EU Referendum Briefing 4: Immigration

Steve Peers

Introduction

What impact does the UK’s membership of the European Union (EU) have on immigration and asylum? This post examines that controversial issue, looking in turn at migration to the UK by non-EU and EU citizens.

Non-EU migration

It’s central to distinguish between non-EU and EU migration in the referendum debate for two reasons. First of all, because while EU migration is obviously closely connected to the UK’s membership of the EU, non-EU migration is not. That’s simply because the UK has negotiated and used opt outs from EU laws on non-EU migration and asylum, particularly from the EU’s borderless Schengen zone. This means that the UK can control its borders with the rest of the EU as regards non-EU citizens, applying its own law to admit them or to refuse them entry. So it’s false to say that the UK has ‘lost control of its borders’ as far as non-EU migration is concerned.

As I noted in the first EU Referendum Briefing, these opt-outs could only be removed by a Treaty amendment which the UK government and parliament agreed to. Moreover, the Schengen opt-out can only be removed by a public referendum.   

Secondly, the distinction is important because non-EU migration actually accounts for a greater share of net migration to the UK than EU migration does, as demonstrated here:

Moreover, for those who would like to see net migration to the UK reduced to the level of (say) 50,000 or below 100,000, it is self-evident from this graph that leaving the EU will not, by itself, accomplish this. Even with no EU migration, non-EU migration alone would still be well above the 100,000 level, as we can clearly see. Conversely, some would like to see more non-EU migrants admitted to the UK. Fine: the UK can admit them any time it likes. It’s entirely the government’s decision not to. But doing so would clearly move the UK further away from a target of 100,000 migrants, even if the UK leaves the EU.

A small minority of non-EU citizens in the UK are covered by EU law. First of all, non-EU family members of EU citizens are covered by EU free movement law. However, the UK’s renegotiation deal (as discussed here) would allow it to restrict their numbers considerably, by tightening the rules on their entry.

Secondly, the UK opted into the ‘first phase’ of EU asylum law, in 2003-05. At that time, though, it had a veto over asylum law proposals, and used it to insist that the EU rules would not change UK law. Although the ‘Leave’ side claims that the EU court ‘controls Britain’s asylum system’, in fact the only British asylum cases which the EU court has decided concern the ‘Dublin’ system of allocating responsibility for asylum applications between EU countries.

This system allows the UK to insist that other Member States take back asylum-seekers who have entered their territory before they got to the UK. If the UK left the EU, it would no longer be subject to these Dublin rules, unless the EU agreed to sign a treaty with the UK to that effect. This is pretty unlikely, since the EU has only signed such treaties with countries like Norway and Switzerland, for the sole reason that those countries also signed up to be part of the Schengen area at the same time.

Let’s think about what all this means in practice. Some non-EU migrants who have travelled through the rest of the EU do attempt illegal entry into the UK, or would probably like to do so (those in Calais and Dunkirk, for instance). But why would that change if the UK left the EU? The people concerned wouldn’t suddenly lose all desire to come to the UK. Their intended illegal entry would not become harder in any way. It would be against the law – but it already is now. Brexit would not actually move the UK further away from the continent geographically. People do attempt illegal entry into non-EU countries, like the USA; and refugees flee to and stay in non-EU countries (like Turkey, Kenya or Lebanon) too.

Some on the Leave side have suggested that the UK is vulnerable to sexual assault from non-EU migrants on the continent. Let’s unpack that. None of the non-EU migrants concerned have the right of entry into the UK. The UK can simply refuse them entry at the border. In contrast, the Orlando killer was a US citizen, who could have come to the UK without a visa, on the basis of the UK’s visa waiver for US citizens.

It’s sometimes suggested that non-EU migrants in the rest of the EU will all gain EU citizenship and come to the UK shortly afterward. But as shown in three separate analyses – by Full Fact, BBC Reality Check, and Open Europe – gaining EU citizenship is very difficult for non-EU citizens. It requires a long wait, a clean criminal record and satisfaction of many other criteria. If non-EU citizens don’t have legal residence status, or their asylum application fails, they can be deported. Nearly 200,000 non-EU citizens are in fact expelled from the EU every year.  

Finally, let’s apply this analysis to this poster produced by some on the Leave side, unveiled last week:

No one on the poster has any right to enter the UK. All of them can be refused at the border. Brexit would change nothing in this regard – besides making it harder to remove to the EU those who do manage to enter illegally and apply for asylum. The prospect that many of them would gain EU citizenship and move to the UK is remote. 

So the poster is essentially unrelated to the referendum. As such, it is not an attempt at rational argument - but rather an appeal to irrational fear.

EU migration

In contrast, as noted already, the migration of EU citizens is indeed relevant to the referendum debate. Much of this debate is about the economic impact of EU migration, including its impact on public services. I’ll leave that side of the debate to the economists. But there are some important legal issues that should be clarified, related to access to benefits and exclusion on grounds of criminality. The key point is that the free movement of EU citizens, while generous compared to ordinary immigration laws, is not unlimited.

What are these limits? First of all, EU citizens have to meet the criteria to stay. The main legislation on the free movement of EU citizens – known as the ‘Citizens’ Directive’ – provides that EU citizens and their family members can move to another member state initially for a period of three months. But it also says explicitly that the EU citizen has no right to any social assistance benefits during this time. Indeed, the UK has removed EU job-seekers’ access to job-seekers’ allowance during the first three months of their stay.

After three months, the Citizens’ Directive says that EU citizens and their family members can stay subject to further conditions: they are either workers or self-employed; or have ‘sufficient resources’ not to burden the social assistance system, along with health insurance; or are students in a post-secondary institution, if they have health insurance and declare that they will not be a burden to the social assistance system. The EU court has confirmed that there is no right to stay just to obtain social assistance without ever working in the host country. Recently it also confirmed the UK government’s refusal to pay child benefit or child tax credit to those who did not qualify to stay.

It’s sometimes suggested that ‘500 million people can move to the UK’ under EU free movement law. Yes – if there were 500 million jobs for them to come and do. Or 500 million university places available. Or if all of those 500 million people had a small fortune stashed away. Obviously nothing like those numbers of jobs, university places or self-sufficient people exist.

What about EU migrants who come to the UK and look for work? David Cameron has suggested they can be automatically removed after six months if they don’t find work. This isn’t correct: the Citizens’ Directive says that they can stay if they ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. But as mentioned already, they are not entitled to any benefits from the UK while looking for work. Also, they must meet the criteria of self-sufficiency, otherwise they would not be entitled to stay after three months anyway.

