tag:theconversation.com,2011:/id/topics/free-movement-of-people-eu-10376/articlesfree movement of people EU – The Conversation2019-05-21T11:41:31Ztag:theconversation.com,2011:article/1162442019-05-21T11:41:31Z2019-05-21T11:41:31ZMyth busted: EU migrants no extra burden on taxpayers in more generous welfare states<figure><img src="https://images.theconversation.com/files/275449/original/file-20190520-69169-1m6tqq9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Free movement of people isn't a huge financial burden on Europe's welfare states. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/download/confirm/616575683?src=I52f8liZb4srvypoOADDSw-1-9&size=medium_jpg">Babaroga/EPA via Shutterstock</a></span></figcaption></figure><p>For many of the eurosceptic parties expected to gain ground in the upcoming European parliamentary elections, migration – and particularly the principle of free movement of people within the EU – is a decisive issue. </p>
<p>The right to <a href="https://theconversation.com/what-the-eus-rules-on-free-movement-allow-all-its-citizens-to-do-62186">free movement means that EU citizens</a> can live and work in another EU country without needing a work permit. While free movement has benefited millions of EU citizens, its consequences have also spurred an intense public debate, especially in the UK in the lead up to the referendum on EU membership. The fact that EU workers have full access to the welfare state in the country where they are working has been a central concern. </p>
<p>Some have argued that free movement encourages so-called <a href="https://www.telegraph.co.uk/news/worldnews/europe/10377607/David-Cameron-Public-concern-about-benefit-tourism-widespread-and-understandable.html">“benefit tourism”</a>, the concept that EU citizens migrate purely to take advantage of more generous welfare states in other EU member states, putting extra stress on the public budgets in these countries. </p>
<p>In a recent <a href="https://www.reminder-project.eu/publications/working-papers/national-institutions-and-the-fiscal-effects-of-eu-migrants/">study</a> I conducted with my colleagues Joakim Palme and Martin Ruhs, we showed this is a myth for the majority of countries in Europe. In fact, the opposite is true: in the European countries which host the majority of EU migrants, these households are a net benefit to the public purse.</p>
<h2>Types of welfare system</h2>
<p>Our research explored what impact the type of welfare state has on public expenditure and revenue connected to EU migration. We defined five different types of welfare states, or regimes, covering 29 countries within the EU and the European Economic Area. </p>
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<li>The “basic security” regime: Ireland, Malta and the UK </li>
<li>The “continental corporatist” regime: Austria, Belgium, France, Germany, The Netherlands and Switzerland</li>
<li>The “Mediterranean corporatist” regime: Cyprus, Greece, Italy, Portugal and Spain</li>
<li>The “state insurance” regime: Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovenia and Slovakia</li>
<li>The “universal” regime: seen in Denmark, Finland, Iceland, Norway and Sweden</li>
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<p>These different types of welfare regimes are characterised by varying levels of generosity, eligibility criteria, health and childcare services and different funding principles. In the “basic security” regime, for example, benefits are often means-tested and family benefits are modest, with limited public support for childcare. In the “continental corporatist regime”, meanwhile, benefits vary across occupational sectors and child and elderly care are typically provided by the family. The “universal” regime is characterised by rather generous social insurance linked to earnings and families are supported both through cash benefits and public childcare. </p>
<p>By using <a href="https://www.reminder-project.eu/publications/working-papers/fiscal-effects-migration/">recent data</a> on the revenues and expenditures related to EU migration in each of the 29 countries in our study between 2005 and 2015, we were able to compare the effect on the public budget of a typical EU migrant household across these different types of welfare states. Our analysis considered both how migrants contribute to the public budget, for example by paying taxes, and the costs of their use of welfare benefits and services. </p>
<p>We found hardly any differences in how EU migration affects the public budget across the different types of welfare states. In four of the five welfare regimes we studied, where the great majority of EU migrants live, the net contribution to the public purse from the average EU migrant household was clearly positive and didn’t differ significantly across the different types of welfare states. The financial impact of different households – native, EU migrant and non-EU migrant, are presented in the graph below. There is a considerable degree of uncertainty in our estimates, which implies that even though some differences appear rather large, they are not statistically significant.</p>
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<p>The countries we identified in the “state insurance” regime, which are mainly in eastern Europe, were the only ones to stand out. In these countries, we found there was a slight negative impact on the public budgets of a typical EU migrant household, meaning that EU migrants in these countries used benefits and services costing slightly more than they provided in taxes. The cost averaged about 600 euros, per household year. But there are <a href="https://www.reminder-project.eu/wp-content/uploads/2018/03/March-2018-FINAL-Deliverable-4.1_with-cover.pdf">few EU migrant workers</a> in these countries so the actual effect on the public budgets was small. </p>
<h2>Positive contribution</h2>
<p>In further analysis, we found there wasn’t even a statistically significant difference between the contribution to the public budgets of EU migrants in the less generous Anglo-Saxon “basic security” regime in Ireland, the UK and Malta, and the Nordic “universal” regime. These are often portrayed as diametrically opposite. Expenditure per EU migrant household is higher in the Nordic countries, in line with what we would expect in a more generous welfare state. Yet, this higher level of expenditure is more than compensated for by higher revenues from EU migrants, mainly from taxes and social security contributions.</p>
<p>As a matter of fact, when excluding a couple of outliers – Norway, due to its oil revenues, Ireland, because of its large deficits during the financial crisis, and Poland because of issues surrounding migrant data – the net annual contribution from the typical EU migrant household was remarkably similar across the four non-eastern regimes, ranging between 4,800 to 5,500 Euros per year.</p>
<p>We also found that during the period we studied, the average contribution to the public budget from EU migrant households actually surpassed that of households of native born people in all of the regimes except the state insurance one of eastern Europe.</p>
<p>This means that EU migration represents a fiscal asset rather than a liability for the main host countries for EU migrants. In effect, restricting the free movement of workers would, if anything, imply a considerable cost for the public purse of these countries.</p><img src="https://counter.theconversation.com/content/116244/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marcus Österman receives funding from the Swedish Research Council. The study that this piece is based on has received funding from the European Union's Horizon 2020 research and innovation programme under grant agreement No 727072. </span></em></p>EU migrant households are actually a net benefit on the public purse in much of Europe.Marcus Österman, Research fellow, Political Science, Uppsala UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1142222019-03-28T11:33:24Z2019-03-28T11:33:24ZBrexit: what a delay means for EU citizens and the settled status scheme<p>Amid the ongoing Brexit stalemate, the Home Office is pushing ahead with its plan for EU citizens living in the UK to register for a new “settled status”. It has launched a new nationwide <a href="https://www.gov.uk/government/news/home-office-launches-nationwide-campaign-for-eu-settlement-scheme">marketing campaign</a> to encourage them to apply for the EU Settlement Scheme before its full roll-out on March 30. </p>
<p>All this is happening despite uncertainty over what the date of Brexit will actually be. At a crunch EU summit in Brussels on March 21, the EU agreed to grant the UK <a href="https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7960#fullreport">two possible extensions</a> of varying length to the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12012M050">article 50</a> negotiating period which governs the Brexit process.</p>
<p>If MPs in Westminster don’t approve the Brexit withdrawal agreement by March 29, then the Brexit date will be extended until April 12. If they do approve it, the extension will be until May 22. Yet the option to revoke the article 50 notification period – or cancel Brexit – and the option for a <a href="https://www.consilium.europa.eu/en/press/press-releases/2019/03/21/remarks-by-president-donald-tusk-after-the-european-council-meeting-art-50/">long extension</a> remain possible, should the UK decide to hold European Parliament elections.</p>
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<p>There are estimated to be over 3m EU citizens living in the UK and around 1.3m British citizens living in <a href="https://www.un.org/en/development/desa/population/migration/data/estimates2/estimates17.asp">other EU countries</a>. So what do the extended dates mean for citizens unsure of their status once the UK leaves the EU? </p>
