What are the legal implications of David Cameron’s proposed reforms to EU migration?
By Damian Chalmers and Stephen Booth
In his recent speech on EU migration, David Cameron said that his package of reforms would require EU Treaty changes – and therefore unanimous support from other governments. His motivation for making this explicit at this stage is likely to be twofold: firstly, in terms of political presentation, it is easier for him to argue his proposed changes are significant – we believe they are in any case. Secondly, Treaty change is more ‘permanent’ than amendments to EU legislation as it can only be overturned by a subsequent Treaty amendment. It is thus less likely to be overturned than amendments to secondary legislation: albeit we believe the risk of such a politically important reform being overturned by either qualified majority voting or the EU’s Court of Justice is very small.
Nevertheless, the Prime Minister’s speech contained a number of individual proposals, many of which we believe would not require Treaty changes but could either be achieved by changing EU legislation or domestic law. In November, we proposed that EU migrants be denied access to in-work benefits for a number of years after arriving in a new member state. We believe this can be achieved via amendments to existing EU law rather than a Treaty change.
The Prime Minister’s proposals can be divided into four types of demand, and we will deal with each in turn, starting with the most legally controversial: access to in-work benefits.
This analysis is based on a longer legal note by Professor Damian Chalmers. You can read his analysis in full here:
David Cameron mentioned two proposed reforms:
a) “once they are in work, they won’t get benefits or social housing from Britain unless they have been here for at least four years.”
This could be achieved via amendments to EU legislation: This is the most legally complex of the proposals but we argue that it does not require Treaty change for two reasons. Firstly, access to in-work benefits is currently granted in EU law by virtue of a piece of secondary legislation, rather than by the Treaty article on free movement of workers. Secondly, the Treaties grant considerable discretion to the EU legislature (the Council of Ministers and the European Parliament) to place restrictions on access to such benefits provided that the legislation facilitates free movement more generally (which the relevant Directive would continue to do), the restrictions are based on objective criteria and are not disproportionate to the objectives they pursue.
A number of public interests (an individual being an unreasonable burden on the social assistance system, protecting a member state’s public finances and securing a sufficient degree of integration between the citizen of another Member State and the host society) have been recognised as justifying restrictions. We would add a further reason: the protection of national citizenship, which should be the default criterion for accessing social benefits. The EU Treaty clearly states that EU citizenship is complementary to national citizenship and shall not replace it, and a number of national constitutional courts have recognised it as a ground which can be used to limit EU law. It sets out a general interest, therefore, which is to be protected by EU secondary legislation.
The factors deemed to constitute a level of integration (say four years legal residence) sufficient to acquire the associated benefits of national citizenship would be better decided by the EU legislature, and, if it did that in a new Citizenship and Integration Directive, as we have proposed, we believe the EU’s Court of Justice (ECJ) would respect this position.
b) “If their child is living abroad, then there should be no child benefit or child tax credit at all no matter how long they have worked in the UK and no matter how much tax they have paid.”
Depending on what is sought this could be achieved under domestic law or amendments to EU legislation: Rights to child benefits are considered to fall within EU legislation rather than the Treaties. Therefore, restrictions on them do not require Treaty amendment. Such conditions could be found to constitute indirect discrimination, insofar as they adversely affect citizens from other EU state’s more than a state’s own nationals. As such, they will be considered to be unlawful by the ECJ unless they serve a public interest and the restriction is proportionate.
However, the Court has stated that a public interest which may be used to justify restrictions is a requirement that there be a link between the beneficiary of the benefit and the host society. There may be exceptional cases where the children have lived for a considerable period in the host society, and have then returned to their state of nationality because of circumstances such as family separation, and it would be possible to argue that a residence condition might not reflect their link with the host society. Therefore, a presumption that children should be resident in a host country before child benefits can be paid to their parents, which can only be rebutted where evidence is provided of a significant prior period of residence, could, in our view, be put in place under domestic law.
If the objective is a hard and fast residence requirement this could be achieved via amendments to EU legislation rather than Treaty change.
a) “We want EU jobseekers to have a job offer before they come here and to stop UK taxpayers having to support them if they don't.”
This depends on exactly what is proposed and the Prime Minister’s speech was ambiguous on this point: If he meant that any EU citizen must have a job offer before they can come into the UK, this would certainly require Treaty change. The case law of the ECJ is quite clear that the Treaty gives EU citizens not merely the right to work in another member state but also the right to look for work.