What if an EU migrant works in the UK for a time, then becomes unemployed? It is possible that they can retain status as a (former) worker, and therefore keep access to social assistance benefits. There are limits to this, however.  In particular, if the EU worker has been employed for less than one year in the UK, he or she would only retain ‘worker’ status for six months after becoming unemployed. At that point the UK can cut off access to their benefits, as the CJEU has confirmed.

Workers are entitled to equal treatment as regards benefits, including top-up benefits paid to those in work, which are a large part of the UK tax and benefit system. However, the deal on the renegotiation of the UK’s EU membership specifies that if the UK votes to stay in the EU, the current EU rules will be changed so that the UK can apply a four-year ban for workers from other EU member states on in-work benefits.

There renegotiation deal also says that the UK will be able to limit on the child benefit exported to EU workers with children in other member states, fixing the rate of that child benefit to the cost of living in the country of the children’s residence.

After five years’ legal stay on the basis of the Citizens’ Directive, EU citizens and their family members can obtain permanent residence status, meaning that they no longer have restricted access to social benefits.

As for criminality, it is sometimes suggested or inferred that the UK cannot refuse entry or expel EU migrants on criminal law grounds at all. This is clearly false. The Citizens’ Directive allows for expulsion, entry bans or refusal of entry for those who are a threat to ‘public policy, public security or public health’. There are limits, however. Restrictions must be proportionate and ‘based exclusively on the personal conduct of the individual concerned’. People cannot be excluded on general preventive grounds, but on ‘personal conduct’ which ‘must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’.

British authorities can check on an individual’s police record after entry, and can also issue an entry ban preventing that person from coming to the UK in the first place. For those who are on the territory, there is greater protection against expulsion over time, but there is never any absolute ban on expulsion.

It has been suggested that the EU court has prevented 50 EU criminals from being removed from the UK. This is false. Any such judgments were made by UK courts or the European Court of Human Rights.

To prove that point, let’s look at a list of all the cases which the EU court decided on EU citizenship in the last five years. There are 53 cases, and only five of them concern expulsion or exit bans of EU citizens due to criminality. Of those five cases, just three concern the UK.  

In those five cases, the Court decided that: 

a) time spent in prison in the UK  by an EU citizen’s family member did not count toward getting permanent residence under EU law (Onuekwere); 

b) an EU citizen convicted of child cruelty could not count prison time toward a ten-year threshold giving extra protection against expulsion (G case);

c) the UK does not have to give an EU citizen information which could compromise national security during an expulsion proceeding (ZZ case);

d) people with a drug trafficking conviction can be banned from leaving the country (Gaydorov); and 

e) child abusers can be expelled on grounds of ‘public security’ even if they have been resident for over ten years (I case).

So in every single relevant judgment in the last five years, the EU Court confirmed that Member States could limit the rights of convicted criminals or terrorist suspects.

The ‘Leave’ side has referred to another supposed EU court ruling, about the daughter-in-law of a terrorist in the UK. In fact there is no ruling in that case yet – only the non-binding opinion of an ‘Advocate-General’. And according to that opinion, the person concerned can indeed be expelled, if a British court believes that she is a risk to public security.

It is also possible to expel EU citizens on grounds that they rely on social assistance.

One final point about the free movement of EU citizens. The Leave side has referred several times to the possibility of Turkey joining the EU. It’s sufficient to point out, as I discussed in a previous Referendum Briefing, that: a) every Member State has a veto on this; Turkey has agreed 1 out of 35 negotiating chapters, in 11 years of talks; and there would also be a lengthy period after Turkish accession before the free movement of persons applied.

Barnard & Peers: chapter 13

Credits - Meme: Pawel Swidlicki; Graph: The Independent; Photo: home.bt.com

The final UK/EU renegotiation deal: legal status and legal effect

Steve Peers

Is the deal on renegotiation of the UK’s EU membership legally binding? If so, what does that mean exactly? In particular, is the deal ‘legally binding and irreversible’, as David Cameron had pledged? In part, that’s linked to the substance of the deal, which I have examined already in a post about the immigration (free movement) aspects. I will write later about the other aspects (sovereignty, Eurozone and competitiveness); and see also the analysis of the ‘red card’ for national parliaments by Katarzyna Granat here.

But in part it’s an issue about the very legal nature and legal nature of the deal itself. Some on the Leave said have already said that it’s not legally binding. So is it binding? And if so, what exactly is its legal effect in practice? I’ve addressed this already in an earlier post about the draft deal, but I’ll now update that analysis (recycling parts of it) to take account of the final deal.

The answer to those questions is complicated, because there are several different parts of the deal, taking different legal forms. For each part, the legal status depends on several different factors: when the text would be adopted; who would have to approve it; whether the EU courts have power to overturn it, and whether they are likely to do so; and whether the text could be repealed or amended in future. (I am assuming throughout that by ‘irreversible’, David Cameron meant irreversible without the UK’s consent).

This blog post looks first at the legal form of the agreement. Then I examine, based on prior experience, whether the EU can be ‘trusted’ to implement the draft deal. Finally, I provide, in one table, my assessment indication of the extent to which each of the parts of the draft deal are ‘legally binding and irreversible’, based on the factors mentioned above. (There’s a shinier version of this table on the ‘Full Facts’ website here).

Legal form of the main deal

The renegotiation deal takes the form of seven legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘draft Decision’); a Statement of the Heads of State and Government (which consists of a draft Council Decision); a Declaration by the European Council: and  four declarations by the Commission. Implicitly, it also includes three planned EU legislative proposals, all dealing with the free movement of EU citizens (the emergency brake on benefits, EU citizens’ non-EU family members and export of child benefit), which are referred to in these texts. The UK government will also table some domestic legislation linked to the renegotiation deal, but since those proposals have not appeared yet I won’t comment on them for now.

One important point before we continue: while the title of the deal refers to the UK only, none of the actual text of the deal applies solely to the UK. So it would apply to all Member States. That means it’s possible, for instance, that a proposal which the UK supports could be stymied by other Member States’ national parliaments (via the Council), using the new ‘red card’ for national parliaments objecting to EU proposals. It is possible, however, that the UK would be the only Member State aiming to implement some parts of the renegotiation deal, in particular the ‘emergency brake’ on benefits; and of course some of the existing opt-outs referred to in the deal only apply to the UK and one or two other Member States.

Let’s begin with the easiest parts of the deal (legally speaking): the planned EU legislation. We know the legal effect of EU legislation, once it’s adopted: it’s binding and directly applicable (in the case of the two planned Regulations on in-work benefits and child benefit exports), or binding as to the result to be achieved, leaving national authorities the choice of form and methods (in the case of the planned Directive on EU citizens’ non-EU family members). (See the definitions of EU legislation set out in Article 288 TFEU). The more difficult question here is the process. Can it be guaranteed that the proposals will: (a) be made; (b) be adopted; (c) not be struck down by the EU Court of Justice (CJEU); and (d) not revoked?