<p>After Brexit, the rights of EU citizens in the UK will be protected either under <a href="http://www.legislation.gov.uk/ukpga/2018/16/notes/division/2/index.htm">national law</a> or by the existing international treaties the UK has signed, such as the <a href="https://rightsinfo.org/the-rights-in-the-european-convention/">European Convention of Human Rights</a>. The rights of UK nationals elsewhere in the EU will fall back on the protections provided by each country and EU legislation on the rights of third country nationals, such as the <a href="https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A32003L0109">long term residents directive</a>. This setup is likely to remain in place until the UK and the EU agree a future international treaty upon which their relationship will be based – when the second stage of Brexit is complete. </p>
<h2>EU citizens in the UK</h2>
<p>The rights currently guaranteed to mobile EU citizens and their families by EU law are wide ranging and often strongly depend on whether they are economically active. These <a href="https://sms.cam.ac.uk/media/2939190">include</a> the right to work, study and to undertake self-employment activity. They also include the rights to pensions and healthcare, and the possibility to draw on <a href="https://theconversation.com/brexit-and-benefits-why-leaving-the-eu-wont-solve-britains-migration-issues-60916">social welfare benefits</a>. </p>
<p>If the current withdrawal agreement is not approved by MPs, then EU law will cease to apply in the UK on April 12 if it leaves the bloc without a deal. So, it’s likely that most of these rights will depend on whether a person has the right to live legally in the UK. As of today, much uncertainty remains regarding the precise details of some rights, for example EU citizens’ access to <a href="https://www.gov.uk/guidance/eea-nationals-in-the-uk-access-to-social-housing-and-homelessness-assistance-in-a-no-deal-scenario">social housing and homelessness assistance</a> or <a href="https://www.gov.uk/guidance/eu-citizens-in-the-uk-benefits-and-pensions-in-a-no-deal-scenario">benefits and pensions</a>.</p>
<p>The government’s principle mechanism for determining the right of residence for non-Irish EU citizens after Brexit is the settled status scheme, which will be launched on March 30. It doesn’t cover Irish nationals, who will be protected in the same way as the UK nationals. </p>
<p>According to the scheme’s <a href="https://www.gov.uk/settled-status-eu-citizens-families">official guidance</a>, if the UK leaves the EU without a deal, EU citizens will have until December 31, 2020 to register. If MPs do agree the Brexit deal, the timeframe for registration would be longer: June 30, 2021. Those who don’t apply by these deadlines may <a href="https://migrationobservatory.ox.ac.uk/resources/briefings/deportations-removals-and-voluntary-departures-from-the-uk/">risk deportation</a> from the UK. This means that despite the uncertainty over when Brexit will actually happen, EU citizens are still encouraged to apply for settled status. They can seek <a href="http://www.eurights.uk/">free advice on how to do this</a>. </p>
<p>In a no-deal scenario, EU citizens in the UK will find it <a href="https://adminlawblog.org/2019/01/11/joe-tomlinson-and-byron-karmeba-no-deal-no-appeal-a-case-for-amending-the-uks-immigration-and-social-security-co-ordination-eu-withdrawal-bill/">more difficult</a> to challenge administrative immigration decisions in relation to settled status applications, especially given the UK’s extremely <a href="https://www.lawcom.gov.uk/project/simplifying-the-immigration-rules/">complex</a> current immigration rules. This is because the <a href="https://services.parliament.uk/bills/2017-19/immigrationandsocialsecuritycoordinationeuwithdrawal.html">Immigration and Social Security Coordination Bill</a>, currently going through parliament, doesn’t provide for a right to appeal to a tribunal in such circumstances. </p>
<p>In contrast, if a deal is agreed, the right to appeal decision is provided for in the withdrawal agreement, ensuring access to justice and better protection for some of the <a href="https://migrationobservatory.ox.ac.uk/wp-content/uploads/2018/04/Report-Unsettled_Status_3.pdf">most vulnerable EU citizens at risk</a>. These include – among others – children, carers, women, people who believe they are ineligible, or who will struggle to submit an application due to language, age, disability or digital literacy.</p>
<h2>British citizens in the EU</h2>
<p>Despite calls from citizens, the EU has <a href="https://www.bbc.co.uk/news/uk-politics-47408789">refused</a> to act separately to safeguard the rights of EU citizens in a no-deal scenario. As with the UK, <a href="https://ec.europa.eu/info/brexit/brexit-preparedness/residence-rights-uk-nationals-eu-member-states_en">many EU countries</a> will require UK nationals to complete temporary registration with the authorities, in order for their residence to be legally recognised. </p>
<p>The UK Foreign and Commonwealth Office published <a href="https://www.gov.uk/government/collections/overseas-living-in-guides">guidance</a> for UK nationals living in the EU which explains what residence rules will apply in each member state, and the Department for Work and Pensions has drafted special guidance on <a href="https://www.gov.uk/guidance/uk-nationals-in-the-eu-benefits-and-pensions-in-a-no-deal-scenario">benefits and pensions</a>. The European Commission also recently published <a href="https://ec.europa.eu/info/publications/factsheets-and-questions-and-answers_en">several factsheets</a> to help EU citizens in the UK and UK nationals in the EU plan their life in the case of no deal. </p>
<p>Despite this, there are many EU rights that are awarded to anyone living in an EU member state, regardless of their citizenship. These include consumer protection, workers’ rights or environmental protection, which award common guarantees that will <a href="https://www.bloomsburyprofessional.com/uk/questioning-eu-citizenship-9781509914654/">continue to be</a> applied to UK nationals living in the EU after Brexit. </p>
<p>For many, the uncertainty regarding their rights will remain. Once Brexit takes place, the next step will be to <a href="https://theconversation.com/four-options-for-uk-trade-after-brexit-62363">negotiate the future relationship between the UK and the EU</a>, which may create a different legal landscape for cross-border rights. But all this will depend on the international treaty negotiated in the second stage of the Brexit process.</p><img src="https://counter.theconversation.com/content/114222/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Egle Dagilyte has previously consulted the European Commission, The3Million and British in Europe. She is currently carrying out research on the Migrant Workers’ Mapping Project, funded by the Rosmini Centre Wisbech. Her work will contribute to the wider multi-agency two-year project led by the Fenland District Council (sponsored by the Controlling Migration Fund) that aims to understand migration in Fenland better, in preparation for post-Brexit challenges.</span></em></p>What rights and legal protections will EU citizens in the UK and Britons in the EU have when they become ‘third country nationals’ after Brexit?Egle Dagilyte, Senior Lecturer in Law, Anglia Ruskin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1037092018-10-02T14:47:05Z2018-10-02T14:47:05ZHow the special migration rules in free trade deals work<figure><img src="https://images.theconversation.com/files/238924/original/file-20181002-85605-1bo4am0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Special immigration provisions are increasingly being written into free trade deals. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/visa-application-form-travel-immigration-document-1104710696?src=4zT64h6JqNoifpy8qS219g-1-16">One photo/Shutterstock</a></span></figcaption></figure><p>EU migrants will be treated the same for immigration purposes after Brexit as migrants from elsewhere in the world, according to a <a href="https://www.bbc.co.uk/news/uk-politics-45714413">new UK immigration strategy</a> outlined by the prime minister, Theresa May. But she has admitted that any free trade deal struck between the UK and EU after Brexit could include special provisions on the mobility of people. </p>
<p>Ultimately, migration could be included in a section of any new trade deal between the UK and the EU. This is something the Migration Advisory Committee noted in a wide-ranging <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/741926/Final_EEA_report.PDF">report</a> on EU migration to the UK, published in September. </p>
<p>Most trade today takes place under the governance of regional and bilateral free trade agreements between two countries, or groups of countries. Increasingly this covers provisions on services as well as the movement of goods – and it can also include special rules on immigration too. </p>
<p>The World Trade Organisation (WTO) supports different means for the liberalisation of services, based on its <a href="https://www.wto.org/english/tratop_e/serv_e/gatsqa_e.htm">General Agreement on Trade in Services</a>. Part of this framework, known as [Mode 4], refers to the movement of people providing services across borders. </p>
