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David Cameron Blinks On Immigration

19 November 2014

David Cameron has set out his vision of how the EU can control the free movement of workers. An ill-judged attempt to head off an electoral threat from the rabidly anti-European Union, anti-immigration UKIP, might be a better description.


Cameron blinked, as it was always likely he would. Talk of an ‘emergency brake’ on EU migrants to the UK was missing, as was any mention of caps or quotas. No doubt political self-preservation and the alarm of UK business leaders and investors to the prospect of the UK sleepwalking its way out of the EU played a significant part.

The focus is instead on blocking EU migrants from access to UK welfare payments until they have been resident and working in the country for four years. However, considerable doubt has already been cast over Cameron’s ability to secure the required changes to EU law, and certainly before any referendum on the UK’s membership in 2017. As the prime minister himself conceded on Friday, some (if not the vast majority) of his plans will require amendments and changes to EU treaties. Even if, and it is a big if, he were able to negotiate such a package with fellow EU leaders, it would still require a process of ratification in all 28 member states – something unlikely to happen any time soon.

In terms of specifics, the proposals include the following;

No access to tax credits, housing benefits and social housing for four years: This is the headline grabber.

The recent Dano judgment confirmed that EU Member States can circumscribe the conditions under which certain benefits are granted to economically inactive migrants to prevent them becoming an unreasonable burden on their social assistance system. The decision, as with all Court of Justice of the European Union (CJEU) rulings, was very particular to its facts, and did not seem to establish any new legal powers. Ms Dano was held never to have exercised Treaty rights, hence she did not comply with the Citizenship (Free Movement) Directive 2004/38 (CRD) in terms of a right of residence. In these circumstances she was not entitled to social benefits and could not invoke the principle of anti-discrimination.

What the case did not do was change the long recognized right to free movement of workers (and the associated right to equal treatment), something the CJEU jurisprudence has held to be a directly effective Treaty right. Therefore, as these proposals may affect EU citizens who are workers (as defined by the CJEU), rather that the Dano ‘economically inactive’, any change will require some form of Treaty amendment.

Longer waiting periods for free movement of persons from new Member States: This power already exists.

New Member State’s adaptation to EU law are set out in each accession treaty. As in the case of Bulgaria, Romania, and most recently Croatia, Member States, including the UK, are in a position to veto future accession treaties and to impose transitional waiting periods prior to full free movement rights becoming available.

EU citizens will have to have a job offer before entry: Article 6 of the CRD 2004/38 provides that EU citizens have the right of residence in the host Member State for a period of up to three months without being subject to any conditions or any formalities, other than the requirement to hold a valid identity card or passport.

This provision is without prejudice to any more favourable treatment which can be claimed by those EU citizens seeking to find work in that Member State. Under the case law of the CJEU, EU jobseekers may enter and stay for a sufficient period to apprise themselves of appropriate job opportunities (Antonissen). After the initial three month period EU Citizens can stay if they are workers, self-employed persons, students or otherwise have sufficient funds (Article 7(1) of CRD). In the case of job-seekers they can stay if they have a genuine chance of getting work.
It is therefore difficult to reconcile this particular proposal with current EU legislative provisions and case law.

Stopping the entry of non-EU family members without restrictions: Under EU law, non-EU family members have a qualifying right to reside in the UK where they are a family member of an EU national who is a worker or self-employed person in the UK.

Family member is defined as spouse or partner, the children of both (or either) aged under 21 or otherwise dependent, and the dependent parents of either (Article 2(2)(c) of CRD 2004/38 and reg 7(1)(b)(i) of the UK’s Immigration (European Economic Area) Regulations 2006).
Given that non-EU family members are not subject to any prior legal residence requirement (Metock judgment) or indeed other conditions such as language requirements, it is again difficult to see how these proposals are anything other than a restriction/deterrent to free movement and thereby requiring of some fundamental Treaty change or amendment.

Deportation of criminals and re-entry bans on rough sleepers and beggars: Among previous amendments introduced to the 2006 EEA Regulations on 1st January this year, were new regulations 20B and 21B. These powers seek to remove, bar from re-entry, and question Union citizens who are not (or are suspected of not) exercising a right to reside in the UK.

CRD 2004/38 makes no explicit provision for removal of EEA nationals on the ground that they do not (and previously did not) meet the conditions for residence. Indeed, the only grounds for restricting free movement of EEA nationals, explicitly laid out in the CRD 2004/38, are public policy, public security and public health (Article 27 and 29). Article 15(3) of CRD 2004/38 places similar limitations on re-entry bans. Even then, measures taken on these grounds are to be narrowly interpreted (Van Duyn v Home Office), and must be made on a case-by-case basis, and comply with the principle of proportionality (Bouchereau judgment). So the greater the degree of integration of EU citizens and their family members in the host Member State, the greater will be their protection against expulsion.

The link between deportation and financial resources, specifically looked at here in the case of beggars and fraudsters, is more complex. Potentially at least, economically grounded justifications for deportation are lawful (Grezelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve) but again will require examination on a case by case basis. They could not simply be part of a blanket rule. Similarly a criminal conviction, of and by itself, cannot automatically lead to expulsion.

The ending of payment of child benefit to children abroad: The payment of child benefit to children abroad seems to have exercised a number of people.

However if these proposals affect more non-UK nationals than UK nationals they are arguably indirectly discriminatory, something expressly prohibited by Article 4 of the EU Regulation 883/2004.


In its concentration on restricting in-work benefits rather than ‘benefit tourism’, the Government appears to at least have long last recognised that EU migrants come to work and not claim benefits (here).

The majority of provisions as framed, Cameron accepts, are not currently permissible under EU law. He (and any future leader who hitches his wagon to this particular horse) is also going to be legally and politically straitjacketed in terms of what they can do. To successfully push through these changes is therefore likely to require an almost Harry Houdini feat of escapology.


This blog was originally posted on The Justice Gap


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