Thursday 28 June 2018

Recognition of Professional Qualifications post-Brexit

Dáire McCormack-George*

*The author is a Ph.D. Candidate in Law and Scholar of Trinity College Dublin, the University of Dublin. This blog post is based on his presentation at the third Radboud University Economic Law Conference, ‘Upgrading Trade and Services in EU and International Economic Law’, 15 June 2018. The author would like to thank the conference participants and attendees for their intriguing and thought-provoking questions. All errors remain the author’s.


The present terms of the draft withdrawal agreement between the UK and the EU substantially envisage the provisional application of Directive 2005/36/EC (‘the Recognition Directive’) until the end of the transition period. They also guarantee the continued recognition of qualifications recognised before that date. But what might any post-Brexit agreement on the recognition of professional qualifications between the UK and the EU look like in the light of the EU’s current agreements with its regional and international partners? This post briefly canvases the options and suggests that a CETA or ‘CETA plus’ approach would be a good starting point for any future agreement.

Four Models of Qualification Recognition

The ideal approach in international economic law and EU external relations law is for contracting states to agree to the mutual recognition of professional qualifications obtained in either state. This approach, like the equivalent Single Market system incorporated in the Recognition Directive, provides for automatic and/or certain lesser forms of recognition, thus facilitating, to differing degrees, the free movement of persons and services. In the context of the EU’s international agreements, the EEA Agreement and EC-Swiss Agreement provide the best examples of such an approach insofar as those agreements substantially incorporate and apply the entirety of the EU qualification recognition acquis to nationals of those respective states. Such a position, of course, reflects the highest degree of mutual economic integration possible.

A second approach is evident in CETA. According to the terms thereof, the EU and Canada are obliged to ‘encourage’ professional organisations and representative bodies in their jurisdiction to draw up ‘Mutual Recognition Agreements’ or ‘MRAs’. CETA provides a rough template of what such MRAs should address, such as, amongst other things, the verification of equivalency; evaluation of substantial differences; compensatory measures; and the identification of the conditions for recognition. While the MRA template is non-binding, it nonetheless provides a helpful starting point for professional organisations in their negotiations. CETA therefore leaves it to the responsible authorities of each state to encourage professional organisations to draw up a MRA and, consequently, the domestic, regional and international market for mobility in each such profession. At present, no MRAs have been adopted, although the Architects’ Council of Europe has expressed a desire to develop a MRA with its equivalent Canadian body in the coming years.

The third approach is very similar to CETA, but one step down—‘CETA minus’. This approach requires the contracting parties to encourage professional organisations in the respective states to develop MRAs but, unlike CETA, no such MRA template is set out in the terms of any such agreement. Terms of this kind are found in some of the EU’s stabilisation and association agreements (eg, Bosnia and Herzegovina Stabilisation and Association Agreement, EC-Kosovo Stabilisation and Association Agreement, EC-Montenegro Stabilisation and Association Agreement, EU-Ukraine Association Agreement), as well as its international trade and economic partnership agreements (eg, EU-Andean Trade Agreement, Economic Partnership Agreement with CARIFORUM states, EU-Korea Free Trade Agreement, EC-Singapore Agreement, EC-South Africa Trade, Development and Cooperation Agreement). The fact that no MRA template is included in these agreements is indicative of the fact that such MRAs are unlikely to be negotiated whereas, under CETA, such agreements are readily envisaged and, in some cases, negotiation is already under way.

The final approach is the least obvious but most interesting. This approach is found not in any term concerning the mutual recognition of professional qualifications but in equal treatment guarantees in respect of workers or service providers. Given the need to treat third-country workers or service providers equally in accordance with such terms, EU member states are, in principle, thereby obliged to recognise the qualifications of third-country nationals in the same manner in which those qualifications of its own nationals or nationals of another EU member state are recognised. Whether the recognition of professional qualifications falls under such equal treatment guarantees has yet to be addressed specifically by the Court, but in principle same could fall within the scope thereof. Equal treatment clauses of this kind are found in the EC-Turkey Agreement, the Cotonou Agreement, EU-Ukraine Association Agreement, EC-Russia Partnership and Cooperation Agreement, as well as in several other stabilisation, association and partnership agreements with countries in the Neighbourhood and Mediterranean. This approach is, however, the least stable for two reasons. First, the scope of application of equal treatment clauses in such agreements is generally unclear. Second, and relatedly, the distinction between workers and service providers tend to affect their scope.