It’s up to the Commission to make proposals. The main Decision of Member States can’t bind the Commission (more on that below), but the deal includes three declarations by the Commission, announcing its intention to make these proposals. For those proposals to be adopted, they must be approved by the Council (by a qualified majority of Member States) and the European Parliament (by a majority of the vote, under most variants of the EU legislative process). Again, the Decision of Member States doesn’t bind the Council or the European Parliament. But the Council is made up of Member States’ ministers, and in the renegotiation deal the Member States commit themselves to supporting two of these three proposals (on child benefit and the emergency brake). It’s odd that there’s no parallel commitment as regards the third proposal (on EU citizens’ non-EU family members). The timing of these measures depends on how soon they would be adopted, although the Commission declares that it will table them after a ‘Remain’ vote, if there is one.

The renegotiation deal foresees that the new EU law creating an ‘emergency brake’ for EU workers’ in-work benefits would subsequently have to be implemented following a UK request to use it. It’s a bit vague about the exact details of this process, to avoid irritating the European Parliament, but it’s clear that the Council would decide on the UK application. The voting rule isn’t specified, but it would be legally dubious if the vote had to be unanimous on this (because it concerns an issue on which vetoes don’t apply). A Commission declaration states that the Commission is willing to make this implementing proposal; but there is no commitment from the Member States to support it. The timing would follow the adoption of the legislation on this topic: it would likely take at least one month for the UK’s request to be approved. 

So the real question is whether to trust the Commission and Council (ie the Member States); although it’s also notable that the Member States haven’t committed themselves to support all aspects of the deal in this area, but only some of it. I’ll return to that question of trust below, as regards the deal in general. But it doesn’t even arise as regards the European Parliament (EP) or the CJEU, as they are not bound by the deal. It remains to be seen whether the EP will object to some or all of the legislative plans (this might become clearer closer to the referendum date). The position of the CJEU would only be clear if a legal challenge reached it. That would most likely follow from a challenge by an individual to the implementation of the new legislation, after it’s adopted, via the national courts. So it would be some years away. I have discussed the possible challenges to the legality of the changes on free movement law in my separate post on those issues. For a summary of this analysis, see the table below.

Leaving aside the question of Court challenges, could the legislation be revoked or amended, after it was adopted? In principle, that is possible, using the same legislative procedure: proposal from the Commission, qualified majority in the Council, and support from the EP. So the UK could not veto this taking place. But implicitly the Commission’s commitment to make these proposals, and Member States’ commitment to support at least two of them, suggest this is not going to happen. Again, this comes back to a question of trust. 

The renegotiation deal also refers to Commission plans to issue ‘guidance’ on aspects of EU free movement law. This concerns part of the rules on EU citizens’ non-EU family members (part of those rules would be covered by a new law). There would also be ‘guidance’ on the issue of criminality of EU citizens. For the latter point, the Commission’s declaration states that it will ‘examine the threshold’ relating to expulsion of criminal EU citizens when the EU citizens’ Directive is revised in future. This is too imprecise to regard as a commitment.

Next, the draft Council decision on Eurozone governance. This measure can be adopted by the Council itself, as part of its powers to govern its own activity. It does not need to be proposed by the Commission, or agreed by the European Parliament. It is similar to an existing Council decision, which provides for delays in the vote if a sufficient number of Member States have qualms about them. Protocol 9 to the Treaties says that any changes to such rules must be discussed by consensus; arguably that means that the Decision could not be amended or repealed without the UK’s consent. However, it’s not clear if Protocol 9 applies to the decision on Eurozone governance. Since the draft Decision would not amend the rules of the Treaty on the adoption of legislation, but only provide for a delayed vote, it seems very unlikely that the CJEU would annul it.

In fact, it’s not even clear who would challenge it: the Member States support it as part of the deal; there seems little reason why an individual would challenge it in the national courts; and it would be hard for an individual to find a procedural route to challenge it in the courts anyway (the CJEU has ruled that procedural rules of the Council don’t give rise to individual rights). That only leaves the European Parliament, and this Decision doesn’t appear to be at the top of their concerns about the deal. Finally, as for timing, the renegotiation deal provides that the Decision will be adopted once a ‘Remain’ vote is notified (if there is one), with no further action necessary. The deal also provides for a Treaty amendment in future on this point; more on that below. 

Finally, the main part of the renegotiation deal: the Decision of Heads of State and Government. It takes the form of five sections, dealing first of all with the UK’s four main negotiating objectives: the Eurozone (section A); competitiveness (section B); sovereignty (section C); and EU free movement (section D). Section E includes rules on dispute settlement and entry into force.

First of all, it should be noted that the Decision is not EU law as such; it’s international law. It’s often described as a proposed act of the European Council, which is the EU institution consisting of Heads of State and Government. But that’s simply not correct: it’s an act of the Heads of State and Government as such, not the European Council (or any other EU institution). That distinction might sound like hair-splitting to non-lawyers, but it has practical legal consequences. (See also the opinion of the EU Council legal service on this Decision).

While the Decision is not described as a treaty, it could be regarded as a ‘treaty in simplified form’ (see the broad definition of a treaty in Article 2(1)(a) of the Vienna Convention on the Law of Treaties). Certainly the UK government is going to register it as an international treaty (see Articles 77-80 of that Convention). This form of legal act is not new to the EU: it was used in 1992, to encourage Danes to ratify the Maastricht Treaty, and in 2008, to encourage Irish people to ratify the Lisbon Treaty.

What are the distinctions between this Decision and EU law? First of all, while the Decision is binding (as confirmed by the conclusions of the European Council), since binding effect inherently follows from its status as a treaty, it is binding under international law, not EU law. Secondly, the Decision does not as such change EU law, although other elements of the overall deal would, when implemented: the planned legislation on free movement issues, and the Council Decision on Eurozone issues. The Decision also contains rules on the application of EU law in practice (namely, Member States’ voting in Council after a ‘red card’ is issued by national parliaments) and a commitment to amend the Treaties in future, as regards the Eurozone governance and the exemption of the UK from ‘ever closer union’.

Indeed, the Decision could not have changed EU law as such, without following the formal procedures to that effect set out in EU law itself. I discussed the issue of amending EU secondary law above, but the same is true of EU primary law (the Treaties). The prior Decisions relating to Denmark and Ireland did not change the EU Treaties, and they could not, because the CJEU had ruled that the Treaties could only be amended using the procedure set out within them, in the Defrenne II judgment. Like the prior decisions, the Decision specifies that it does not amend EU as such, but interprets it. This is consistent with CJEU case law, which accepted in the Rottmann judgment that the previous Decision on Denmark could be used to interpret EU law.