<p>Such movement of people to provide services refers to two broad categories: key employees transferred on an intra-company basis, including managers and technical staff; and business visitors or independent foreign professionals in selected sectors. However, the vast majority of “Mode 4” movements remain restricted to short-term visits, and do not allow for gainful employment in the host country. It is also telling that only some 1-2% of all trade in 2005 was accounted for by the “Mode 4” services trade, according to <a href="https://www.wto.org/english/tratop_e/serv_e/mouvement_persons_e/mouvement_persons_e.htm">WTO statistics</a>.</p>
<p>The <a href="http://rtais.wto.org/UI/publicsummarytable.aspx">WTO</a> records 288 physical free trade areas (FTAs), 145 of which include specific provisions on free movement of services. Only about 40 of these agreements allow for further preferences with respect to mobility of people as service providers. Overall, this means that the liberalisation of free trade has not liberalised the free movement of people around the world. </p>
<p>In most FTAs that include immigration provisions there are time restrictions on how long a person can stay in the country, as as well as limits to labour market access. These FTAs usually impose additional requirements for citizens who want to take advantage of the mobility provisions. For example, some free trade deals exclude citizens from each country from working in certain sectors. </p>
<h2>Visa exemptions</h2>
<p>According to <a href="http://unesdoc.unesco.org/images/0026/002606/260669e.pdf">UNESCO</a> visa arrangements under FTAs can include full visa exemptions, temporary visa exemptions, visa exemptions for specific activities, or agreements regarding entry rights or visa-free travel. </p>
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<img alt="" src="https://images.theconversation.com/files/238934/original/file-20181002-85611-1q5gxmv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/238934/original/file-20181002-85611-1q5gxmv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=384&fit=crop&dpr=1 600w, https://images.theconversation.com/files/238934/original/file-20181002-85611-1q5gxmv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=384&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/238934/original/file-20181002-85611-1q5gxmv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=384&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/238934/original/file-20181002-85611-1q5gxmv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=483&fit=crop&dpr=1 754w, https://images.theconversation.com/files/238934/original/file-20181002-85611-1q5gxmv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=483&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/238934/original/file-20181002-85611-1q5gxmv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=483&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Many of the mobility provisions within free trade deals are aimed at business people.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-uk-7-september-2015-canary-314796533?src=hhhrXA_5uPWvMSI9AVqRxg-1-13">IR Stone/Shutterstock</a></span>
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<p>A key example of a regime with full visa exemptions is the European Union’s single market, which provides free movement of member states’ citizens in its territory. This means that somebody from an EU country, such as Italy, could seek to live anywhere else in the EU, such as Ireland or the Netherlands. They are expected to gain employment within three months of their arrival as a condition of their right to remain, although this has been difficult to monitor in the EU. Other agreements that facilitate visa-free travel, which also include a common identification system with shared passport symbols, are those of <a href="http://www.ecowas.int/life-in-the-community/education-and-youth/">Economic Community of West African States</a> and the <a href="https://theconversation.com/how-the-free-movement-of-people-could-benefit-africa-92057">African Union</a>. </p>
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<p>An example from South America is the Common Market of the South (known as MERCOSUR) between Argentina, Brazil, Paraguay, Uruguay, and Venezuela. Its “Agreement on Residence for State Party nationals” <a href="http://www.ilo.org/dyn/migpractice/migmain.showPractice?p_lang=en&p_practice_id=187">envisages</a> that all MERCOSUR citizens will be granted an automatic visa and the freedom to live and work in another member state. But in reality, visa exemptions apply just to artists, scientists, sports people, journalists, specialised professions, and technicians for up to 90 days.</p>
<p>Examples where mobility is restricted to certain categories of people are the North American Free Trade Agreement, or NAFTA. This makes temporary arrangements for the mobility of business visitors, traders and investors, intra-company transferees, or professionals, with different rules applying to Canadian and Mexican citizens in the US. This agreement includes the “professional visa”, aimed specifically for economic purposes and related to intra-company mobility, professionals and highly skilled people moving on a temporary basis. A new <a href="https://theconversation.com/how-is-new-nafta-different-a-trade-expert-explains-104212">deal struck</a> in late September between the US, Canada and Mexico will not change these provisions. </p>
<p>The bilateral agreement struck in 2017 between the EU and Canada, known as <a href="http://ec.europa.eu/trade/policy/in-focus/ceta/ceta-chapter-by-chapter/">CETA</a>, also has immigration provisions for certain people – and has become a reference point in the Brexit debate. </p>
<p>A Canada-type deal has been proposed in the UK as a model for a liberal regime that governs the types of mobility allowed between country partners. Yet, this is another example where freedom of movement is linked to business services and professionals, built around a platform that promotes the mutual recognition of qualifications. The stated objective of the agreement, set out in chapter ten, is to allow for people mobility which “facilitates trade in services and investment by allowing temporary entry and stay to natural persons for business purposes and by ensuring transparency in the process”.</p>
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<a href="https://theconversation.com/chequers-vs-canada-plus-brexit-trade-plans-seven-key-differences-explained-103969">Chequers vs Canada-plus Brexit trade plans – seven key differences explained</a>
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<p>Overall, FTAs can provide for various levels of access to the labour market, but the emphasis remains on “trade”, rather than migration liberalisation. Their purpose remains to liberalise trade, with freedom of movement as a byproduct and free migration almost never an end in itself.</p><img src="https://counter.theconversation.com/content/103709/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Liliana Harding does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There is a gap between free trade and free migration.Liliana Harding, Senior Lecturer in Economics, University of East AngliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/963872018-06-06T12:27:15Z2018-06-06T12:27:15ZRights for same-sex married couples to move around the EU confirmed in landmark ruling<figure><img src="https://images.theconversation.com/files/221974/original/file-20180606-137298-yvw0yy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/home">from www.shutterstock.com</a></span></figcaption></figure><p>In an historic <a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=202542&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=392216">ruling</a> for the rights of same-sex couples, the EU Court of Justice (ECJ) has held that for the purposes of EU free movement law, the notion of a “spouse” includes the same-sex spouse of an EU citizen. </p>
<p>The case was referred to the ECJ from the Romanian Constitutional Court which was confronted with a dispute between a couple, Adrian Coman, a Romanian national, and Claibourn Hamilton, a US national, and the Romanian authorities. After living for a number of years in Belgium, where the couple married, Coman wished to return to Romania with his spouse. But Hamilton was refused the right to reside in Romania as Coman’s husband, on the grounds that Romania does not recognise same-sex marriage. </p>
<p>The case was referred to the ECJ as <a href="https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF">EU law</a> requires member states to grant a right of residence to the “spouse” of an EU citizen who moves there in exercise of EU free movement rights. The ECJ was asked whether the term “spouse” should include same-sex spouses – and it ruled that it should. </p>
<p>As the ECJ underlined, EU member states still remain free to decide whether or not to allow marriage for persons of the same sex in their territory. But in situations where an EU citizen, who has been living in another EU member state, wants to return to their country of origin, their same-sex marriage must now be recognised under EU law. The same law applies for EU citizens moving to any other EU member state – so for example if Coman had wanted to move to Poland with his husband, he would be allowed to.</p>
<h2>Rights clarified</h2>
<p>The ruling provides much-needed clarity and legal certainty for same-sex couples who get married in an EU member state. It makes clear that wherever they wish to move in the EU, their union should be recognised as a marriage for the purposes of family reunion, irrespective of whether the host state allows same-sex couples to formalise their relationship in its territory. </p>