However, read in combination with the pledge to “stop UK taxpayers having to support them”, the proposal is better interpreted as suggesting that no social benefits will be granted to jobseekers. EU law already establishes that jobseekers are not entitled to social assistance and therefore such a reform would not require changes to EU legislation.
b) “We also want to restrict the time that jobseekers can legally stay in this country. So if an EU jobseeker has not found work within six months, they will be required to leave.”
It depends on exactly what is sought: In principle, the UK can already do this under its domestic law. EU law only grants a right of residence for more than three months to those who are employed, self-employed, and economically self-sufficient as well as their family members. The ECJ is clear that those people falling outside these criteria can be denied residence by member states.
The Court has said that member states were only required to give jobseekers a reasonable period to do find a job, and that six months was reasonable. However, at the same time, it ruled that individuals cannot be expelled as long as they “can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged”. While the onus is on the individual to prove this, clarifying what this condition means could be achieved by amending EU legislation. A hard and fast six month deadline would likely require Treaty change.
a) “stronger powers to deport criminals and stop them coming back…and tougher and longer re-entry bans for all those who abuse free movement including beggars, rough sleepers, fraudsters and people who collude in sham marriages.”
Those deported at the time of conviction can be refused re-entry under existing EU law: EU law currently allows member states to deport and exclude citizens from other EU countries on grounds of public policy. All the activities mentioned above, as criminal offences, would fall within that heading. Exclusion orders can also be issued and EU law does not set an upper limit on them, although, in principle, they should only be issued for a ‘reasonable period’. The current EU rules stipulate that those facing exclusion orders longer than three years must have the right to challenge them. Indeed, the German government has said it will use its domestic law to impose re-entry bans of five years for those who commit benefit fraud.
The potential difficulty is for those EU citizens with family in the UK, who may be able to appeal deportation under the rights to family life guaranteed by the European Convention on Human Rights
In the case of significant criminal offences where the individual has served a long prison term, the deportation may be several years after the offence, and it is open to the individual to argue that they are a reformed character. This poses difficulties as the individual threat to public policy must be a present threat. Albeit this requirement is currently imposed by an EU Directive, we believe that, if the provision were repealed, there is a strong chance that the Court of Justice would reinstate it as a Treaty requirement. The only secure way in which automatic re-entry bans could be imposed on those convicted of long jail terms without Treaty change is, therefore, if it is agreed they will serve all their time in a prison in their state of nationality so that they are deported at the time of conviction.
b) “We must also deal with the extraordinary situation where it's easier for an EU citizen to bring a non-EU spouse to Britain, than it is for a British citizen to do the same. At the moment, if a British citizen wants to bring, say, a South American partner to the UK, then we ask for proof that they meet an income threshold and can speak English. But EU law means we cannot apply these tests to EU migrants.”
This would likely require Treaty change: There are a number of judgments where the ECJ has stated that refusing to grant a non-EU national family member residence would violate the Treaty because it would discourage the EU citizen from exercising their rights to free movement.
Alternatively, it would be possible for new EU legislation to harmonise requirements on family reunification between EU citizens and non-EU nationals, so that the latter could only join the EU citizen in another member state if they meet certain requirements. However, this would entail harmonisation in an area (non-EU migration) where successive UK Governments have sought to limit the EU’s influence. Concern to prevent marriages to citizens from other member states being used as a vehicle for marriages of convenience can be addressed through tightening up existing EU legislation.
“So we will insist that when new countries are admitted to the EU in the future, free movement will not apply to those new members until their economies have converged much more closely with existing Member States.”
The UK could use its veto to insist on these terms: As the Prime Minister said, the possibility for free movement of nationals of future EU member states depends on the terms of any accession treaty between that country and the EU. All existing members, including the UK, have a veto over any accession and this would allow the UK to insist on such terms.
Contact information and further reading:
1) For more information, please contact Damian Chalmers on D.Chalmers@lse.ac.uk, Stephen Booth on 0044 (0)788 162 5889 or the Open Europe office on 0044 (0)207 197 2333.
2) Damian Chalmers is Professor of European Union Law at the London School of Economics and Political Science, who is based half in the Law Department and half in the European Institute. Stephen Booth is Research Director of Open Europe. Both write in a personal capacity.
3) Damian Chalmers and Stephen Booth’s proposal for a new Citizenship and Integration Directive, which would limit EU migrants’ access to out-of-work and in-work benefits, social housing and publicly funded apprenticeships until after three years, is available here:
4) Open Europe’s research on the impact of restricting access to in-work benefits to new EU migrants can be found here:
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