However, the Decision does include legal obligations for Member States as a matter of international law; this is fine as long as the particular obligations don’t conflict with EU law. In the event of any conflict, the primacy of EU law means that the latter takes precedence over the renegotiation Decision. But is there any conflict? This is a substantive question, and in any event where the renegotiation Decision calls for EU secondary law measures to be adopted (the free movement legislation, the Eurozone Decision) the real question is whether those measures would themselves breach the Treaties if adopted. I will examine whether there is any conflict with the Treaties as regards competitiveness and sovereignty in a subsequent post, but I will comment on one here: the commitment of Member States to block Council decision-making if a ‘red card’ is pulled by national parliaments, on the condition that national parliaments’ concerns are not addressed.

Andrew Duff has argued that this breaches EU law, because it infringes the powers of the European Parliament in decision-making. In my view, this is incorrect. A decision by the Council to stop discussing proposed EU legislation does not alter the Parliament’s role. It’s always open to the Council to stop discussing proposed legislation if there is insufficient interest in a proposal or for any other reason, and it’s not rare for it to do so. Every year, the Commission withdraws proposals because it has given up hope that the Council will ever agree to them (for the most recent such decision, see here). The EP can block proposed legislation too, where the ‘ordinary legislative procedure’ applies; it just does so less frequently than the Council.

A subtler argument is that this clause in the Decision in effect amends the Treaty (and so is therefore inapplicable due to the conflict with EU law) because it introduces a new voting rule in the Council without amending the Treaty to that effect. It’s more problematic than the new rule on delaying Council voting as regards Eurozone issues, since that latter rule doesn’t block the adoption of a proposal, and follows an existing secondary law precedent. However, as with a comparable clause in the ‘fiscal compact’ treaty, an agreement by Member States to coordinate their voting in Council does not amend the Treaties, whether it takes the form of an informal agreement (as it more often does) or a formal treaty to that effect. Even if this rule did breach EU law, how could the primacy of EU law be enforced in this context anyway? By a national court, or the CJEU, telling a Member State to vote a way it didn’t want to vote in the Council? This would be an unprecedented incursion into the relationship between national governments and national parliaments, which the Treaties recognise (in the Protocol on national parliaments) is a matter for national law alone to regulate.

As for the Treaty amendment process, it’s correct to say (as Andrew Duff does) that that the Treaty gives a role to the Commission and EP. But let’s not overstate that role: neither of them can block Treaty amendments, in most cases. The only exception is Treaty amendments which solely concern more majority voting, or more powers for the EP. But the renegotiation deal does not call for either of that special sort of Treaty amendment, but (implicitly) for the usual procedure to amend the Treaties.

Otherwise, the EP’s sole power is to insist that there has to be a fully-fledged ‘Convention’, with delegates from the EU institutions, national parliaments and national governments, to discuss proposed Treaty amendments. But the EP can’t set the agenda for the Convention, or determine its outcome. Anyway, that outcome is not binding upon the Member States, which then hold an Inter-Governmental Conference (IGC) to negotiate the final text – which the EP cannot reject. The result of that Convention will probably influence the outcome of the IGC, but doesn’t bind it.

What would actually happen, if a ‘Convention’ is established? The last Convention, in 2002-3, had a broad agenda, and in practice the EP was able to steer it toward a highly integrationist conclusion. But any Convention convened in (say) 2017 would now include a lot more national parliamentarians critical of the EU, from every perspective. They might well want to drive the Convention towards a stronger version of the ‘red card’ for national parliaments, as well as repatriation of powers from the EU. Anyway, the wording of the Treaty suggests that the agenda of the Convention is limited to the issues originally tabled for Treaty amendment.

So the real impediment to Treaty amendments is not at the EU level. Rather, it’s the risk of rejection in national parliaments (and occasionally referendums), with a further long-stop risk of rejection by national constitutional courts. It’s impossible to guess at this point what would happen to the Treaty amendments foreseen by the renegotiation Decision at national level. So there is no legal certainty that those Treaty amendments would definitely be approved.

On the other hand, the renegotiation Decision itself does not need national parliamentary approval, at least as a matter of EU law (whether some Member States’ law might require it is a separate question). Nor does it need any sort of approval from any of the EU’s institutions – although the planned legislation referred to in the Decision does, of course, need those institutions’ involvement. Since it’s not part of EU law, the validity of the renegotiation Decision could not be challenged directly before the CJEU, although it is possible that a national court could ask whether national implementation of EU based on the renegotiation Decision was in conflict with EU law.

As for the timing, the renegotiation Decision was apparently already formally adopted on 19 February. The text of Section E of the Decision says it will come into force automatically as soon as a ‘Remain’ vote (if there is one) is notified. The Decision is irreversible in the sense that the UK government has to consent to amend it or repeal it; this is explicitly confirmed by the European Council conclusions. There is no provision for a Member State to denounce it, or any other indication that it’s possible to do so; therefore it is subject to the general rule in Article 56 of the Vienna Convention that a treaty cannot be denounced in the absence of a clause to that effect.

However, the distinction between the renegotiation Decision and EU law does mean that there is a gap in the Decision’s enforceability. Section E of the Decision refers to bringing a dispute between Member States about the application of the Decision before the European Council. But unlike the fiscal compact Treaty, there is no provision on bringing a dispute before the CJEU, which could then impose fines. So despite the binding nature of the renegotiation Decision, there is no clear mechanism for making it stick. This brings us back to the issue of trust, discussed further below.

Finally, some commentators on my previous blog posts on this issue raised the question of whether Heads of State and Government could still act outside the framework of the EU Treaties, given that the Treaty of Lisbon upgraded the status of the EU institution in which they meet – the European Council. In my view, that change in EU law did not transfer the capacity of Heads of State and Government to act to the European Council, except where the Treaty amendments did that expressly (for instance, as regards appointments to the European Central Bank). This follows from the principle of ‘conferred powers’ set out in the Treaties: in the absence of any power for the European Council to adopt anything like the renegotiation Decision, it couldn’t have adopted it.

Can the EU be trusted?

As noted already, the EU has agreed Decisions like the renegotiation Decision twice before, as regards Ireland and Denmark. In those Decisions, the EU promised a Treaty amendment to Ireland, and delivered it in the form of a protocol several years later. It didn’t expressly promise a Treaty amendment to Denmark, but delivered one anyway, as part of the Treaty of Amsterdam (another Protocol, attached to the Treaties, which has since been amended). It’s sometimes suggested that the EU tricked Denmark because the CJEU later ignored the Danish opt-out of EU citizenship. But this is a myth: the fact is that Denmark never opted out of EU citizenship. The 1992 Decision on Denmark simply contained clarifications relating to the meaning of EU citizenship (see Section A of that decision), not any form of opt-out.