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<p>Currently, 15 out of the EU’s 28 member states do not permit same-sex marriage, including Romania, Hungary, Poland and Slovakia. The court had comforting words for these countries, that its ruling “does not require” them to provide for “the institution of marriage between persons of the same sex”. But the ruling appears to have the potential of initiating a process of “voluntary harmonisation” whereby all member states will realise they need to recognise – and make provision – for same-sex spouses, even in situations when this is not required by EU law. The ruling offers an interpretation of “spouse” for the purposes solely of family reunification in cross-border situations. However, once a member state accepts that a same-sex married couple are “spouses” for the purposes of EU family reunification – and are therefore entitled to a right of residence in its territory – it would appear anomalous to strip them of this status for other legal purposes, regardless of whether those situations fall within the scope of EU law. This could include rights regarding taxation, inheritance, pensions, hospital visitation rights, childbearing and childrearing. </p>
<h2>Not open to ‘marriage tourism’</h2>
<p>At the same time, the court repeatedly stressed in its ruling, that an EU citizen can only claim family reunification rights upon moving countries if they have taken up genuine residence in the territory of another member state – and during that time have established and strengthened their family life. In previous <a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=149082&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=388877">case law</a>, the court clarified that such genuine residence can only exist when the EU citizen has settled in another member state for more than three months. </p>
<p>This should put to rest fears that the ruling can lead to “marriage tourism”. It ensures that EU citizens living in a member state that does not permit same-sex marriage cannot move to another member state simply in order to marry and then return to the first state claiming the right to be recognised as a married couple. They will need to show that they have taken up genuine residence in that member state and during that period they established and strengthened their family life.</p>
<p>The court should be applauded for its audacious approach, in a case which involved an admittedly delicate matter.</p>
<p>The ruling, nonetheless, leaves a question unanswered. It emphasises that the obligation imposed on member states is to recognise same-sex marriages lawfully concluded in another EU country. The marriage of Coman and Hamilton satisfied this requirement because it took place in Belgium. Would they be in the same position if their marriage was concluded in, say, the US? This is a question that will have to wait for another ECJ ruling.</p><img src="https://counter.theconversation.com/content/96387/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alina Tryfonidou does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The European Court of Justice has ruled that EU member states must recognise same-sex marriages concluded elsewhere in the EU, even if they don’t allow same-sex marriage.Alina Tryfonidou, Associate Professor in EU Law, University of ReadingLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/818602017-08-01T09:21:41Z2017-08-01T09:21:41ZBrexit and the sin of originalism: the past should not define the future<p>An alleged <a href="https://www.ft.com/content/a5a6381e-6d3e-11e7-bfeb-33fe0c5b7eaa?mhq5j=e1">rift</a> has emerged between Philip Hammond, the British chancellor of the exchequer, and his cabinet colleague Liam Fox, the international trade secretary, over a key Brexit issue. While Hammond seems to think European citizens could still be allowed to move freely into the UK during the transition period between the end of Brexit negotiations and the UK’s full separation from the EU, Fox thinks not. </p>
<p>Downing Street has sought to clarify the position by stating that free movement will end in 2019 – though it remains unclear whether that’s possible. </p>
<p>The spat reveals a deeper philosophical conflict over how Brexit policy should be conducted by the government. For some ministers, a successful Brexit is one that limits negative consequences for the UK economy. For others, like Fox, it’s more important to “keep faith” with the referendum decision itself.</p>
<p>The issue of free movement is one dramatisation of the conflict. Another is what role to give to the European Court of Justice in the future Brexit settlement. This decision may also fall victim to an imperative to hold true to one of the defining themes of the Leave campaign. Prime Minister Theresa May herself echoed the mantras of that campaign in her <a href="https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech">Lancaster House speech</a> in January when she declared “we will take back control over our laws and bring an end to the jurisdiction of the European Court of Justice in Britain”.</p>
<p>As a means of charting a course for the UK out of the EU, Fox and the prime minister are guilty of the sin of “originalism”.</p>
<p>“Originalism” is a concept that often crops up in the US. It refers to a belief that the Supreme Court’s sole function is to keep faith with the literal text of the constitution as it was written. The meaning of the constitution in 2017 should be the same as that intended by the original framers of the constitution back in 1787.</p>
<p>It’s an approach associated with a conservative right in the US. The aim is to ensure that an unelected judiciary does not extend legal rights such as access to abortion under the guise of interpreting the text of the constitution in light of changing times and circumstances.</p>
<p>Similarly, debates within the Christian church about recognising same-sex relationships get mired in a conflict between those who weaponise the text of the Bible as an unyielding and unchanged set of rules and others for whom the text is the beginning of a process of constant discovery of what it means to follow a particular faith.</p>
<h2>Brexit orginalism</h2>
<p>Now originalism is being practised as part of the Brexit debate. The difference, though, is that the Brexit schism is not based on the contested reading of a particular historical text. Instead, it centres on the interpretation of a historical event – the referendum held in June 2016. </p>
<p>Fox and various other figures have adopted the view that the government should not only implement the referendum result but also to “keep faith” with the reasons and rationales which apparently led voters to reject continuing EU membership. </p>
<p>But originalism is selective in its readings of the past. That the US constitution allowed its citizens not just to keep and bear arms but also keep slaves gets forgotten when it comes to trying to talk sense about gun control. The Bible’s list of abominations is deployed to deplore homosexuality, yet practices such as tattoos, long hair and eating seafood slip through the net.</p>
<p>In the context of Brexit, Fox picks control over borders as his article of faith. Meanwhile, he conveniently ignores that many voters also wanted Brexit to be a means of taking back control over trade.</p>
<p>In the week that <a href="https://www.theguardian.com/world/2017/jul/08/theresa-may-in-bid-to-boost-post-brexit-trade-with-g20-meetings">President Trump signalled</a> that the US and the UK might do a quick trade deal, Fox seemed remarkably relaxed about the idea that the UK might be forced to accept <a href="https://www.theguardian.com/commentisfree/2017/jul/25/chlorinated-chicken-trade-britain-us-food-standards-globalisation">chlorine-washed chickens</a> as part of a post-Brexit trade deal. Some Leave voters may have wanted the UK to have greater freedom to strike its own trade deals including with the US, but others were anxious about the effects of an increasingly globalised economy on their employment prospects. Fox’s originalism is just as selective as any other form.</p>
<p>Originalism is also an abandonment of judgement and responsibility. Politicians – government ministers and the Labour opposition – are behaving as if they have no choice but to give effect to a mandate enshrined and encoded in the referendum result regardless of whether there is any clarity as to the original intent of voters or of the consequences of implementing such an intention.</p>
<p>It’s time for politicians to drop the originalist pretence of keeping faith with the country. They should instead do the one thing the British system of parliamentary democracy is supposed to do – empower the representatives of the people to make decisions and to be accountable for them.</p>
<p>Brexit is a choice made in time and through time. It is a process that began with the referendum but doesn’t have to end there. Instead the prime minister faces a choice. Either she allows Brexit to be defined by an originalist and selective interpretation of the June 2016 referendum or she takes the June 2017 election as an instruction to govern in the country’s best interests. She must choose whether to be defined by the past or to define the future.</p><img src="https://counter.theconversation.com/content/81860/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kenneth Armstrong is the author of 'Brexit Time: Leaving the EU – Why, How and When?' (Cambridge University Press).</span></em></p>Liam Fox insists on keeping faith with the referendum decision. But that is preventing ministers from adapting to an evolving situation.Kenneth Armstrong, Professor of European Law and Director of the Centre for European Legal Studies, University of CambridgeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/805622017-07-11T08:58:02Z2017-07-11T08:58:02ZWhat’s now at stake for UK citizens living in the rest of the EU<figure><img src="https://images.theconversation.com/files/177536/original/file-20170710-17622-1ukdumf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There are over 300,000 British nationals living in Spain. </span> <span class="attribution"><span class="source">Kekyalyaynen / Shutterstock.com</span></span></figcaption></figure><p>Self-styled champion of all EU citizens, the European Parliament has warned that it may veto the UK’s withdrawal agreement from the EU. A public letter penned on July 9 by its lead Brexit negotiator Guy Verhofstadt and a group of cross-party MEPs <a href="https://www.theguardian.com/commentisfree/2017/jul/09/brexit-offer-eu-citzens-veto-british-porposal-european-parliament">stated</a>:</p>