Two cases of recent vintage before the CJEU illustrate this point most clearly. In Case C-265/03 Simutenkov, a Russian professional football player was required to hold a ‘non-Community’ licence to play football, a requirement which the Court of Justice concluded constituted unlawful discrimination under the terms of the EC-Russia Partnership and Cooperation Agreement. By contrast, in Case C-101/10 Petkov the Court held that equal treatment in working conditions does not include access to a profession itself. Specifically, the Court held that as the equal treatment clause at issue was contained in the workers title of the EC-Bulgaria Agreement but not in the title on service provision, the scope of the equal treatment clause therein did not apply to certain regulated professions. Problematic here is the unclear distinction between workers and service providers, a distinction which is, increasingly, being challenged by researchers in the area of service and labour migration. And further, the approach which the CJEU takes depends very much on the specific wording and location of the equal treatment guarantee in the relevant agreement. The context, thus, is vital.

Post-Brexit Realities

To recap, there are essentially four approaches to qualification recognition presently evident in the EU’s external relations: full, automatic recognition; no recognition by default but recognition likely in future; no recognition by default and recognition in future unlikely; and uncertain recognition. Of these, CETA or a ‘CETA plus’ approach seems to me to be most appropriate for any post-Brexit agreement. Why so? My reasons (three) are as follows. First, CETA suggests that the contracting parties are ready and willing to recognise qualifications in the near future. It does not require total or partial qualification recognition across all sectors but is rather driven by market demand. At present, it is of course difficult to assess precisely what the labour and service market demands will look like in the EU and UK post-Brexit. But it is certainly plausible that at least some professions will want and need to mutually recognise qualifications so as to (i) maintain the highest of professional standards and (ii) satisfy domestic labour and service market demand. As such, the provision of a template for MRAs in CETA is most helpful and would be a good starting point for any post-Brexit agreement.

Second, insofar as international agreements reflect certain socio-economic and cultural preferences of the parties, CETA would be a good model for any post-Brexit EU-UK agreement because the UK and Canada are relatively similar in those dimensions. For example, services, professional and otherwise, increasingly constitute both Canada and the UK’s export markets and their domestic labour markets. We therefore see similar domestic demand in both countries for low-skilled and high-skilled labour manifested in these countries’ well-documented labour migration regimes. This is surely linked to the broadly liberal economic policies that both the UK and Canada have adopted over the course of their recent (and distant) histories. And in social and cultural terms, the UK and Canada share a linked culture and history given the imperial relationship of dominium between the former and the latter.

A third and final reason is pragmatic. Given that CETA has already been negotiated, and given the length of time it took to negotiate that agreement, it would be quite sensible and convenient for the UK and the EU to rely on their existing work. It is for these reasons, therefore, that the CETA model is, out of those approaches previously negotiated between the EU and its international partners, a most appropriate model for any post-Brexit deal, insofar as it relates to the mutual recognition of professional qualifications.

Barnard & Peers: chapter 27, chapter 14

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Wednesday 27 June 2018

Regulators without Frontiers? European Regulators Group for Audiovisual Media Services (ERGA) and the Audiovisual and Media Services Directive 2.0

Professor Lorna Woods, University of Essex

The European Commission established ERGA, by a Decision in 2014, to facilitate the implementation of the Audiovisual Media Services Directive (AVMSD, or Directive 2010/13/EU) and thus further the internal market.  This seems to have been a development of the High Level Group of Regulatory Authorities, which was organised by the Commission (its inaugural meeting was 27 March 2003) and brought together the Member State authorities responsible for the enforcement in this field for twice yearly meetings. The aim was to reinforce cooperation between national regulatory authorities with the aim of ensuring the consistent application of the AVMSD.  It may be seen as forming part of a trend at EU level to create networks – even those involving Member State actors – to support or even intensify harmonisation. As such they may be part of a shift away from decentralised enforcement to a more centralised approach.  Such a development is by no means certain, but it suggests that discussions about the role and powers of any such body has a more than technical significance.

The Decision establishing ERGA described its tasks as:

(a) to advise and assist the Commission, in its work to ensure a consistent implementation in all Member States of the regulatory framework for audiovisual media services;

(b) to assist and advise the Commission, as to any matter related to audiovisual media services within the Commission's competence. If justified in order to advise the Commission on certain issues, the group may consult market participants, consumers and end-users in order to collect the necessary information;

(c) to provide for an exchange of experience and good practice as to the application of regulatory framework for audiovisual media services;

(d) to cooperate and provide its members with the information necessary for the application of the Directive 2010/13/EU, as provided for in Article 30 of Directive 2010/13/EU, in particular as regards Articles 2, 3 and 4 thereof (the basic rules on cross-border broadcasting).

ERGA’s establishment was thus not foreseen by the 2007 version of the AVMSD, and ERGA operated in addition to the Contact Committee that had been created by Article 29 of the directive.  Implicitly, this suggests that the Contact Committee was not sufficient in the Commission’s view for consistent and effective implementation of the AVMSD across the Member States. A European Parliament resolution from 2004 already ‘[r]egret[ed] that the Contact Committee established under the television without frontiers is mostly composed of representatives of the national government ministries and not by members of independent media regulatory authorities’. 

