuneration and other conditions of work and employment would similarly breach EU Treaties.

The compatibility of a provisional, temporary ‘emergency brake’ on equal treatment with EU Treaties was however assumed by the European Council when it agreed last February to push for the adoption of a new ‘alert and safeguard mechanism’ in order to assuage the concerns of the UK government then led by David Cameron (this mechanism formed part of the ‘new settlement for the UK within the EU’ whose entry into force was however dependent on a decision by the UK to stay in the EU). This proposal was not for a brake on immigration, but on EU national workers’ access to in-work benefits.

This mechanism was supposed to work as follows:

(i)                 Any Member State facing an inflow of workers from other Member States of ‘an exceptional magnitude over an extended period of time’ could avail of the new alert and safeguard mechanism;
(ii)               In order to be authorised by the Council to limit the access of newly arriving EU workers to non-contributory in-work benefits for a total period of up to four years, the Member State was expected to demonstrate the existence of ‘an exceptional situation’ affecting ‘essential aspects of its social security system’ or leading ‘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’.
(iii)             Assuming that such a demonstration had been offered, the Council could authorise the Member State concerned to restrict access to non-contributory in-work benefits to the extent necessary.
(iv)             Finally, any authorisation would have a limited duration and the 4-year restriction on access to non-contributory in-work benefits could only apply to EU workers newly arriving during a maximum period of 7 years.

Contrasting legal views have been expressed regarding the compatibility of this new safeguard mechanism with the EU Treaties. In our opinion, this mechanism would have been vulnerable to legal action as its compatibility with EU Treaties is arguable in the absence of a Treaty amendment.

Notwithstanding this legal issue, we have always found it difficult to understand how the UK could rationally avail itself of such mechanism considering that it then enjoyed the highest rate of employment in UK history. Furthermore, evidence of any negative impact of EU work immigration to the UK on vulnerable workers and the sustainability of the UK welfare system was lacking (see this Financial Times article published on 22 February 2016). Furthermore, it has since emerged that the UK government did not in fact possess any hard evidence which would show the negative impact of EU migration to the UK and could justify the activity of the agreed ‘emergency break’ (see this article by the former deputy director of the policy unit’s in David Cameron’s government: ‘To be honest, we failed to find any evidence of communities under pressure that would satisfy the European Commission. At one point we even asked the help of Andrew Green at MigrationWatch, an organization that has been critical of migration. But all he could provide was an article in the Daily Telegraph about a hospital maternity ward in Corby. There was no hard evidence.’)

This EU safeguard mechanism is, in any event, no longer on the table. The UK could however seek to join the EFTA and remain part of the EEA post Brexit, which would offer the advantage of maximum access to the EU’s internal market with the additional option of availing of the special safeguard regarding free movement of people laid down in Article 112 of the EEA agreement:

1. If serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist are arising, a Contracting Party may unilaterally take appropriate measures under the conditions and procedures laid down in Article 113.
2. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Agreement.
3. The safeguard measures shall apply with regard to all Contracting Parties.

Assuming that the UK aims and is able to remain part of the EEA after its eventual exit from the EU, triggering this provision with the view of limiting EEA labour immigration to the UK would not however be cost-free. Indeed, and to the best of our knowledge, none of the contracting parties to the EEA has ever done so with respect to labour immigration if only because another provision of the same agreement entitles parties negatively affected by safeguard measures to take ‘proportionate rebalancing measures’ (the special regime granted to Liechtenstein with regard to nationals of EU Member States and EFTA States, which will be briefly mentioned below, is not directly based on Article 112 EEA).

In other words, should the UK as an EEA member trigger this provision in order to impose quantitative limitations or restrictive rules regarding entry, residence and employment of EEA nationals in the UK, it could then be subject to what would be essentially retaliatory measures focusing for instance on UK banks’ passporting rights (i.e. rights derived from EU law which enable banks based in the UK to offer financial services to the rest of the EEA without having to follow the regulations of the countries where they are offered). Furthermore, the UK would have to accept that any dispute in this context may be referred to an arbitration panel (see Protocol 33 on arbitration procedures of the EEA Agreement).