<blockquote>
<p>The European Union has a common mission to extend, enhance and expand rights, not reduce them … The European Parliament will reserve its right to reject any agreement that treats EU citizens, regardless of their nationality, less favourably than they are at present.</p>
</blockquote>
<p>Despite arguments that a unilateral offer to protect the rights of EU citizens would constitute both a gesture of goodwill and a politically astute move, on June 26 the UK government elected to make an <a href="https://www.gov.uk/government/publications/safeguarding-the-position-of-eu-citizens-in-the-uk-and-uk-nationals-in-the-eu">offer</a> conditional on reciprocity. The details of what this means for EU citizens living in the UK after Brexit are vague. The position for UK nationals living in the rest of the EU is even more so.</p>
<p>The UK government’s <a href="https://www.gov.uk/government/publications/safeguarding-the-position-of-eu-citizens-in-the-uk-and-uk-nationals-in-the-eu">policy paper</a> on the issue largely focuses on what is on offer for EU citizens in the UK. <a href="http://eulawanalysis.blogspot.co.uk/2017/07/all-of-life-is-changed-impact-of-brexit.html">Our conclusions</a> on how this translates to UK nationals elsewhere in the EU are derived from what reciprocating the UK’s offer would mean.</p>
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<h2>What the UK is offering</h2>
<p>On a handful of issues, the UK’s proposal provides some detail as to what UK nationals living in the other 27 EU member states (EU-27) can expect. For example, the <a href="https://www.theguardian.com/politics/2017/jan/27/fewer-britons-in-rest-of-europe-than-previously-thought-ons-research">21% who are over 65-years-old</a> will be relieved to learn that it has committed to continuing to “export and uprate the UK state pension within the EU”. This implies that their pensions will not be frozen, but will be increased in line with pension increases in the UK. </p>
<p>It also intends to maintain its position on child benefit, meaning UK citizens will still be able to claim the child benefits to which they are entitled when they live abroad. For those UK citizens undertaking education in another EU country, their right to remain in the country will apply until course completion. Those with residence rights will also have the same access to tuition fees and any maintenance grants as the host country’s nationals.</p>
<p>Healthcare poses greater complexities. The UK proposes a new arrangement “akin to the EHIC [European Health Insurance Card] scheme”, which <a href="http://www.nhs.uk/NHSEngland/Healthcareabroad/EHIC/Pages/about-the-ehic.aspx">entitles</a> those covered by their home NHS to medical treatment in another EU country. But given that all EU and non-EU states currently party to the EHIC scheme also have some form of free movement agreement, this suggestion must be in the category of having your cake and eating it.</p>
<p>The UK’s proposal does not, however, address numerous other issues, including equal access to housing, equal tax benefits, and whether UK citizens will be allowed to reside in an EU-27 country after Brexit.</p>
<h2>What the logic of reciprocity means</h2>
<p>The UK’s proposal rejects the “acquired rights” approach of <a href="https://ec.europa.eu/commission/sites/beta-political/files/essential-principles-citizens-rights_en_0.pdf">the EU stance</a>. Instead, the UK government ultimately seeks to align the status and processing of EU nationals with its national immigration law. This will follow a cut-off date and grace period (as yet unspecified) after which EU citizens living in the UK will be subject to the same rules as non-EU citizens. </p>
<p>Disputes would be settled through national courts without any protection from a supranational authority, such as the EU’s Court of Justice. It would be significantly more difficult for EU citizens to enforce their residence and other rights than at present. </p>
<p>If the EU-27 were to reciprocate the offer, UK citizens in the EU-27 would also become subject to their host country’s immigration laws. This means they will have what’s called “third country national” (TCN) status. This carries rights in EU law. </p>
<p>The EU’s <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32003L0109&from=en">Long-Term Residence (LTR) Directive</a> provides legal protection to some TCNs and governs the scheme by which they can acquire long-term residence status. Under the directive, this status must be granted where certain conditions are met. </p>
<p>Of course, national authorities retain some discretion and some residence matters, such as healthcare entitlements, may be devolved to regional or local level. TCNs with long-term residence status must in many respects be treated equally to nationals by their host country. For example, they have equal access to employment, self-employment, recognition of their qualifications, tax benefits and pensions. </p>
<p>Long-term residency has been described as a “<a href="http://research-information.bristol.ac.uk/en/publications/the-longterm-residence-status-as-a-subsidiary-form-of-eu-citizenship(4905f8ac-a068-4bbd-913b-60e862495fb5)/export.html">subsidiary form of EU citizenship</a>”, but it does not have all the perks of the full version. States can confine social assistance for long-term residents to core benefits, such as care for pregnant women, and can restrict some access to employment. </p>
<h2>Comparisons with the EU proposal</h2>
<p>The EU proposal is a better offer for UK citizens resident in the EU-27 than long-term residence status would be. That is not a surprise – the EU wants to protect its 3.2m citizens in the UK, and offers something more than TCN status to the <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/articles/whatinformationisthereonbritishmigrantslivingineurope/jan2017">1.2m</a> UK citizens in the rest of the EU. The EU proposal includes additional protections exclusive to EU citizens, such as social security coordination rules and supplementary rights for the free movement of workers.</p>
<p>Under either the EU proposal or as long-term residents, UK nationals in the EU-27 come out relatively unscathed. Nevertheless, while the gap between these two options is noticeable, it is far from the <a href="http://eulawanalysis.blogspot.co.uk/2017/07/all-of-life-is-changed-impact-of-brexit.html">chasm</a> between EU citizens’ current position in the UK and the UK’s proposals for their post-Brexit future. </p>
<p>If the polls are to be believed and <a href="https://www.theguardian.com/politics/2017/jul/01/poll-european-eu-rights-brexit">60%</a> of UK nationals want to keep their EU citizenship, the UK government has a greater stake in this than its comparably lukewarm proposals suggest. And the stake is greater still if the cost is “crashing out” of the EU without a withdrawal agreement at all.</p><img src="https://counter.theconversation.com/content/80562/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tamara Hervey receives funding from the Economic and Social Research Council (Brexit Priority Grant ES/R002053/1). She has previously received funding from the European Commission.
She was a member of the Advisory Board of 'Healthier In', a campaign group in the EU referendum debate.
Sarah McCloskey is working as a research assistant with Tamara on a project about the legal implications of Brexit.
</span></em></p>Now the UK and the EU have made their opening offers on citizens’ rights, an EU law expert examines what this means for UK nationals living abroad.Tamara Hervey, Jean Monnet Professor of European Union Law, University of SheffieldLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/805182017-07-07T15:50:47Z2017-07-07T15:50:47ZEuropean law expert: UK has sparked race to the bottom that will strip citizens of their rights<p>Now that both the <a href="https://www.gov.uk/government/publications/safeguarding-the-position-of-eu-citizens-in-the-uk-and-uk-nationals-in-the-eu">UK government</a> and the <a href="https://ec.europa.eu/commission/sites/beta-political/files/citizens-rights-essential-principles-draft-position-paper_en.pdf">EU</a> have set out their proposals for citizens’ rights after Brexit, it’s clear that both take the concept of reciprocity as a starting point.</p>
<p>But the EU and the UK have a profoundly different understanding of what reciprocity means. While the EU approaches reciprocity as a moral principle and legal guarantee in its offer, the UK merely uses it as a technique to delay making <a href="https://www.theguardian.com/politics/2017/feb/08/mps-reject-brexit-bill-amendment-to-protect-eu-citizens-in-uk">commitments</a> and with which to make <a href="https://www.ft.com/content/dbd24ba4-579e-11e7-9fed-c19e2700005f?mhq5j=e3">threats</a> that its offer is dependent on the EU doing the same. But because the substance and legal guarantees of the two proposals is very different, the impact on people’s lives would be too. </p>