In the eyes of some, the Contact Committee did not – as a matter of form – allow for the cooperation of the national regulatory authorities, as those regulators did not necessarily participate in the Contact Committee. That situation could adversely affect consistency in pan-EU application of the AVMSD and give rise to concerns about enforcement, especially in the cross-border context and the risks of an unequal playing field (as between the approaches of the various Member States). The introduction of another forum for experts to share experience also raises questions about the difference between ERGA and the Contact Committee (if any) and their respective roles – especially given that there is already a platform for media regulators (EPRA), albeit one that lies outside the EU framework. 

Is the significance of the proposal an attempt to delineate between effective enforcement (which would fall to ERGA) and the development of policy (which is the responsibility of the more political body, the Contact Committee)? This point has indeed been made by the Chair of ERGA. Or is ERGA just ‘more European’ than the Contact Committee by virtue of its members’ independence from national political objectives, for example?  That ERGA is about more than effective enforcement finds some support in the report of EPRA which describes ERGA as holding ‘strategic EU policy-oriented discussions’ and ‘intend[ing] to adopt common positions or declarations on the implementation of the audiovisual EU regulatory framework’.

Moving to the directive, Art. 30A of the revised AVMSD (re-)establishes ERGA, a seemingly uncontroversial point from the Commission’s proposal which was unchanged through the legislative process. The Commission envisaged that ERGA would be composed of national ‘independent regulatory authorities’ in the field of audiovisual media services, thus linking this to the new provisions on the independent regulatory authorities introduced in Article 30 (containing provisions to ensure independence).  By contrast, the Contact Committee is ‘composed or representatives of the competent authorities of the Member States’ and is chaired by a Commission representative.  Apart from an attempt by the European Parliament to install 4 MEPs on the Contact Committee (unsuccessfully), this structure remained unchanged.  So while the Contact Committee may have representatives from the relevant national regulatory authorities, it may not in respect of all Member States.

The difference in membership is significant: the Commission’s proposal sought to ensure that it was the independent regulators, rather than Government ministers or senior civil servants, which participated in ERGA. The Commission here would no longer be controlling the meetings (as chair) but be ‘down-graded’ to participant.  This too is important in terms of ensuring that ERGA itself is independent from the Commission, as well as from Member States and commercial interests.  The wording has been amended slightly through the legislative process to include the reference to national regulatory authorities and/or bodies in the field of audiovisual media services.  This change may be semantic to reflect the actual nature of the relevant institutions, but arguably weakens the link to the independent regulators required by Article 30.  Insofar as this independence requirement might be seen as a fact making these regulators more EU focussed rather than open to national policy initiatives (as has been seen in other sectors, e.g. telecommunications), the change might be an attempt to limit the supranational element of the proposal. This is in contrast to the Contact Committee, which could well have (national) political undercurrents, given that its membership might include politicians and civil servants as well as or instead of technical experts. 

The original Commission proposal more or less tracked the tasks ascribed to ERGA in its 2016 decision with the addition of the task of giving opinions, when so requested, ‘..on the issues envisaged in Articles 2(5b) [new provisions on allocation of jurisdiction], 6a(3) [co-regulatory systems and the development of Union codes of conduct], 9(2) [self/co-regulation in relation to food and drink that are high in salt, sugars or fat (HFSS)], 9(4) [sharing best practice/union codes of conduct in respect of HFSS foods and drink] and on any matter relating to audiovisual media services, in particular on the protection of minors and incitement to hatred’.  This may reflect the power of the Commission, under Article 3(1) of the Decision, to consult ERGA ‘on any matter relating to audiovisual media’ - wording that is reflected in the recitals to the AVMSD (recital 37). With the focus on new forms of governance, it could be said that the Commission envisaged ERGA as having a significant role that maybe went beyond the idea of enforcement alone, though the involvement in jurisdiction and anti-circumvention decisions is in itself important (though note that the database containing the details of which service provider is established where is the responsibility of the Commission rather than – as suggested by the Parliament in its AMD 52, the responsibility of the Commission and ERGA).

These provisions did not remain unchanged. The initial view of the European Parliament’s joint rapporteurs was that ERGA should remain a consultative body without decision-making power and that more competences should be given to the Contact Committee (with a revised constitution to include four MEPs). To this end, the Parliament proposed that the Contact Committee should be provided with relevant information as regards Article 3 [freedom of reception/derogation procedures], 4 [circumvention provisions] and 7 [accessibility provisions] – the first two points of which are now in the directive. 