In addition to this EEA general safeguard mechanism, the EU and EFTA countries were able to agree a rather unique arrangement regarding Liechtenstein with respect to free movement of people, which was initially supposed to be provisional (see Protocol 15 on transitional periods on the free movement of persons) but ended up becoming de facto permanent (for more details see this 2015 Communication from the European Commission). In a nutshell, due to its specific nature as a microstate with a population of 36,925 with an already unusually high percentage of non-national residents and employees, Liechtenstein was permitted to introduce quantitative limitations (aka a quota system) to control the number of EEA citizens wishing to take up residence via a system limiting the number of residence and short-term permits a year. In 2015, the Commission concluded that there is ‘no need to make any changes to the current rules’ until another review of this specific arrangement takes place in 2019.

It has been suggested that a Liechtenstein-inspired solution may be the way forward as far as the UK is concerned (see the proposal by Vicky Ford, a Conservative MEP as reported in The Guardian). This is highly doubtful if only because the quota system agreed for Liechtenstein was explicitly justified on the basis of this country’s ‘specific geographic situation’ and a total number of employees which is almost equal to the number of residents, 52 % of whom commute from neighbouring countries, a situation in no way comparable to the UK’s (see Question 10 below for an overview of other possible options for the UK to consider).

(8) Does EU Law only guarantee a right of permanent residence after five years?

There has been a fair amount of confusion on the EU right of permanent residence in the UK. To put it briefly, it is regularly argued that such a right would only arise after five years of residence but this is not entirely accurate.

This point is not easy to explain briefly. To begin with, it is correct to state that EU Law provides for a right of permanent residence for EU citizens and their family members after five years of continuous legal residence in the host EU country. This right directly derives from EU law and is explicitly mentioned in Directive 2004/38.

What is usually misunderstood however is that EU citizens and their family members (irrespective of nationality) can acquire a right of permanent residence, in the sense of continued and uncontested – but conditional - residence as soon as they move and reside in a different Member State. In other words, provided that an EU citizen maintains his/her status as worker or self-employed person, or that he/she have sufficient resources for himself/herself (and eventual family members) as well as a comprehensive sickness insurance cover, EU law guarantees a right of continued residence in the host Member State.

The added value of the new right of permanent residence after five years of residence laid down in Directive 2004/38 lies in the fact that once it is obtained, this right is no longer subject to the conditions previously mentioned.

To summarise, EU law guarantees a conditional right of permanent residence before five years and a nearly unconditional one after five years (it may be lost through continuous absence from the state for over 2 years; and there are powers to remove criminals from the country as discussed in the answer to question (6) above).

To claim that only those having resided in the UK for more than five years are entitled to claim a right of permanent residence misrepresents EU law as it stands. This is an important point considering that it is regularly reported in the press that the UK government may only seek to allow EU citizens with a right of permanent residence to stay in the UK by the time the UK leaves the EU, while those with allegedly no permanent residence right by then would be offered an ‘amnesty’ (see this article from The Telegraph published on 7 October 2016).

This reflects a misunderstanding of EU law. As noted above, and just to give a single example, any EU worker residing in the EU is entitled to reside permanently in the UK from day 1 of his/her residence in the UK as long as he/she maintains his/her status of EU worker. It might be clearer to propose that rights attach to ‘Article 16’ (of the EU citizens’ Directive) or ‘unconditional’ permanent residence, rather than just ‘permanent residence’.

In any case, if the yardstick is those with an unconditional right to reside thanks to the Directive 2004/38 concept of permanent residence, then the threshold is not always five years. There are exceptions for instance for those who retire in the host member state (the threshold is 3 years of residence, if they have been working in the host state for at least the past 12 months), or if they have to stop working as a result of permanently incapacitating illness (the threshold is two years), or if they become incapacitated as a result of an accident at work or occupational disease (and are entitled to a relevant benefit from the host state), in which case there is no duration of residence requirement. It is therefore not only EU nationals who have resided for five years who have a ‘clear cut’ right to reside.