Another Treaty amendment (in the form of a protocol), relating to the legal effect of the EU Charter of Fundamental Rights, was promised to the Czech Republic if it ratified the Treaty of Lisbon. In this case, there was no Decision of Member States’ Heads of State and Government, but the draft Protocol and the promise were set out in conclusions of the European Council. The Protocol was subsequently formally proposed, but it was not pursued after a new Czech government withdrew the previous government’s request. It’s possible that the Czech government decision was influenced by the European Parliament, which had voted against the draft Protocol. But as noted above, the EP does not have a veto over Treaty amendments: indeed, even after the EP's objection, the Council recommended that the Treaty amendment process get underway. 

The most the EP can do to stop Treaty amendments is to demand that a 'Convention' be established to discuss them. But remember: the Convention process does not give the EP any kind of veto over a Treaty amendment either. Ultimately a subsequent Inter-Governmental Conference decides what the final text of those Treaty amendments will be. So if the Czech government had really wanted to insist upon the adoption of its Protocol, it would have got it in the end.

For those who really don’t trust the EU to deliver on the renegotiation package, there’s always one further option. The UK government could commit itself, perhaps in the form of an Act of Parliament addressing the renegotiation deal, that it will report regularly on the implementation of that deal. If the key aspects of the deal are not in fact implemented for any reason, and there is no prospect that they will be, it would, as I’ve argued before, be reasonable to argue for another referendum.

Overview: is the renegotiation deal legally secure?

It follows from the above that the renegotiation deal is binding – and anyone who says otherwise (without clarification) is just not telling the truth. But there are two significant caveats to that: (a) parts of the deal, concerning the details of the changes to free movement law and Treaty amendments, still have to be implemented separately; and (b) there are limits to the enforceability of the deal.

The following table lists the binding elements of the renegotiation deal and summarises how enforceable they are and whether they need further implementation (and if so, what exactly this entails).

Decision of Heads of State and Government (in general)

Binding: in international law

In effect: after Remain vote notified

Further approval needed: No, unless national law requires parliamentary approval in some States

CJEU vulnerability: Zero; although CJEU might disagree with some interpretations of EU law

Reversible without UK consent: No

Commitment to amend treaty

Binding: in international law

In force: after Remain vote notified

Further approval needed: Yes, from national parliaments and possibly electorates; Commission, European Parliament have non-binding role in Treaty revision

CJEU vulnerability: Zero; although challenges under national constitutions are possible

Reversible without UK consent: No

Commitment to apply ‘red card’ for national parliaments

Binding: in international law

In force: after Remain vote notified

Further approval needed: No

CJEU vulnerability: Low

Reversible without UK consent: No

Council Decision on voting on financial issues

Binding: in EU law

In force: after adoption of this Decision, on date that Remain vote is notified

Further approval needed: Council has to adopt; no role for any other EU institution or national parliaments

CJEU vulnerability: low

Reversible without UK consent: No (arguably)

Legislation on free movement issues (3 measures)

Binding: in EU law

In force: after proposals tabled and adopted, which is due after Remain vote is notified

Further approval needed: Yes. Commission proposals (political commitment to make them); Council approval (political commitment from Member States to support 2 proposals); European Parliament (position unknown)

CJEU vulnerability: Low-medium for 2 proposals (family members, child benefit); High for emergency brake

Reversible without UK consent: Yes

Photo credit: www.leftfootforward.org

Barnard & Peers: chapter 2, chapter 3

The final UK renegotiation deal: immigration issues

Steve Peers*

So David Cameron has achieved his deal on the renegotiation of the UK’s EU membership (full text of that deal here). This is the first of a series of posts on the final deal – starting with the issue of ‘EU immigration’ (or, from the EU law point of view, the free movement of EU citizens). This builds on (and partly recycles) my earlier post on the EU immigration issues in the draft deal.

I will write later about the other substantive issues (competitiveness, Eurozone relations, sovereignty) and on the legal form of the deal (although see already my post on the legal form of the draft deal; my comments there won’t change much when I update them in light of the final deal). And see also Katarzyna Granat's analysis of the 'red card' for national parliaments – again, the final text of the deal doesn’t differ from the draft here).

The deal takes the form of seven legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘Decision’); a Statement of the Heads of State and Government (which consists of an agreed Council Decision); a Declaration by the European Council (which consists of the EU Member States’ Heads of State and Government, although when acting collectively they are legally distinct from the European Council): and four declarations by the Commission. Of these, Section D of the draft Decision and three of the Commission declarations relate to immigration issues. One of these Commission declarations (relating to child benefit exports) was added during the negotiation, while the text of Section D and another declaration (on the ‘emergency brake’ in in-work benefits) was amended. The other declaration (on so-called ‘abuse’ of free movement) was not changed.

While Section D contains some important attempts to clarify EU free movement law, the key feature of the deal on immigration is the intention to propose amendments to the three main current EU laws. These three laws are: (a) the EU citizens’ Directive, which sets out the main rules on most EU citizens moving to other Member States: (b) the EU Regulation on free movement of workers, which contains some specific rules on workers who move; and (c) the Regulation on social security, which sets out rules on coordination and equal treatment in social security for those who move between Member States. 

All three sets of amendments are to be proposed by the Commission as soon as the main Decision enters into effect. That will happen (see Section E of the Decision) as soon as the UK announces that it will remain a member of the EU – if, of course, the UK public vote to remain in the upcoming referendum. The deal includes a commitment from the Commission to make these proposals, and from the other Member States to support their adoption in the EU Council (oddly, the latter commitment does not apply to the planned amendment to the citizens’ Directive, since that proposal is not referred to in the main Decision).

However, all three proposals will be subject to the ‘ordinary legislative procedure’, meaning that they have to be agreed with the European Parliament. It is also possible that their legality would be challenged before the EU Court of Justice. I can’t appraise the political likelihood of the European Parliament approving the proposals, although the largest party (the European People’s Party, made up essentially of centre-right parties like Angela Merkel’s Christian Democrats) has announced that it supports the renegotiation deal in principle, subject to examination of the details. However, I offer some thoughts below about possible challenges to the legality of these laws if they are adopted.