The Council’s view of ERGA’s role here was also more limited than the Commission’s proposal, though it seems that there were some differences in views between the Member States. Council amendments limited ERGA to giving technical advice – though what ‘technical’ in this context means is rather uncertain – does it relate to matters relating to technology (surely not) or instead advice in the practical implementation of the rules? It seems that general policy advice may lie outside ERGA’s competence, reflecting in broad terms the division of roles between ERGA and the Contact Committee. The Council proposals also resulted in the deletion of ERGA’s role in the reference to self and co-regulation in Article 9.  The Council also pushed back against the Commission’s control of ERGA in that the Commission proposal envisaged that the Commission was to be empowered to adopt ERGA’s rules of procedure.  According the Council’s view, this falls to ERGA itself.  Under the 2016 Decision, ERGA had a limited ability to raise issues. Article 2(2) provided that:

The chairperson of the group may advise the Commission to consult the group on a specific question.

This task does not appear in the list of tasks enumerated in the AVMSD – it is, perhaps, a reflection of the fact that ERGA does not or should not have a policy role.

ERGA seems to be more limited than the Contact Committee. The tasks of the Contact Committee are quite open-ended. It is to ‘facilitate effective implementation’ of the AVMSD – all of it – but in addition its scope is extended to ‘any other matters on which exchanges of views are deemed essential’ (Article 29(2)(a) and recital 32a). There is overlap with the tasks of ERGA in that both are concerned in the exchange of best practice in relation to the derogation provisions in Article 3(5). The AVMSD identifies further specific areas where the Contact Committee is to be consulted. For example, it is the Contact Committee and not ERGA that is to be consulted on the development of Union codes of conduct (the development of which is stated to be ‘in accordance with the principles of subsidiarity and proportionality (Article 4a(2) 3rd para)).  In the context of the development of guidance on the calculation of market share (Article 13(5a)) and listed events (Article 14(2)), the Commission is empowered to consult the Contact Committee not ERGA. While ERGA may be requested to give an opinion, the Contact Committee may provide opinions on its own initiative. Further, in addition to responding to requests from the Commission, the Contact Committee may also respond to Member States’ requests. The Contact Committee’s role extends to ‘examin[ing] any development arising in the sector on which an exchange of views appears useful’ (Article 29(2)(f)).  This gives the Contact Committee an agenda setting function which can also be seen in the fact that the Contact Committee discusses what should be included in the reports that are submitted by the Member States to the Commission on implementation of the AVMSD (see guidance issued by Contact Committee).

In sum, ERGA is confirmed as part of the apparatus for consistent enforcement of the AVMSD.  While it may be the case that there is a distinction between the policy discussions and the coordination of enforcement, it seems that there have been different views within the institutions as to the role of ERGA and these might not go away on the coming into force of the revised AVMSD. While we wait to see how ERGA operates in practice and interacts with the Contact Committee it can be said that, on a sliding scale of pan-EU regulators ranging from EU agencies at the top to informal groupings at the bottom, the ERGA lies near the bottom with its narrowly drawn, technical advisory role.

Photo credit: flickr

Monday 25 June 2018

Fair Movement of People: Emergency Brake (Part 3)

Catherine Barnard and Sarah Fraser Butlin*

*The authors are both at the University of Cambridge and funded by the ESRC’s UK in a Changing Europe programme. An expanded version of some of these arguments can be found in Barnard and Fraser Butlin, ‘Free movement v. Fair Movement: Brexit and Managed Migration (2018) 55 Common Market Law Review 203


In the first two blogs (here and here) in this series we began to outline our notion of ‘fair movement’. In the first blog we argued for a clear linkage between the ability to migrate into the UK and undertaking an economic activity.  In the second blog we argued that current restrictions on the principle of equal treatment should be utilised, particularly residence requirements, before allowing access to social security benefits.  This final blog focuses on the third element of the proposed scheme: the emergency brake provisions. We argue that combining our approach to equal treatment with an emergency brake would achieve a managed but flexible approach to migration.  This approach reflects both the origins of free movement and other existing agreements, including with EEA states. Such an approach based on fair movement may, therefore, be acceptable to the EU in a future trade agreement while at the same time go some way to meeting the concerns of UK voters. As with the previous two blogs, we locate our arguments in the context of the original discussions about the shape of free movement rules to show continuity between what we propose and what the EU has considered in the past.

Origins of Free Movement

Although the question of an emergency brake was a difficult issue during the discussions establishing the Common Market, the need to restrict free movement in certain circumstances was a consistent theme.  Thus, a note by the Inter-Governmental Committee (IGC) in November 1955 recognised the need for certain safeguarding clauses in case of an influx of a workforce that would cause a particular risk to certain industries in a particular country.  This reflected the concerns of several delegations: the French delegation was worried that migration should be limited according to the capacity of the member state to absorb migrant workers; Luxembourg was concerned about its ability to implement free movement of workers, given its social and demographic structure; and Belgium had concerns about the burden created by possible large scale migration.