One should also note in passing that to speak of amnesty in this context is to deeply misunderstand the legal meaning of this concept, which either refers to a general official pardon for people, convicted of political or criminal offences or an undertaking by public authorities to take no action against specified offences during a fixed period. To speak of ‘amnesty’ to address the situation of EU nationals who have exercised their free movement rights to move to the UK in full compliance with the conditions laid down in EU Law, creates an unfortunate and misleading depiction of lawfully resident and working EU nationals.

(9) Would EU Law or International Law protect ‘acquired’ free movement rights following a British exit from the EU?

First of all, it is worth noting that we are talking about protection of rights in the event of a ‘repeal’ of those rights – i.e., if legislation in the UK is amended to remove free movement rights following the formal withdrawal of the UK from the EU. It is worth pointing out in this respect that counsel for the government in the litigation on whether triggering Article 50 requires parliamentary consent, has argued that the rights of EU nationals do not simply fall away on exiting the EU. Those rights are part of domestic law, implementing EU law. It is not impossible that the UK could leave the EU and leave all the free movement rights in tact. However, we face a question of what happens if it does not.

Prior to the referendum, there have been repeated suggestions that British citizens in the EU and EU nationals in the UK would be able to rely upon the Vienna Convention’s protection of ‘acquired rights’ to enable them to stay and to protect their status there.

Legally speaking, this is problematic and highly unlikely. The Convention in question – the Vienna Convention on the law of the Treaties – contains a provision, Article 70(b), which states that the termination of a treaty:

“Does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.”

However, this provision refers to rights of ‘the parties’. The parties to the EU Treaties are Member States, not individuals. It was therefore wrong for Gisela Stuart or Boris Johnson to imply that Article 70 of the Vienna Convention directly addresses individual free movement rights acquired Pre-Brexit. For instance, the International Law Commission had for instance made clear that this provision is simply not concerned with the acquired or vested rights of individuals. This is why Jean-Claude Piris (former General Director of the Legal Service of the Council of the EU) described the Vienna Convention claim as a ‘new legal theory’ with no ‘legal support in the Treaties’, which must be disregarded as it ‘would lead to absurd consequences’.

To summarise, while international law does recognise the notion of ‘acquired rights’, there is, as observed by Professor Vaughan Lowe QC a ‘general agreement that the category of ‘acquired rights’ does not extend beyond property rights and certain contractual rights’, which means that the EU ‘rights to live, work, receive medical care and retire in an EU Member State other than one’s own (or for companies, the right of establishment) would not be included within that category.’

In any case, claiming a continued right of residence is a claim for a present and future right, not an acquired one. It would be strange were it possible to claim continued reliance upon EU Treaties which have ceased to apply, given that Article 70 (a) of the Convention states that the termination of the Treaty “Releases the parties from any obligation further to perform the treaty”. The sorts of past State rights that might be protected by the Convention could be that the EU could not demand that the UK pay back Structural Funds paid to correspond with past periods during which the UK was a member of the EU, where those funds were paid in good legal order.

And it is worth pointing out that the Convention is a UN instrument, and there is little ground for supposing that it would be readily actionable to claimants facing negative administrative decisions, since it does not create direct rights. Nor is it able to trounce both EU and national laws in other Member States. If it were able to do so, that would raise significant questions of supremacy, sovereignty and transparency. 

During the course of the campaigns, Matthew Elliot of Vote Leave also suggested that the EU Charter of Fundamental Rights would protect British nationals’ rights to stay in the EU. However, (a) the Charter is silent on the matter of rights of ex-EU nationals; (b) it does not create any additional rights not already in existence within EU law; and (c) The Charter is an EU instrument. If the UK exit agreement includes provisions on UK nationals in the EU (and EU nationals in the UK), then those provisions must be interpreted in accordance with the Charter – e.g. in accordance with a right to family life. Outside of the agreement, these individuals may anyway fall within the scope of EU law, e.g. through having married a national of a Member State who has exercised their right to free movement, or being the primary carer of a host State national. In any event, if the UK was no longer bound by the Charter as a non-member, then UK nationals in the EU seeking to rely upon it would have to show that their situation fell within the scope of EU law (such as EU legislation on migration from non-EU countries) for the Charter to apply, and then show that a fundamental right covered by the Charter was engaged.

