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Free movement: Why reforming rules on in-work benefits

doesn’t require treaty change

Open Europe's Stephen Booth explains which of David Cameron'sproposed reforms to EU free movement can be achieved withoutEU treaty change.Free Movement of People, Immigration, UK politics

Stephen BoothActing Director

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Following David Cameron’s speech on immigration, much has been madeof his comments that the package of measures he proposed to reform EUfree movement would require treaty change.

In some cases, the speech was ambiguous about what exactly was beingproposed. For example, did Cameron really say EU migrants will need ajob oer before coming to the UK? This is important because it has legalimplications regarding whether some, all, or none of the proposals requiretreaty change, changes to secondary EU legislation or simply changes todomestic law. Although, politics will of course also play a major part.

In addition, some have questioned whether the proposal, outlined byProfessor Damian Chalmers and our Research Director Stephen Boothand adopted by Cameron, to limit EU migrants’ access to in-work benetsfor a certain period of years could be achieved without treaty change, asthe authors claim.

Today we have published Chalmers’ and Booth’s assessment of the legalimplications of the measures proposed in the Prime Minister’s speech and





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http://eulawanalysis.blogspot.co.uk/2014/11/the-nine-labours-of-cameron-analysis-of.html?m=1




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a restatement of the case for why access to in-work benets can berestricted via amendments to EU legislation rather than a treaty change.

Safe to say much of this is legally complex, but below is a summary of asummary of a longer legal note by Professor Damian Chalmers, which youcan read in full here.

David Cameron’s speech can be divided into four broad types of demand:

1. Four-year restriction on EU migrants’ access to in-work and child benefits

David Cameron mentioned two proposed reforms:

Once they are in work, they won’t get benets or social housing from Britain unlessthey have been here for at least four years.”

David Cameron, Immigration Speech, 28 November 2014

This could be achieved via amendments to EU legislation: This is the mostlegally complex of the proposals but we argue that it does not requireTreaty change for two reasons. Firstly, access to in-work benets iscurrently 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 (theCouncil of Ministers and the European Parliament) to place restrictionson access to such benets provided that the legislation facilitates freemovement more generally (which the relevant Directive would continue todo), the restrictions are based on objective criteria and are notdisproportionate to the objectives they pursue.

If their child is living abroad, then there should be no child benet or child taxcredit 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 oramendments to EU legislation but if the objective is a hard and fastresidence requirement this could be achieved via amendments to EUlegislation rather than Treaty change.

2. Tighter restrictions on EU jobseekers





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http://archive.openeurope.org.uk/Content/Documents/Legal_implications_of_Camerons_demands_for_EU_migration_reform_141209.pdf




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We want EU jobseekers to have a job oer before they come here and to stop UKtaxpayers having to support them if they don’t.”


This depends on exactly what is proposed. If he meant that any EU citizenmust have a job oer before they can come into the UK, this wouldcertainly require Treaty change.

However, read in combination with the pledge to “stop UK taxpayershaving to support them”, the proposal is better interpreted as suggestingthat no social benets will be granted to jobseekers. EU law alreadyestablishes that jobseekers are not entitled to social assistance andtherefore such a reform would not require changes to EU legislation.

We also want to restrict the time that jobseekers can legally stay in this country. Soif an EU jobseeker has not found work within six months, they will be required to

leave.”


In principle, the UK can already do this under its domestic law. EU lawonly grants a right of residence for more than three months to those whoare employed, self-employed, and economically self-sucient as well astheir family members.

However, the ECJ has ruled that individuals cannot be expelled as long asthey “can provide evidence that they are continuing to seek employmentand that they have a genuine chance of being engaged”. While the onus ison the individual to prove this, clarifying what this condition means couldbe achieved by amending EU legislation. A hard and fast six monthdeadline would likely require Treaty change.

3. Abuse of free movement


stronger powers to deport criminals and stop them coming back…and tougher and longerre-entry bans for all those who abuse free movement including beggars, rough sleepers,fraudsters and people who collude in sham marriages.”





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Those deported at the time of conviction can be refused re-entry underexisting EU law. Indeed, the German government has said it will use itsdomestic law to impose re-entry bans of ve years for those who commitbenet fraud. The potential diculty is for those EU citizens with familyin the UK, who may be able to appeal deportation under the rights tofamily life guaranteed by the European Convention on Human Rights.

In the case of signicant criminal oences where the individual has serveda long prison term, the deportation may be several years after the oence,and it is open to the individual to argue that they are a reformed character.This poses diculties as the individual threat to public policy must be apresent threat. Albeit this requirement is currently imposed by an EUDirective, we believe that, if the provision were repealed, there is a strongchance that the ECJ would reinstate it as a Treaty requirement.

We must also deal with the extraordinary situation where it’s easier for an EUcitizen 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 tothe 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 judgmentswhere the ECJ has stated that refusing to grant a non-EU national familymember residence would violate the Treaty because it would discouragethe EU citizen from exercising their rights to free movement.

Alternatively, it would be possible for new EU legislation to harmoniserequirements on family reunication between EU citizens and non-EUnationals, so that the latter could only join the EU citizen in anothermember state if they meet certain requirements. However, this wouldentail harmonisation in an area (non-EU migration) where successive UKGovernments have sought to limit the EU’s inuence. Concern to preventmarriages to citizens from other member states being used as a vehicle formarriages of convenience can be addressed through tightening up existingEU legislation.





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“4. Tighter restrictions on migration from new EU member states

David Cameron proposed:

So we will insist that when new countries are admitted to the EU in the future, freemovement will not apply to those new members until their economies have

converged much more closely with existing Member States.”


The UK could use its existing veto over new countries joining the EU toinsist on these terms.





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