The Spaak report of 21 April 1956, which provided the foundations for the negotiations establishing the Common Market, supported earlier proposals for the gradual introduction of free movement by way of a 1% increase in migrant worker numbers each year. However, the report also noted the reluctance of workers to move, even within one country and this indicated that some sort of controlled migration might not in fact be necessary.  Ultimately, it seems that this latter view won the day: the final version of Article 48 EEC on free movement of workers (now Article 45 TFEU) included no reference to quotas, nor to a gradual introduction of free movement nor an emergency brake. 

Nevertheless, the history of the provision shows that the possible need for an emergency brake of some sort was a concern for many of the delegations, albeit that so little migration occurred between 1957-2004 that any further discussion of an emergency brake on migration proved unnecessary. The world has since changed. While continued free movement would be what the EU would like, political realities indicate change is needed. So we ask: Is there a way of facilitating free movement while meeting the political need to take back some control of migration? We argue there is and existing agreements provide the way.

Existing agreements

Some people have suggested that an emergency brake of some sort can be read into the express derogations of the Treaty. However, we focus on four other agreements which, we argue provide a more secure template for an emergency brake provision.

Firstly, Article 112 of the European Economic Area (EEA) Treaty contains a broad safeguard clause:

If serious economic, societal or environmental difficulties of a sectoral 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.

Article 112(2) adds that ‘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.’ Article 113 EEA prescribes the procedure for triggering the procedure, involving the notification of Contracting Parties and consultation with the EEA Joint Committee.  When exceptional circumstances requiring immediate action exclude prior examination, protective measures may be applied.  Safeguard measures that are taken must be reviewed every three months with a view to their abolition or to the limitation of their scope of application. A safeguard clause of this kind has been borrowed for the purposes of the Northern Ireland/Ireland Protocol in the draft Withdrawal Agreement.

Secondly, the EEA agreement did contain one specific limitation on free movement of people for the tiny state of Liechtenstein. Before Liechtenstein joined the EEA, the EEA Council recognised that it was vulnerable to excessive migration due to its very small inhabitable area.  Upon joining the EEA, temporary measures were put in place allowing Liechtenstein to impose ‘quantitative limitations’ on immigration until 1 January 1998.  Towards the end of the transitional period, no permanent solution had been found and Liechtenstein unilaterally invoked Article 112 EEA.  On 17 December 1999 it was decided that the ‘specific geographical situation’ of Liechtenstein still justified the maintenance of certain conditions on the right to taking up residence. Text was added to the EEA Agreement, providing that EEA citizens may take up residence in Liechtenstein but were required to have a residence permit if they were remaining for more than 3 months of the year or to take up employment or other permanent economic activity. A permit was not required for those providing cross-border services. A quota for residence permits was applied although no permit is required to be able to work in Liechtenstein, only to reside there. These arrangements are reviewed every five years.

Thirdly, Switzerland has introduced a new provision giving priority for local hires following the Swiss Referendum in February 2014. The Swiss electorate had voted to amend the Swiss Constitution to limit immigration through quotas and restrict the rights of foreign nationals to permanent residence, family reunification and access to social benefits. This was incompatible with the bilateral EU Agreement on Free Movement of Persons within the EU and the EU reacted by suspending Switzerland’s participation in the EU research and student programmes, Horizon 2020 and Erasmus+.

Lengthy negotiations followed and eventually on 16 December 2016 a new law was adopted, coming into force in the summer of 2018, giving priority to Swiss-based job seekers, that is, both Swiss and foreign nationals registered with Swiss job agencies, in sectors or regions where the unemployment rates are higher than average. ‘Higher than average’ unemployment has been defined as the 12 month average unemployment rate plus 5 percentage points.  During the transitional period, this will rise to being the 12 month average unemployment rate plus 8%.  In those sectors or regions, an employer must advertise any role with the central employment agency for five working days. Only after that period, may the job be advertised through all the usual channels and the employer may recruit from abroad.  An employer will be fined for non-compliance.