The key point here is that international law relating to ‘acquired rights’ does not offer any solid basis for a claim to retain EU rights of residence post-Brexit. And this is why the UK government, without mentioning the Vienna Convention, has decided that the criteria which would ‘enable EU citizens to remain in the United Kingdom following exit from the European Union will depend on the outcome of the negotiations and the scope of any reciprocal agreements concerning British citizens who live in other member states.’ (Lord Keen of Elie, 29 June 2016)

While there are no clear legal guarantees for either the residence rights of UK nationals in the EU or of EU nationals in the UK, there are nevertheless strong legal arguments in favour of offering protections to EU nationals in the UK. The ‘bargaining chip’ stance is dehumanising and ethically problematic; it puts the lives of nationals from other EU countries living in the UK ‘on hold’ for an indefinite period of time (with very practical consequences such as increased difficulties to get loans or mortgages, not to mention the anxiety it has created). This is why, for instance, Michael Howard, the former Conservative leader, called on Mrs May to ‘lead by example’ end the ‘dreadful uncertainty’ facing EU migrants living in the UK.

That being said, the suggestion implicitly made by David Davis that EU nationals could be deported retrospectively (i.e. even if they arrived before the UK leaves the EU) may, in circumstances where their right to family life was at stake, be open to legal challenge on the basis of the UK’s Human Rights Act. See e.g. Matthew White’s post on ‘When can EU citizens be expelled from the UK after Brexit?’ available here and Camino Mortera-Martinez & John Springford’s CER insight piece ‘Britain will struggle to make EU migrants ‘go home’’ available here.  Equally, UK citizens in the remaining EU could invoke the right to family and private life in the European Convention on Human Rights, as well as rights in national constitutions, even if they were not covered by EU immigration law or transitional arrangements. It should be noted however that winning an Article 8 ECHR claim in the immigration courts it is not straightforward.

(10) What are the main options available to the UK government?

It is not yet entirely clear whether the UK government wishes to revise or completely reject the application of current EU rules in the UK. A complete rejection would not be compatible with an extensive access to the EU’s single market à la norvégienne (see below for more details on this model).

There is however a large spectrum of different free movement options that are, in theory, possible for the UK to consider but the default (political) principle may be summarised as follows: The more extensive the UK restrictions on the free movement rights of EU citizens and family members, the less extensive the UK’s access to the EU’s single market is likely to be. This was the point made by the German Chancellor, Angela Merkel, when she stated that full access to the European single market depended on whether on the acceptance of the EU’s four freedoms, including the freedom of movement of people: “If Britain says no, it can’t get full access to the European single market”.

Assuming the UK wishes to retain as much access to the European single market as possible, it would then have to seek membership of the EEA – the so-called Norway model. This involves not being an EU member, but applying much of EU law, including provisions on free movement, equal treatment on the ground of nationality, and social security coordination. Some have suggested, slightly further along the spectrum, a Norway-minus model, that adapts the EEA model, to allow for more restricted movement of workers, perhaps in return for ‘a bit less single market’ access. Alternatively, the UK could instead join the EEA and seek to trigger its safeguard mechanism as noted above in our answer to question 7.

The Swiss bilateral agreement model is another option that involves free movement but permits greater restrictions on equal treatment with regard to welfare benefits. The model is complicated, relying on a ‘patchwork’ of agreements that need regular updating. The relationship is not entirely stable – calls to renegotiate the free movement provisions have been rejected by the EU; a Swiss quota initiative has soured the EU-Swiss relationship, in the light of which the Swiss government appears to be considering a second referendum which could ask voters to decide between the unilateral imposition of curbs on EU migrants and maintenance of Switzerland’s current access to the EU’s single market (another alternative plan is to sidestep ‘quota in favour of giving current Swiss residents labor-market precedence’ but this idea is unlikely to be agreed by the EU).