<p>There are good reasons to argue that unilaterally guaranteeing citizens’ rights is not actually the most appropriate solution for Brexit negotiations. During the recent UK election campaign, Labour <a href="http://www.bbc.com/news/av/uk-politics-39703151/labour-to-guarantee-rights-of-eu-citizens-in-uk">offered</a> to unilaterally guarantee the rights of EU citizens living in the UK. This seems morally the right thing to do as it would avoid making these citizens a <a href="https://theconversation.com/how-to-protect-4-5m-people-from-becoming-brexit-bargaining-chips-79643">bargaining chip</a> in Brexit negotiations. But at the same time, it would make UK citizens living elsewhere in the EU more exposed to trade-offs between their rights and other points under negotiation. </p>
<p>Unilateral solutions also fail to recognise the cross-border dimension of the lives of the individuals involved, both EU and British citizens. EU citizenship provides a <a href="https://theconversation.com/what-the-eus-rules-on-free-movement-allow-all-its-citizens-to-do-62186">comprehensive set of rights</a>, such as the recognition of qualifications, healthcare co-ordination between member states and rules to transfer entitlements, such as pension contributions, to another country. Such rules require international solutions and cannot simply be resolved by unilateral action from one party at the negotiating table. </p>
<p>Even offering British citizenship to all EU citizens in the UK, as former Greek finance minister Yanis Varoufakis has <a href="https://www.politicshome.com/news/europe/eu-policy-agenda/brexit/house/house-magazine/86047/yanis-varoufakis-only-theresa-may-can">suggested</a>, is not an appropriate solution as it would not account for such cross-border issues. <a href="https://theconversation.com/dual-nationality-and-the-hurdles-facing-britons-who-want-to-keep-eu-citizenship-after-brexit-74470">Not all</a> EU countries allow dual citizenship and some people may have to give up their citizenship of origin if they want to take British citizenship. </p>
<h2>The case for reciprocity</h2>
<p>The concept of reciprocity is therefore a more appropriate guide to dealing with the rights of the 3.3m EU citizens in the UK and 1.2m British citizens in the EU after Brexit. </p>
<p>There is a strong moral argument for reciprocity. Both British citizens in the EU and EU citizens in the UK have built up their lives in a foreign country in the legitimate expectation that EU citizenship would protect them. They were never asked to obtain visas, were never told their stay would be temporary, and (with the exception of national voting rights) were treated in pretty much the same way as nationals. They deserve to be treated equally in the opportunity to retain the life and rights they have legitimately acquired. </p>
<p>The EU has taken reciprocity seriously as a moral starting point. It has <a href="https://ec.europa.eu/commission/sites/beta-political/files/citizens-rights-essential-principles-draft-position-paper_en.pdf">offered</a> that all the rights of both EU citizens in the UK and the British in the rest of the EU will be protected for life. It wants to ensure this via an international agreement between the UK and EU that sets out in detail citizens’ current rights for life, to be protected by judicial control of the Court of Justice of the EU. </p>
<p>Under such an international agreement, which can be part of the UK’s Article 50 withdrawal agreement from the EU, or be a <a href="https://theconversation.com/how-to-protect-4-5m-people-from-becoming-brexit-bargaining-chips-79643">separate citizens’ agreement</a>, each set of citizens acts as a safeguard for the rights of the other. Without such an international agreement, these citizens lose each other as safeguards and will be at the whim of national governments, which will undoubtedly undermine the rights on which they have legitimately built up their lives. </p>
<p>The EU might be willing to compromise by accepting an international court other than the Court of Justice to control the agreement, but legally safeguarding reciprocity at an international level <a href="https://www.theguardian.com/politics/2017/apr/20/european-parliament-will-welcome-britain-back-if-voters-veto-brexit">is a strict condition for the EU</a> in its Brexit negotiating position. As Antonio Tajani, president of the European parliament, said on a recent trip to the UK: “For us, the agreement is [to have the same rights] as today [and] yesterday, tomorrow … For us, it is a priority and it is a red line.”</p>
<h2>Moral and legal principle</h2>
<p>In contrast, the UK government’s rhetoric fails to recognise reciprocity as a moral and legal principle. Its <a href="https://www.theguardian.com/commentisfree/2017/jun/27/theresa-may-offer-generous-eu-citizens-tories-rights-uk">offer</a> is far less generous than the EU’s. Unlike the EU, the UK does not propose to guarantee the rights of EU citizens for life. It is ambiguous on who can retain them, and it undermines some existing rights, such as the ability for EU citizens to bring a family member to live with them in the UK. </p>
<p>Its <a href="https://www.gov.uk/government/publications/safeguarding-the-position-of-eu-citizens-in-the-uk-and-uk-nationals-in-the-eu">proposal</a> on citizens’ rights is actually unilateral: it intends to act unilaterally on the residence status of EU citizens by turning them into immigrants under general UK immigration law. This implies that EU citizens living in the UK will lose rights that were specific to them.</p>
<p>If the EU “reciprocates” on this offer, it would mean each of the 27 individual member states would deal with the residence requirements for the British living in their countries. This would leave the British in the rest of the EU at the mercy of 27 different and changing immigration laws on which the UK would no longer have any leverage. </p>
<p>So, instead of accepting reciprocity as a moral principle and legal guarantee, the UK is turning it into a race to the bottom at the expense of both EU citizens in the UK and its own citizens in the EU.</p><img src="https://counter.theconversation.com/content/80518/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stijn Smismans receives funding from the European Research Council for research on European policy-making, but that research is not directly related to the topic of this article. </span></em></p>The EU sees reciprocity on citizens rights as a moral principle and legal guarantee. The UK sees it as a negotiating technique.Stijn Smismans, Professor of European Law, Director of the Centre for European Law and Governance., Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/698352016-12-19T10:13:55Z2016-12-19T10:13:55ZDo we all have a right to cross borders?<p>In early December, British foreign secretary Boris Johnson was <a href="https://www.theguardian.com/politics/2016/dec/01/boris-johnson-denies-privately-supporting-principle-of-free-movement">forced</a> to deny <a href="https://www.theguardian.com/politics/2016/nov/30/boris-johnson-backed-free-movement-in-private-talks-ambassadors-say">reports</a> that he’d told a group of ambassadors he was personally in favour of the free movement of people across the European Union. </p>
<p>Given his previous negative public statements on the issue, reports of his private support for the principle, which allows all EU citizens to move freely around the bloc, came as a surprise. Speaking to a Czech newspaper in mid-November, he had <a href="https://www.theguardian.com/politics/2016/nov/15/britain-probably-leaving-eu-customs-union-says-boris-johnson">rubbished</a> the idea that free movement is a central principle of the EU and denied that “every human being has some fundamental God-given right to move wherever they want”. </p>
<p>Many were quick to point out that Johnson was confused on a matter of law. The EU parliament’s lead Brexit negotiator Guy Verhofstadt <a href="https://twitter.com/GuyVerhofstadt/status/798589132264116224">quipped</a> on Twitter that he would bring a copy of the <a href="http://www.gleichstellung.uni-freiburg.de/dokumente/treaty-of-rome">1957 Treaty of Rome</a>, the treaty establishing the European Economic Community (later the EU), to the negotiations to correct Johnson. Article 3 of the treaty proposes the abolition of “obstacles to freedom of movement” between member states.</p>
<p>Yet while Johnson’s <a href="https://www.theguardian.com/commentisfree/2016/jun/25/boris-johnson-michael-gove-eu-liars">shaky grip</a> of the facts about the EU should not surprise us. His comments inadvertently touch upon a fundamental moral issue that often gets overlooked in debates around immigration: whether there is a fundamental human right to move. </p>
<h2>The right to immigrate</h2>
<p>Talk of building walls, taking back control and “legitimate concerns” over immigration implicitly assume that states have a right to exclude who they wish. Yet among moral and political philosophers there is no consensus on the legitimacy of border controls and <a href="http://blogs.lse.ac.uk/lsereviewofbooks/2016/04/22/book-review-migration-in-political-theory-the-ethics-of-movement-and-membership-edited-by-sarah-fine-and-lea-ypi/">important arguments</a> have been made for a human right to immigrate.</p>
<p>Those who take this position are not necessarily committed to an anarchist perspective that rejects the very idea of states – though free movement was an important demand for radical <a href="http://www.hup.harvard.edu/catalog.php?isbn=9780674006713">philosophers</a> linked to what’s known as the “alter-globalisation” movement. Instead, some <a href="http://crookedtimber.org/2014/05/26/book-symposium-on-joseph-carenss-the-ethics-of-immigration/">argue</a> for freedom of movement based on the logical and consistent extension of mainstream democratic values.</p>