Unlike some other parts of the deal (on the position of non-Eurozone states, and the exemption of the UK from ‘ever closer union’), there is no mention of future Treaty amendments to give effect to any part of the text dealing with free movement (immigration) issues. So the main impact of the deal in this area will come from the three legislative proposals, once adopted. Since those proposals will not be tabled or agreed until after the UK ‘Remain’ vote (if there is one), this means that the analysis of the details is necessarily somewhat speculative. There are some important points of detail that will only be clear once the legislation is proposed and approved. I flag up some of those finer points below.

Although the press discussion has focussed on the ‘emergency brake’ in in-work benefits, there are three categories of issues: benefits (including a couple of points besides that emergency brake); the family members of non-EU citizens; and EU citizens who commit criminal offences. I refer back to Cameron’s November 2014 speech on EU immigration issues (which I analysed here) where relevant.

It should be noted that there is no text in the deal on two of the issues which Cameron had raised: removal of job-seekers if they do not find a job within six months, and a requirement to have a job offer before entry. Both these changes would have required a Treaty amendment, in light of the Antonissen judgment of the CJEU.

Benefits

There are three benefits issues in the draft deal: (a) the ‘emergency brake’ for in-work benefits; (b) the export of child benefit; and (c) benefits for those out of work.

‘Emergency brake’ on in-work benefits

Cameron had called for no access to tax credits, housing benefits and social housing for four years for EU citizens, but later signalled his willingness to compromise on this point. The position of non-workers and job-seekers is discussed below; but the position of workers is legally and politically difficult, since the Treaty guarantees them non-discrimination.

In the end, the deal provides not for permanent discrimination on this issue, but temporary discrimination on the basis of an ‘emergency brake’. The Commission will propose legislation on this issue, which will provide that the UK (or other Member States) can apply a four-year ban on in-work benefits, subject to substantive and procedural criteria. Procedurally, the rules will say that a Member State will apply to the Council to authorise the ban. The Council will presumably act by the default voting rule in the Treaties: a qualified majority on a proposal from the Commission. That means no single Member State can veto the request to pull the brake. The final deal leaves vague the exact authorisation process which will apply in the Council, to avoid annoying the European Parliament (EP); but that detail will have to be addressed sooner or later. Certainly the EP will have to approve the legislation which sets up that process in the first place; the question is whether it would have a role deciding if the brake should be pulled.

A Commission declaration states the UK qualifies to pull this ban immediately, in particular because it did not apply transitional controls to workers from new Member States in 2004. However, there is nothing in the deal to suggest that Member States – who would have the final word – also agree. The restrictions would only to those who were ‘newly arriving for a period of seven years’, and would have to be phased out during that time. Again, the seven years matches the transitional period which the UK could have applied to control the numbers of workers from new Member States, back in 2004.

Several points of detail arise. First of all, after the seven years have expired, it’s not clear how much time would then have to pass before the brake could be applied again. Secondly, it will be important to clarify the meaning of those who are ‘newly arriving’. What about those who lived in the UK before, and are now returning here? How much time would they have had to spend in Poland (say) before they are considered ‘newly arriving’ again? Presumably the brake would not apply to those who are already here when the brake is pulled, but are not working at that time (due to youth, unemployment, childcare or illness) but who get work afterward.  

Thirdly, it will be necessary to define how to calculate the four year period. It’s easy enough to apply it to those who begin work as soon as they (newly) arrive in the country, and who work for the full four years afterward. But what about those (a non-working spouse, or a teenager, for instance) who start work some time after they enter the country? What about those who start work, stop for whatever reason and then restart? What about those who start work during the brake period, then spend a year or so in Poland, then come back? And how can we be sure when exactly someone entered the country in the first place?

The final crucial point of detail is, obviously, the grounds on which the brake can be applied. According to the Decision, it would apply where:

‘an exceptional situation exists on a scale that affects essential aspects of [a Member State’s] 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’.

There’s certainly a widespread perception that one of more of these problems exist in the UK and are caused by the large increase in the number of workers from other Member States in recent years. However, there are two serious problems with the proposed mechanism. Firstly, as Jonathan Portes has argued, objective evidence for this view is lacking. Secondly, while the CJEU has been willing to accept certain limits to free movement rights on the grounds of protecting health systems (see my prior blog post for details), this would have a much more far-reaching impact on non-discrimination for workers. It’s certainly conceivable that by analogy from the Court’s obvious willingness to keep EU monetary union afloat, along with its endorsement of restrictions for non-workers in recent years (see below), it might accept that these plans do not violate the Treaties. But as EU law currently stands, that is probably a long shot.

Export of child benefit

Cameron sought to end payment of child benefit to children living in other Member States. This payment is provided for in the EU social security coordination Regulation, which would have to be amended to change those rules. There was a strong argument that the plan would have breached the Treaties, since in the case of Pinna the CJEU struck down EU legislation that allowed Member States not to export such benefits at all as a breach of the rules on free movement of workers.

The deal does not go as far as Cameron wanted: instead child benefit can be limited by indexing it to the ‘conditions’ in the receiving State. This will only apply to ‘new claims made by EU workers in the host Member State’; but after 1 January 2020, this ‘may’ be extended to ‘existing claims already exported by EU workers’. This is clarified by the Commission declaration, which states that the ‘conditions’ refers to the ‘standard of living and level of child benefits’ in the child’s State of residence. The transitional rule, and the Commission declaration, were added during negotiations. It’s an open question whether this new law would breach the Treaties, since there is no case law on the point.

Several points of detail arise here. It’s explicit that the new rules will be optional, so Member States can still be more generous if they want to. There’s nothing to limit their application to the UK (although I will refer to the UK and Poland here, purely for the sake of readability). It’s not clear whether the rules will also apply to British citizens who have children in other Member States; arguably the principle of non-discrimination will require that they do. It’s also not clear what happens to ‘mixed’ families of (say) British and Polish parents (or indeed step-parents). Will it depend on which parent is the worker? What if both are workers? What if that changes over time?

The transitional clause also raises issues. The Decision distinguishes between ‘new claims’ and ‘existing claims already exported by EU workers’. Presumably the new law will state a precise date at which claims can be regarded as ‘existing’ (say 1 January 2017). These must be existing exported claims, so if a child moves to Poland after 1 January 2017, or is born after that date and resides in Poland, then child benefits could be reduced, even if the worker is already in the UK. So if my estimated date is correct, anyone who is thinking about having a child, and who wants to avoid the application of these rules, had better get a move on. Perhaps this Easter will be the season of fertility even more than usual.

Finally, it should be noted that a challenge by the Commission to other aspects of UK payment of child benefit to EU citizens is still pending. The non-binding opinion of an Advocate-General argues in favour of the UK in this case (for a critical view, see Charlotte O’Brien’s analysis here). It wouldn’t surprise me if the Commission quietly withdrew this legal challenge. You read that here first.