Fourthly, the text of the (now defunct) New Settlement Agreement, negotiated by David Cameron with the EU in February 2016, contained not only provision for an emergency brake on benefits but also a potentially significant provision of a putative emergency brake on the volume of migration:

Whereas the free movement of workers under Article 45 TFEU entails the abolition of any discrimination based on nationality as regards employment, remuneration and other conditions of work and employment, this right may be subject to limitations on grounds of public policy, public security or public health. In addition, if overriding reasons of public interest make it necessary, free movement of workers may be restricted by measures proportionate to the legitimate aim pursued. Encouraging recruitment, reducing unemployment, protecting vulnerable workers and averting the risk of seriously undermining the sustainability of social security systems are reasons of public interest recognised in the jurisprudence of the Court of Justice of the European Union for this purpose, based on a case by case analysis. (emphasis added)

So where is the emergency brake? It is buried in the language. According to the orthodoxy, direct discrimination can only be saved by express derogations, indirect discrimination can be saved by a broader range of objective justifications. The striking feature of the Brussels text is that it does not restrict objective justifications (or ‘overriding reasons of public interest’ as they are referred to) to indirectly discriminatory measures. This might suggest that even directly discriminatory measures could be justified on the grounds of ‘encouraging recruitment’ and ‘reducing unemployment’. This might suggest that there was scope to read into the New Settlement Agreement a means of developing the EU’s own emergency brake on the volume of migration.

We therefore argue that there are models for what might become the UK’s emergency brake. How might they be applied in the context of a model based on fair movement?

IV The Future?

We would call for the introduction of an emergency brake, not at national level but at regional level, perhaps at the level of devolved administrations or other regional groupings, to take account of the substantial variation in the needs of the regions. At present Scotland is calling for more migration, parts of England less so. Thus, an emergency brake mechanism would need to apply on a regional basis. Relying on both economic data (such as labour market criteria e.g. relative levels of unemployment, demands for unemployment benefits, wage levels), demand for public services (e.g. population growth, population churn, waiting lists) and political experience (e.g. what constituents are saying through the ballot box and in person at surgeries), these regions could make a request to national government to impose restrictions on migration for a time limited period. These restrictions might be sectoral, based on skill levels, or more general and for a defined period of time.  The operation of the registration system outlined in blog 1 would be the vehicle for controlling those who could work in a particular area.

Who might pull the emergency brake?  There is clearly a need for both an objective evidence base for its application such as economic data. However, given the highly politicised nature of the issue, the decision of when to pull the emergency brake could not simply be left to a body separate to the Government.  Nevertheless, we would suggest that there would also need to be certain safeguard provisions in place requiring minimum objective indicators in the economic data to be met before any subjective political decision might be made. The EU is unlikely to concede on any such mechanism without a dual control by the EU. So a mechanism like the one in Article 113 EEA would also need to be established.

Would such mechanisms satisfy Leave voters or would they regard them as merely window dressing? Much depends on the seriousness with which the mechanism is regarded, the rigorousness of the objective criteria and the willingness of local politicians to engage.


For purists, what we are proposing does serious damage to the principles of free movement of persons.  We know that. However, we recognise that, following Brexit, the UK will no longer be in the EU’s paradigm of free movement. While universities and other big employers have benefitted from free movement, we recognize that politically free movement is unlikely to be the outcome of the negotiations (except possibly for a short transitional period).   The economic benefits of migration are not in doubt but we recognize that the political will for continued free movement is simply not there. 

In our scheme, we seek to square that circle and offer some, admittedly crude, options for a way forward.  What we propose is a scheme which demonstrates to the British public that the government is taking back control of migration while at the same time offering flexibility for those employers, including farmers and those in the hospitality sector, who argue they need access to EEA workers but without facing the bureaucracy and costs associated with a full blooded visa regime.

Some might argue that our proposed scheme, discussed across the three blogs, is not so different from the current free movement rules as applied in the UK. We disagree. First, our proposal for fair movement introduces a registration scheme and requires those registering generally to be engaged in economic activity. Second, we have argued that economic activity must be accompanied by a meaningful salary threshold or have a relatively high skill level. Third, our scheme would allow restrictions on access to social security benefits. Fourth, we argue that there should be an emergency brake which is not currently available under EU law.

We recognize that a scheme which is neither free movement nor highly restrictive access risk pleasing noone but at the moment there is little else on the table. We also recognise that concerns about migration are many and varied and that they interconnect with concerns about other policy choices: cutbacks in public services, the failure of the planning system to deliver sufficient and affordable housing to meet local needs, and the failure of the enforcement agencies (where they exist) to ensure that EU workers’ employment rights are enforced.

The system we propose would show that the UK is responding to the basic calls to take back control of immigration, while giving the government time to tackle the deeper seated, more intractable problems concerning lack of skills and training in the UK and the need to provide proper funding for public services.

Barnard & Peers: chapter 27

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Wednesday 20 June 2018

Fair movement of people: equal treatment? (Part Two)

Catherine Barnard and Sarah Fraser Butlin*

*The authors are both at the University of Cambridge and funded by the ESRC’s UK in a Changing Europe programme


In the first blog (here), we argued that a future UK/EU migration policy should be based around the notion of fair – not free – movement. One element of this would be a work permit scheme dependent on having genuine employed or self-employed activity (or sufficient resources for migrants and their families), accompanied by a simplified registration scheme, based on the scheme already used for Croatian migrants.