<p>Under existing international human rights law, Article 13.1 of the <a href="http://www.un.org/en/universal-declaration-human-rights/">Universal Declaration of Human Rights</a> contains a right to freedom of movement for individuals within states, but there is no such right to freedom of movement between states.</p>
<p>We tend to think of the right to free movement within a state as an essential freedom. If the government banned you from visiting and settling in certain parts of the country you would rightly feel outraged. The government would be denying you the choice of where to live and study, who you can form relationships with, who you can associate with on a religious or political basis, and it would be denying you a range of important economic opportunities. These are fundamental choices that affect how our lives are lived.</p>
<p>But notice that these very same considerations also apply to freedom of movement across borders. In today’s globalised world, restricting your right to move across borders is not so very different from confining you to the boundaries of Yorkshire, say, or Seattle.</p>
<h2>Citizenship in an age of growing inequality</h2>
<p>Perhaps the strongest argument, however, concerns the brute injustice of the world’s current border regime. Those born into prosperous states enjoy life prospects virtually unknown to would-be migrants in poorer parts of the world who are condemned to lives of poverty and destitution.</p>
<p>This fact seems morally arbitrary if we accept the basic equality of human beings. In the words of <a href="http://philosophyfaculty.ucsd.edu/faculty/rarneson/phil267fa12/aliens%20and%20citizens.pdf">the philosopher</a> Joseph Carens, citizenship in Western liberal democracies is: “The modern equivalent of feudal privilege … an inherited status that greatly enhances one’s life chances.”</p>
<p>Global inequality has been <a href="https://www.theguardian.com/global-development-professionals-network/2016/apr/08/global-inequality-may-be-much-worse-than-we-think?CMP=share_btn_tw">increasing dramatically</a> over the past few decades. According to World Bank <a href="https://www.theguardian.com/global-development-professionals-network/2016/apr/08/global-inequality-may-be-much-worse-than-we-think?CMP=share_btn_tw">figures</a>, American citizens were 72 times richer than sub-Saharan Africans and 80 times richer than south Asians by the year 2000. </p>
<p>The argument for a right to move is strengthened further when we consider how wealthy, Western states have profited from colonial relationships with many of the very same countries migrants are fleeing. These same states are among those who now set the rules of the global economy to their own advantage thanks to power imbalances in the World Trade Organisation, International Monetary Fund and World Bank.</p>
<p><a href="http://www.unhcr.org/1951-refugee-convention.html">Refugee law</a> currently affords no protections to those escaping life-threatening poverty since it limits the definition of “refugee” to those fleeing persecution.</p>
<p>In these circumstances, the “illegal” crossing of borders, which so preoccupies the newly-elected Donald Trump and right-wing populists across Europe, might actually be considered a justifiable form of resistance and civil disobedience against the economic injustice of the global order.</p>
<h2>Is a right to move plausible?</h2>
<p>Many will be tempted to dismiss these arguments as the utopian fantasies of philosophers which fly in the face of basic common sense. Or they might point to the unacceptable level of cost and disruption which they predict will be the consequence of opening borders.</p>
<p>Yet we should reflect on the fact that many previous injustices, such as the institution of slavery, seemed like common sense at the time. The arguments given back then <a href="http://www.discoveringbristol.org.uk/slavery/against-slavery/campaign-against-slave-trade/debate/against-abolition/">against abolition</a> – based on its likely cost and disruption to slave-owning societies – seem perverse and wholly unconvincing today.</p>
<p>A more principled argument for restrictive border controls could be mounted on the basis of a state’s right to self-determination or on the purported rights of a nation to preserve its cultural identity. Some philosophers, such as the British political theorist David Miller, have <a href="http://blogs.lse.ac.uk/lsereviewofbooks/2016/09/06/book-review-strangers-in-our-midst-the-political-philosophy-of-immigration-by-david-miller/">attempted</a> arguments along these lines.</p>
<p>But I think these philosophical arguments against a right to move are ultimately unconvincing. They fail to give sufficient weight to the essential interest that all of us have in being able to live, love, study, work and settle without being restricted by the coercive and often violent imposition of borders. In the context of massive inequality, the current border regime is even more unjustified, akin to the arbitrary and anti-human character of a global caste system. </p>
<p>Those who believe in more open borders are currently on the political defensive in Britain and elsewhere. With much of the debate framed in narrow terms around migrant “skills” and “economic contributions”, it is important not to lose sight of immigration as a moral issue.</p>
<p>If we approach it in this way, we will surely conclude that the current border regime is unjust and indefensible.</p><img src="https://counter.theconversation.com/content/69835/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Guy Aitchison currently receives funding from the Irish Research Council for a project entitled 'Citizenship at the margins: the case of migrant activism'. </span></em></p>In an unequal, globalised world, should we be able to move between states as freely as we can within them?Guy Aitchison, Post-Doctoral Researcher, School of Politics and International Relations, University College DublinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/697502016-12-07T11:44:14Z2016-12-07T11:44:14ZEurope has never liked borders – and it won’t be confined by them now<figure><img src="https://images.theconversation.com/files/148313/original/image-20161201-25674-aoas7t.jpg?ixlib=rb-1.1.0&rect=25%2C560%2C2364%2C1494&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Titian's Rape of Europa.</span> <span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Europa_(mythology)#/media/File:Tizian_085.jpg">Wikipedia</a></span></figcaption></figure><p>The history of Europe begins with a crossing over the Mediterranean – and not a voluntary one. It begins, in fact, with kidnapping, rape, forced exile, refuge, and resettlement. </p>
<p>Europa, a Phoenician princess, is forcefully removed from the shores of North Africa to Crete by the most powerful of Greek gods, Zeus. She accepts her fate and begets a new world – the Minoan civilisation – laying the foundations for all ancient Greece, and what will eventually be referred to as the European continent. At least, that’s how Europe begins as far as <a href="http://www.greekmythology.com/Myths/The_Myths/Zeus's_Lovers/Europa/europa.html">mythology</a> is concerned.</p>
<p>This story is more than instructive. It will be repeated in many guises century after century. Its mythological attire will be stripped and replaced by ordinary life, in all its naked drama.</p>
<p>The waters of the Mediterranean are still being crossed today, in search of Europe. The <a href="https://www.moas.eu/">Migrant Offshore Aid Station</a> in Malta has rescued some 25,000 refugees from drowning since it was set up in 2014. Their survival stories, are also tales of brutality, kidnappings, enslavement, rape. They are histories of trauma and perseverance.</p>
<p>This is how Europe begins. And we need to recall this today, more than ever. It would put us all in the same boat, so to speak, emotionally, historically, politically.</p>
<h2>Rootless cosmopolitans</h2>
<p>This history is perhaps one reason why Irish politician <a href="https://books.google.co.uk/books?id=jrVW9W9eiYMC&pg=PA8&lpg=PA8&dq=no+European+can+be+a+complete+exile+in+any+part+of+Europe&source=bl&ots=NAIoyoN0HE&sig=9zcxcnUzPsVsBII8s-ACccOb97A&hl=en&sa=X&ved=0ahUKEwjnwI-4sdPQAhWFExoKHe4CDooQ6AEIHTAA#v=onepage&q=no%20European%20can%20be%20a%20complete%20exile%20in%20any%20part%20of%20Europe&f=false">Edmund Burke</a> was able to write in 1796 that “no European can be a complete exile in any part of Europe”.</p>
<p>Europe is connected by a common history of exile, but also a history of finding home away from home. And that, as it happens, is also how the idea of cosmopolitanism comes about. </p>
<p>Cosmopolitan identity – the highest stage of individualism, according to Swiss historian <a href="https://en.wikisource.org/wiki/The_Civilization_of_the_Renaissance_in_Italy">Jakob Bruckhardt</a> – begins during the Italian Renaissance, serving thereafter as the backdrop against which the story of Europe unfolds and, periodically, unravels. The Italian Renaissance invents artists and scholars who think of themselves as citizens of the world and “exult” in their freedom from being constrained by fixed residence. Dante is unequivocal about this – “My country is the whole world,” he said. As is <a href="https://ebooks.adelaide.edu.au/w/woolf/virginia/w91tg/">Virginia Woolf</a>, who, under the spectre of National Socialism, wrote in 1938: “… as a woman I have no country. As a woman I want no country. As a woman my country is the whole world”.</p>
<p>It is certainly instructive to compare this with the cultural and political nativism of the current British government, which continues to avoid the question of European citizens living on its territory after Brexit – reducing their fate to a bargaining chip in Brexit negotiations, reducing them to mere strangers. </p>
<h2>Impure origins</h2>