The Turkish system is much closer to the other end of the spectrum, since there is no free movement as such, but there are some special arrangements, such as the accrual of increasingly ‘equal’ employment rights. Turkish workers legally employed in the EU are entitled to the same working conditions as EU nationals, and also have a sliding scale of rights: after one year of legal employment they are entitled to have their work permit renewed if a job is available; after three years of legal employment they are entitled to switch employers and respond to other job offers within the same occupation; after four years of legal employment they have free access to any paid employment in that EU country. Borrowing from this approach could involve heavy restrictions – such as requirements for residence and work permits – but allowing EU workers, once they had been accepted into the UK, to accrue residence, employment and social rights during their time here.

Or it is possible to envisage ad hoc models at different points along the spectrum. One such is a Continental Partnership, involving a reciprocal quota system – the UK imposing a quota system on EU entrants, and the EU imposing a quota system on UK entrants. This is problematic, since it is not clear how this could be made workable, partly in light of the substantial cross border populations already in situ, and the migration flows that stem therefrom, and also because of the fluidity with which people would likely shift status (assuming the system did not apply to visitors). The idea of a quota imposed on the EU as a whole would be tricky to administrate fairly – how could/should a system deal with a quota being ‘used up’ by one or more states disproportionately? And should UK nationals be denied the possibility to move to Poland because the EU quota has already been met by UK nationals in Germany?  The EU Treaties also state that quotas on non-EU citizens coming to work are decided by Member States individually (Article 79 TFEU).

A variation on this idea is ‘preferential movement’ – allowing free movement for immigrants above a set salary or skill level, and setting quotas below it – primarily because that accords with ‘UK public attitudes to immigration’, rather than with economic evidence. It would likely be administratively and legally complex to set the categories, then maintain two parallel immigration systems for the same nationality cohort and monitor continued status for each individual within the allocated category. Furthermore, it would seem irresponsible for public policy to be driven by popular ‘feelings’ about the impact of immigration rather than by evidence of the impact of immigration, especially in a context where the public may have been misled by media misrepresentation (see e.g. this article in The Economist on the EU myths propagated by the British media).

Another idea floated recently was that of a ‘job-first’ model. This is also not without problems. It is not clear that it would reduce immigration (which is the apparent purpose), but would simply place the recruitment process one step back. This could give more power to gang-masters, who already have the machinery for cross-border recruitment in place, and are often linked to employers who provide tied accommodation, and transport their workers to and from the place of work. This could lead to EU nationals being imported in groups, and living quite controlled lives, segregated from much of the UK population.

The other scheme apparently debated by the UK cabinet, which one may label ‘targeted work permit system’, is similarly problematical. As reported by the Financial Times, this system would ‘most likely allocate a set number of visas by sector’ for highly skilled workers in receipt of a job offer. By contrast, unskilled workers could only gain entry into the UK on the basis of a temporary workers scheme, which would grant EU unskilled workers access to the UK for a fixed period of time with no accrued residency rights. Such a ‘targeted work permit system’ however assumes that one can clearly define what is an ‘unskilled worker’ as opposed to an ‘highly skilled’ one. It would be incompatible with access to the European single market in a similar way to Norway or Switzerland and would be incredibly administratively complex.

Others have suggested the devolution of immigration policy as far as EU nationals are concerned. This would mean for instance giving Scotland, Northern Ireland but also London and Gibraltar the right to continue to apply current free movement rules to EU nationals and family members (EEA membership for Scotland would make this a compulsory feature as rightly noted in this Financial Times article by Martin Sandbu) or alternatively, to apply a different but more liberal immigration system on a regional basis (see e.g. the ‘regional visa system’ proposal made by the City of London which is available here). However, it is difficult to see how such systems could be made tenable, without introducing intra-national migration controls.

In our opinion, the UK government should not seek to fundamentally undermine the current EU’s labour market-based system of intra-EU migration control, where evidence suggests that the system works well for the UK – a system which both the Japanese government and the US Chamber of Commerce have described as key for attracting and maintaining foreign investment in the UK. Instead of devising cumbersome and costly alternative schemes, it may be more appropriate to instead aim to revisit the question of restrictions already permitted within EU law, while also questioning whether the ‘mischief’ that these proposals are intended to address actually exists.

Barnard & Peers: chapter 13, chapter 27

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