A second element of our scheme would include possible restrictions on the principle of equal treatment in respect of both work and access to benefits.  We suggest that the UK needs to utilise the restrictions on equal treatment that already exist in the Citizens’ Rights Directive 2004/38 while developing the restrictions on the equal treatment principle contained in the Brussels New Settlement Agreement negotiated by David Cameron in February 2016.  We suggest that this may (eventually) be acceptable to the EU because it reflects both the origins of the free movement provisions in the EU and a political realisation that free movement is less popular than it was for Western EU states. Anything negotiated for the UK might offer a path for Austria, Denmark, Germany and other Member States to restrict access to benefits to EU migrants in the first years of their arrival.

II Origins of Free Movement and the equal treatment principle

The 1948 Paris Treaty saw free movement as a way of optimising a natural resource, namely labour, but one which was subsidiary to the objective of seeking full employment for national workers. However, it was also clear that where host States chose to use migrant workers, they had to ensure that migrants enjoyed satisfactory conditions, albeit not necessarily equal treatment. Nevertheless within a year, the five signatory States (Belgium, France, Luxembourg, the Netherlands and the UK) of the Brussels Treaty recognised the need for equal treatment of migrant workers in relation to social security and concluded the Multilateral Convention on Social Security. 

In 1951, the Treaty founding the European Community for Coal and Steel (ECSC) made provision, by way of Article 69(1), for non-discrimination on the grounds of nationality in the coal and steel industries of workers of proven qualifications, subject to the “limitations imposed by the fundamental needs of health and public order”. 

Thus, even before formal discussions about the establishment of the Common, now Single, Market, had begun, ideas of equal treatment of migrant workers and the interrelationship between free movement of labour and social security provision were already in play as a means of facilitating the free movement of labour. In the proposals of the Inter-Governmental Conference (IGC) in June 1956, free movement was to be defined as ‘the right to present oneself in any country of the Community to the posts advertised and to remain in that country if a job is actually obtained’ and this was without ‘any restriction which does not apply to national workers themselves’ i.e. they had to enjoy the principle of non-discrimination which was delivered by Article 45(2) TFEU.

Scroll forward through the ensuing half century and the principle of equal treatment is extended to those EU migrants who were not fully economically active (students, the retired and persons of independent means (PIMs)), and even those without resources by a combination of the Citizens’ Rights Directive 2004/38 (CRD) and the Treaty provisions including those on EU citizenship.

The CRD already contains limits on the right to equal treatment. For those who are not economically active, they are not entitled to equal treatment in respect of social assistance (benefits for the very poor) for the first three months, nor are they entitled to equal treatment in respect of student grants and loans until they have been in the host country for 5 years. The five year restriction on students grants and loans also applies to those who are economically and semi-economically active. Nevertheless, those who are economically active enjoy equal treatment from day one in respect of all other matters. However, the principle of equal treatment has always allowed states to impose, say, a one-year residence requirement before receiving a benefit although only if the residence requirement can be objectively justified and is proportionate.

Notwithstanding the possibilities open to the UK to restrict equal treatment, these limitations were not sufficient for many UK voters. In the run-up to the referendum in the UK there were concerns about EU workers claiming equal treatment in respect of in work benefits such as tax credits. There was particular concern about equal treatment for those who were not economically active. The EU ‘benefit scrounger’ became the bogeyman of the UK’s referendum.

III Recent Court of Justice jurisprudence on citizenship

There were signs that the Court of Justice (CJEU) had started to listen to these concerns, especially about equal treatment for those not economically active. For example, in Collins the CJEU held that a habitual residence requirement prior to claiming a benefit could be objectively justified by the need to ensure that there was a genuine link between the applicant for an allowance and the geographic employment market in question. This decision chimed with a broader recognition by both the Tory and Labour parties that there was a need for “fair contribution” before benefits should be paid.

In Dano (discussed here) the Court suggested that, in the case of a person who was not economically active, the right of lawful residence, acquired by demonstrating possession of comprehensive sickness insurance and sufficient resources, as required by the CRD, was a precondition to the enjoyment of the principle of equal treatment. The Court held expressly that benefit tourism would not be encouraged. 

In Commission v UK (discussed here) the Court confirmed that there was nothing to prevent the grant of social benefits to Union citizens who were not economically active being made subject to the substantive condition of a right to lawfully reside in the Member State.

Thus, the recent case law puts considerable power in the hands of the host Member States: individuals can be excluded from even relying on the equal treatment principle if they do not satisfy the requirements of the CRD. Even if they do satisfy those requirements, states can still impose residence requirements as a precondition to entitlement to benefits, provided those residence requirements are justified and proportionate, and states can impose checks to verify this. There were signs that the Court was beginning to let states take back some control of its welfare states.