Benefits for those out of work

Cameron sought to end social assistance for job-seekers. The EU legislation already rules out social assistance for job-seekers, so this reflects the status quo. Although the CJEU has said that job-seekers have a right to access benefits linked to labour market participation, if they have a link already with the labour market in question, it took a narrow view of this rule in the judgment in Alimanovic. Pure benefit tourists (who have never had work in the host State) are not entitled to benefits, according to the judgment in Dano. So the Decision simply reiterates this case law, which has already satisfied Cameron’s main objectives in this field. It should be noted that another judgment by the Court of Justice on EU benefits issues is due next week.

EU citizens’ family members

Under the EU citizens’ Directive, currently EU citizens can bring with them to another Member State their spouse or partner, the children of both (or either) who are under 21 or dependent, and the dependent parents of either. This applies regardless of whether the family members are EU citizens or not. No further conditions are possible, besides the prospect of a refusal of entry (or subsequent expulsion) on grounds of public policy, public security or public health (on which, see below).

In principle EU law does not apply to UK citizens who wish to bring non-EU family members to the UK, so the UK is free to put in place restrictive rules in those cases (which it has done, as regards income requirements and language rules). However, the CJEU has ruled that UK citizens can move to another Member State (the ‘host Member State’) and be joined by non-EU family members there, under the more generous rules in the EU legislation. Then they can move back to the UK (the ‘home Member State’) with their family members, now invoking the free movement rights in the Treaties. This is known in practice (in the UK) as the ‘Surinder Singh route’, because of the name of the case which first established this principle. In 2014, the CJEU clarified two points about this scenario (as discussed by Chiara Berneri here): (a) it was necessary to spend at least three months in the host Member State exercising EU law rights and residing with the family member, before coming back; and (b) the EU citizens’ Directive applied by analogy to govern the situation of UK citizens who return with their family members.

In his 2014 speech, David Cameron announced his desire to end all distinction between EU citizens and UK citizens as regards admission of non-EU family members, by allowing the UK to impose upon the EU citizens the same strict conditions that apply to UK citizens. Since this would have deterred the free movement of those EU citizens who have non-EU family members, there is a good chance that it would have required not just a legislative amendment but a Treaty change.  (Note that according to the CJEU, EU free movement law does not just require the abolition of discrimination between UK and other EU citizens, but also the abolition of non-discriminatory ‘obstacles’ to free movement).

However, the deal does not go this far. The main Decision states that:

‘In accordance with Union law, Member States are able to take action to prevent abuse of rights or fraud, such as the presentation of forged documents, and address cases of contracting or maintaining of marriages of convenience with third country nationals for the purpose of making use of free movement as a route for regularising unlawful stay in a Member State or for bypassing national immigration rules applying to third country nationals.’

The Commission Declaration then states that it will make a proposal to amend the citizens’ Directive:

‘to exclude, from the scope of free movement rights, third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen or who marry a Union citizen only after the Union citizen has established residence in the host Member State. Accordingly, in such cases, the host Member State's immigration law will apply to the third country national.’

That Declaration also states that the Commission will clarify that:

‘Member States can address specific cases of abuse of free movement rights by Union citizens returning to their Member State of nationality with a non-EU family member where residence in the host Member State has not been sufficiently genuine to create or strengthen family life and had the purpose of evading the application of national immigration rules’; and

‘The concept of marriage of convenience - which is not protected under Union law – also covers a marriage which is maintained for the purpose of enjoying a right of residence by a family member who is not a national of a Member State.’

It seems clear that these ‘clarifications’ will not be included in the legislative proposal, since the declaration later concludes (emphasis added):

‘These clarifications will be developed in a Communication providing guidelines on the application of Union law on the free movement of Union citizens.’

Let’s examine the planned legislative amendments, then the guidelines which will provide ‘clarifications’. The amendments will exclude two separate categories of non-EU citizens from the scope of the citizens’ Directive: those who did not have prior lawful residence in a Member State before marrying an EU citizen who has moved to another Member State; and those who marry such an EU citizen after he or she has moved to a Member State. For these people, national immigration law will apply.

The background to this proposal is CJEU case law. In 2003, in the judgment in Akrich, the CJEU ruled that Member States could insist that non-EU family members had previously been lawfully resident in the Member State concerned (previously no such rule appeared to exist). But in 2008, in Metock, the CJEU overturned this ruling and said that a prior legal residence requirement was not allowed.

Several points arise. First, the basic definition: what is lawful residence exactly? Presumably it means more than lawful presence, ie a stay of three months on the basis of a valid visa or visa waiver. But what about ambiguous cases, such as a pending asylum application or appeal? EU legislation says that asylum-seekers can usually stay until the application fails (if it fails), and then during the appeal (subject to some big exceptions). According to the CJEU, the EU’s main rules on irregular migrants therefore don’t apply to asylum-seekers whose application is pending.

Secondly, it’s odd to refer to national law alone, since sometimes EU law governs the admission of non-EU nationals. Even the UK (along with Ireland) is bound by the first-phase EU asylum law, and by the EU/Turkey association agreement. Denmark is bound by the latter treaty. And all other Member States are bound by the second-phase asylum law, along with EU legislation on admission of students and researchers and some categories of labour migrants (the highly-skilled, seasonal workers and intra-corporate transferees).

Thirdly, it’s arguable that the EU principle of non-discrimination applies. That would mean, for instance, that if a German woman already in the UK married her American husband, the UK would have to treat her the same as a British woman in the same situation – but no worse. This would in fact be relevant to every Member State – there’s nothing in this part of the deal that limits its application to the UK. (One important point of detail is whether all Member States would be obliged to apply the new rules on ‘prior lawful residence’ and ‘marriage after entry of the EU citizen’, or whether they could choose to waive one or both of those rules. The EU citizens’ Directive already states that Member States can apply more liberal standards if they wish to).

Finally, the consequences of the rule will need to be clearer in the future legislative amendments. Does the exclusion from the scope of the Directive mean that the family member is excluded forever from the scope of the citizens’ Directive – even if the person concerned is admitted pursuant to national immigration law? That would mean that national immigration law (or EU immigration legislation, in some cases) would continue to govern issues such as the family member’s access to employment or benefits, or subsequent permanent residence. It’s also not clear what happen to children such as the step-child of the EU citizen, or a child that was born to the EU and non-EU citizen couple while living in a third country.

Could this legislative amendment violate the EU Treaties? In its judgment in Metock, the Court referred almost entirely to the wording of the citizens’ Directive. It mainly referred to the Treaties when concluding that the EU had the competence to regulate the status of EU citizens’ third-country national family members. But it also referred to the Treaty objective of creating an ‘internal market’, as well as the ‘serious obstruct[ion]’ to the exercise of freedoms guaranteed by the Treaty, if EU citizens could not lead a ‘normal family life’. It must therefore be concluded that there is some possibility that the revised rules would be invalid for breach of EU free movement law.

Would the amendment violate the EU Charter right to family life? That’s unlikely. While the right to family life is often invoked to prevent expulsions of family members, the case law of the European Court of Human Rights gives great leeway to Member States to refuse admission of family members, on the grounds that the family could always live ‘elsewhere’ – as the CJEU has itself acknowledged (EP v Council). There is some possibility, though, that the CJEU would be reluctant to follow that case law (EP v Council concerns families entirely consisting of non-EU nationals) in the context of free movement: the idea that you could go away and enjoy your family life somewhere else is antithetical to the logic of free movement.

As for the ‘clarifications’ in future guidelines, they will of course not be binding. They first of all refer to cases where an EU citizen has moved to another Member State and come back to the home State. The definition of what constitutes a ‘sufficiently genuine’ move to another country is set out in the case law (three months’ stay with a family member) and mere guidelines cannot overturn this.

It should be noted that the Surinder Singh case law is in any event derived from the Treaty. This line of case law does not accept that such movement between Member States is an ‘evasion’ of national law – as long as free movement rights are genuinely exercised with a family member for a minimum time. The CJEU also usually assumes (see Metock, for instance) that a ‘marriage of convenience’ cannot apply to cases where there is a genuine relationship, even if an immigration advantage is gained. (The Commission has released guidelines already on the ‘marriage of convenience’ concept: see analysis by Alina Tryfonidou here).

Having said that, the planned legislative changes will complicate the plans of people who wish to move to another Member State with their non-EU family and then move back, since national immigration law will apply to their move to the host Member State. It will be important to see how the legislative amendments address the transitional issues of people who have already moved to a host Member State before the new rules apply. Can the home Member State say, possibly based on the Commission’s ‘guidance’ (which might be issued before the new legislation is adopted) that those families must now obtain lawful residence in the host State for the non-EU family member, before the non-EU family member can come to the home State?

Criminality and free movement law

The Treaties allow for the refusal or entry or expulsion of EU citizens on ‘grounds of public policy, public security or public health’. The citizens’ Directive sets out detailed substantive and procedural rules on this issue, which has been the subject of considerable CJEU case law.

What does the renegotiation deal do? First of all, the Decision states that:

‘Member States may also 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.’

To this end, the Commission declaration states that it will:

‘also clarify that Member States may take into account past conduct of an individual in the determination of whether a Union citizen's conduct poses a "present" threat to public policy or security. They may act on grounds of public policy or public security even in the absence of a previous criminal conviction on preventative grounds but specific to the individual concerned. The Commission will also clarify the notions of "serious grounds of public policy or public security" and "imperative grounds of public security" [grounds for expelling people who have resided for longer periods in a host Member State].  Moreover, on the occasion of a future revision of [the citizens’ Directive], the Commission will examine the thresholds to which these notions are connected.’

It’s not clear whether the revision of the Directive referred to at the end here is as imminent as the proposal to amend the rules to create a ‘prior lawful residence’ rule for non-EU family members. Otherwise the plan to issue guidelines is clearly not binding. The language in these guidelines partly reflects the existing law, but some features are new: the greater emphasis on past conduct, the lesser need to show that a threat is imminent and the possibility of expelling someone as a ‘preventative’ measure.

These changes fall within the scope of Cameron’s desire to have ‘stronger measures to deport EU criminals’. However, it should be noted that there is no specific reference to his plans for ‘tougher and longer re-entry bans for foreign rough sleepers, beggars and fraudsters’. While a conviction and re-entry ban for fraud might be covered by the guidelines referred to above, there’s no mention of clarifying entry bans as regards those guidelines, or changing the legislation on this issue. Also, as I noted in my comments on Cameron’s plans at the time, EU legislation does not allow for re-entry bans for rough sleepers and beggars, since the EU citizens’ Directive states unambiguously that a ban on entry cannot be imposed where a person was expelled for grounds other than public policy, public security and public health. Put simply, a Member State can impose an entry ban where an EU citizen has been expelled due to criminality – but not where he or she has been expelled due to poverty.

Longer waiting periods for free movement of persons from new Member States

Finally, it should be noted that the Decision briefly refers to Cameron’s plan to have longer waiting periods for free movement of persons in future accession treaties. It does not incorporate his suggestion, but merely notes it. However, since the details of each new Member State’s adaptation to EU law are set out in each accession treaty, which has to be approved by each Member State, the UK can simply veto any future accession treaties unless longer waiting periods for free movement are indeed included. The next accession to the EU is at least four years away, probably more. So nothing really turns on the absence of agreement with the UK’s position for now.

Conclusion

The key point to remember about the renegotiation deal, particularly as regards EU immigration, is that it consists of different parts. The main deal takes the form of a Decision, which essentially clarifies EU law without amending it. According to CJEU case law (Rottmann), the Court is willing to take Decisions like these into account when interpreting EU law.

However, in the area of EU immigration, the other parts of the deal are more relevant: the intention to pass three new EU secondary laws. Those new laws will be a fully-fledged amendment to existing EU rules, not simply a clarification of it. While some points of detail remain to be worked out, it is clear from the deal that the Commission will make proposals in these areas, and all Member States (ie the Council) will support them. It remains to be seen whether the European Parliament will approve them, and whether the CJEU would accept challenges to their legality. My assessment of the Court’s likely response, as detailed above, is that the amendments on family members will probably be acceptable; the child benefit reforms are an open question; and the changes on in-work benefits are highly vulnerable. Of course, there’s no prior case law on these specific issues, and so we can’t be certain of the Court’s approach in advance.

Overall, as I concluded in the earlier post on the draft agreement, these changes, if they are all implemented as planned, will fall short of a fundamental change in the UK’s relationship with the EU. But equally it is clearly wrong to say that they mean nothing – if in fact they are implemented. The changes would be modest but significant: amendments to three key pieces of EU legislation that would for the first time roll back EU free movement law, not extend it. Leaving aside the calls for non-binding guidelines, there would be cutbacks in in-work benefits (albeit for a limited period), significantly more control on the admission of non-EU family members of EU citizens, and more limited export of child benefit.

Barnard & Peers: chapter 13

Photo credit: www.telegraph.co.uk

*Disclosure: I will be consulting for the European Parliament on the free movement aspects of the renegotiation. However, my advice will be fully independent; I don't represent or advocate for the European Parliament (or anyone else) on these (or any other) issues.