IV        “New Settlement” agreement

Some of the restrictions on the principle of equal treatment and benefits recognised by the Court were incorporated in David Cameron’s now defunct ‘New Settlement’ or Brussels Agreement, negotiated with the EU in February 2016. It effectively codified the CJEU’s decisions in Dano and, another case decided at much the same time, Alimanovic (discussed here): Member States could refuse to grant social benefits to people who did not have sufficient resources to claim a right of residence or who were solely entitled to reside because of their job search. 

However, more significantly the Brussels Agreement introduced the idea that there could be an emergency brake on in-work benefits. The agreement proposed amending Regulation 492/2011 ’to take account of a pull factor arising from a Member State’s in-work benefits regime‘ in order to ‘provide for an alert and safeguard mechanism that responds to situations of inflow of workers from other Member States of an exceptional magnitude over an extended period of time’. A Member State wishing to use the mechanism would notify the Commission and the Council that ‘such an exceptional situation exists on a scale that affects essential aspects of its social security system, including the primary purpose of its in-work benefits system, or which leads to difficulties which are serious and liable to persist in its employment market or are putting an excessive pressure on the proper functioning of its public services’.

The proposed mechanism was for the Commission to examine the notification and for the Council to authorise the member state, by way of an implementing act, to restrict access to in-work welfare benefits ‘to the extent necessary’ for a total period of up to four years from commencement of employment.

The rules were sophisticated but needed some careful explaining and, as anyone involved in the referendum discovered, the need to explain meant the debate was lost. However, we suggest that the Brussels agreement, which never came into force following the Leave vote, may help inform any future agreement with the EU in respect of limiting the equal treatment principle.

V. The equal treatment principle in the model of fair movement?

So what might the new scheme of equal treatment look like under our proposed immigration regime? In just the way that the founder Member States recognised that there should be some limits on equal treatment for migrants, we accept that there needs to be some limits on that equal treatment in order to respect the concerns expressed in the referendum. Following the model of the Croatian scheme, proposed in the previous blog, a Croatian national becomes entitled to social security after 12 months of authorised work. This might be the starting point for the new scheme. However, under the Croatian scheme, those in authorised work are entitled to means-tested benefits. Under any new scheme the UK might argue for no means tested benefits such as tax credits for 12 months. More radically, the UK might want to return to the model proposed in the New Settlement Agreement where in-work benefits for those on the lowest pay be phased in over four years of residence.

VI.       Conclusions

Given what was achieved by the Brussels negotiations, together with the jurisprudence of the Court of Justice, is it possible to envisage some form of evolving concept of fair movement, providing a flexible but controlled approach to migration that is strongly aligned to the needs of the labour market, as those negotiating the original version of the Treaty advocated? We are advocating the utilisation of tools already found in the CRD and possibly in the New Settlement Agreement. The rights would apply to those EU/EEA nationals in a recognised category – as a (genuine) worker (as defined in the previous blog, with minimum income thresholds and hours of work?), a self-employed person or a service provider.

EU/EEA nationals could also move as a student or a person of independent means, both needing to show comprehensive sickness insurance and sufficient resources, terms which should be more substantively defined. And they should be registered in the place of residence, with relevant documentation proving their entitlement which employers would need to check before offering work, higher education establishments would check before admission and providers of public services would need to check before offering those services. Once entitlement is established, the principle of equal treatment is applied but phased as the CRD currently provides and nuanced as in the case law of the Court of Justice and in accordance with the terms of New Settlement Agreement.  In particular, the use of residence requirements as a limitation on access to social security benefits would enable the Government to challenge criticisms of “benefit tourism”.

We would suggest that this tempering of the free movement of persons would achieve a balance between the political, social and cultural concerns about immigration with a desire for fairness to EEA migrants. It draws on some of the old thinking: the early drafters of European documents on free movement grappled with some of the issues that are now being faced in the UK. While equal treatment has been at the core, it is a notion which has long been qualified both by the EU’s secondary legislation and the case law of the Court.

Barnard & Peers: chapter 27, chapter 13

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Tuesday 19 June 2018

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

Catherine Barnard and Sarah Fraser Butlin*

*The authors are both at the University of Cambridge and funded by the ESRC’s UK in a Changing Europe programme. Thanks go to their colleagues, Graeme Ross, Steve Peers, Jonathan Portes and Madelaine Sumption.


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

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

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

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

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

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

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

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

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

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

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

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

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

Back to the Future

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

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

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

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

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

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

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

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

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

Recent examples linking economic activity with free movement

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

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

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

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

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

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

- a Seasonal Agricultural Workers Scheme certificate; or

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

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

The mechanics of a registration scheme

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

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

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

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

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


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

Barnard & Peers: chapter 27, chapter 13

Photo credit: BBC