<p>If there is one historical “law”, it is the law of movement. Permeability of borders and cultures is inexhaustible, and no walls are going to stop it. Territorial enclosures behind sealed borders are the exception, impurity the rule. And here, it is precisely the nation state that constitutes the apex of such exceptionality. This has always made it grotesque, fanciful, inhospitable and, at its worst, murderous.</p>
<p>The great royal houses and dynasties of Europe’s past, including the Windsors in the UK, who until 1917 were known more accurately as Saxe-Coburg and Gotha, are exemplary specimens of impurity – their power depended on it. For instance, in 1910 the soon-to-be assassinated Archduke Franz Ferdinand, heir to the multi-cultural, Central European Hapsburg empire, listed 2,047 ancestors in his line of descent, of which 1,486 were German, 124 French, 196 Italian, 89 Spanish, 52 Polish, 47 Danish and 20 English, to name just the main ones. A rootless cosmopolitan indeed!</p>
<h2>Rehabilitating mobility</h2>
<p>According to Polish sociologist Zygmunt Bauman, Europe is an <a href="https://books.google.co.uk/books?id=o5NtkTVSYdMC&pg=PA1&lpg=PA1&dq=europe+an+unfinished+adventure&source=bl&ots=WIsTDDcNoS&sig=UUoDfmtI2Bf9GxJ8C_UlzmeO0eg&hl=en&sa=X&ved=0ahUKEwi_0r2Yxd_QAhXsKMAKHUD_BPk4FBDoAQgjMAI#v=onepage&q=europe%20an%20unfinished%20adventure&f=false">“unfinished adventure”</a> that is “allergic to borders”. </p>
<p>For centuries, that allergy took an expansionist, outward form. Europe was a net exporter of its people, under the banner of refuge from religious persecution, escape from poverty, pure curiosity, more sinister colonialism, and empire building, with all the dark and enlightened, lofty and vile forces exchanging leads.</p>
<p>The more authentic meaning of Europe, and perhaps that part of our humanity in the West today, that is quite literally missing in action, is to be found precisely there, dispersed among foreign lands and seas, through the histories of mobility, and certainly not in the staid, parochial, aggressive populism that only breeds politics of petrification and cultural inertia.</p>
<p>It is imperative that we sound a different tone about movement and mobility. Seeking of refuge, even when we are fortunate enough not to be refugees, strictly speaking, is a universal condition – not only the stuff of history, but the location where the search for the hearth of our humanity can begin in earnest.</p><img src="https://counter.theconversation.com/content/69750/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>This article is based on a paper presented at the 'European Union and Disunion' conference, organised by the British Academy.</span></em></p>In history and mythology, Europe always begins somewhere else. That should tell us something about creeping nationalism.Dariusz Gafijczuk, Lecturer in Sociology, Newcastle UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/621862016-07-11T16:22:33Z2016-07-11T16:22:33ZWhat the EU’s rules on free movement allow all its citizens to do<p>Since the UK’s vote in favour of Brexit, the free movement of workers has emerged as the key battleground of Britain’s future negotiations on a new relationship with the European Union. German chancellor Angela Merkel and other EU leaders <a href="http://www.bbc.co.uk/news/world-europe-36659900">made clear</a> that free movement is fundamental to the EU, and that if Britain wants to retain access to the single market it is non-negotiable. </p>
<p>Although the public debate frequently refers to free movement of people, it is really the free movement rights of workers that are given most protection in the EU. And it is this free movement of workers, and their rights, which will be most contested in Brexit negotiations.</p>
<p><a href="http://ec.europa.eu/social/main.jsp?catId=457">Free movement of workers</a> is the third of four freedoms established in the European Economic Community’s founding <a href="http://www.gleichstellung.uni-freiburg.de/dokumente/treaty-of-rome">Treaty of Rome</a> – the others are free movement of capital, goods and services.</p>
<p>The <a href="http://europa.eu/eu-law/decision-making/treaties/pdf/treaty_on_european_union/treaty_on_european_union_en.pdf">1992 Treaty of Maastricht</a> created the legal status of “EU citizen”, and later secondary legislation accorded certain rights to such EU citizens. In practice, these “rights” are limited further by the ways <a href="http://www.bath.ac.uk/ipr/pdf/policy-briefs/eu-comparative.pdf">they are interpreted and applied in member states</a>, including in the UK.</p>
<h2>Free to roam</h2>
<p>An EU national who moves to another EU country to live is exercising their rights to move to, and reside in, that second country as an EU citizen. </p>
<p>EU citizens who have been living in another member state for less than five years must be “self-sufficient”. For the first five years, they may not be “an unreasonable burden” on the welfare system of their country of residence. What counts as an unreasonable burden is defined by each individual country, but usually limits the extent to which EU citizens have “recourse to public funds”. </p>
<p>In the UK, this means that incoming EU citizens do not have a right to receive social support on the grounds of financial need. As a result, income support, housing benefit and a range of other means-tested benefits <a href="https://www.gov.uk/government/news/minimum-earnings-threshold-for-eea-migrants-introduced">are not generally accessible</a> to all EU citizens until they have been in the country for five years. </p>
<p>In practice, though, the entitlements for EU citizens hinges on their employment status and under certain conditions.</p>
<h2>Moving for a new job</h2>
<p>A migrant who moves to another EU country and takes up “genuine and effective” employment is considered to be a worker. Workers, who can either be employed or self-employed, are entitled to move and live in another EU member state without restriction. They are also entitled to equal treatment with nationals in employment and access to social benefits after the first three months. </p>
<p><a href="http://eurightsproject.co.uk/site/resources-and-publications/european-commission-report-concept-of-a-worker-art-45-tfeu/">The UK, along with a number of other member states</a>, has tightened its criteria for what counts as genuine and effective work.</p>
<h2>Losing a job</h2>
<p>If a migrant who moves to the UK is employed for a while and then becomes unemployed, they are either classified as a “jobseeker” or what’s called a “retained worker”. A retained worker must have been employed for at least six months in genuine and effective work. They keep the legal status of worker and are entitled to the same social security and residence rights as nationals. In the UK, a person can keep this intermediary status for up to six months.</p>
<p>Changes to key criteria introduced in 2014-15 <a href="http://www.bath.ac.uk/ipr/pdf/policy-briefs/skills-portability.pdf">restricted EU nationals’ access to social benefits</a> in the UK. If someone’s previous employment does not meet the threshold for genuine and effective work, then they may lose entitlement to unemployment benefit. This may affect their right to reside in a country after six months. In the UK, employment on less than £150 per week is subject to tests for the migrant to prove it is genuine and effective. Employment in a number of short-term jobs, and zero-hours contracts could also jeopardise a migrant’s status as a retained worker.</p>
<p>After six months, a retained worker must also have a “genuine prospect of work” to keep that status. This term is very tightly defined – such as having a job offer letter from an employer. In the context of the UK’s <a href="http://www.bath.ac.uk/ipr/policy-briefs/temporary-agency-work.html">precarious labour market</a>, increasingly strict interpretations of these conditions by Job Centre staff may be excluding significant numbers of EU nationals from accessing their formal social rights.</p>
<h2>Looking for work</h2>
<p>There are effectively two kinds of “jobseeker”. First, someone who has been employed, but for less than six months, or in work which is not considered “genuine and effective”. And second, a migrant who moves to another EU country to look for a job: they have a right to stay and look for work for six months. </p>
<p>Due to equal treatment legislation, after the first three months of living in a country, jobseekers have some entitlement to benefits that are designed to support the search for employment (usually unemployment benefit). They can only access these benefits for three months, and to access them, they must also show a close link with the domestic labour market. In the UK, all EU migrant jobseekers <a href="https://www.gov.uk/government/news/eu-jobseekers-barred-from-claiming-universal-credit">are excluded</a> from accessing universal credit as it is classed as a general social assistance benefit rather than an unemployment-related benefit.</p>
<h2>Route to permanent residency</h2>
<p>An EU citizen who lives in a second member state for five years or more, with no absences for longer than three months, is a permanent resident. This status applies automatically and there is no requirement to apply to be a permanent resident. It confers special protections against deportation and generates rights to have “recourse to public funds”, irrespective of employment status.</p>
<p>If an EU citizen is self-sufficient and meets national residency requirements, there are no formal limits on how long they can live in another member state. But it is possible to lose this right to reside, notably, if the migrant is “an unreasonable burden” on the host state. If an EU citizen loses this right to reside, they can be deported; although the criteria for deportation are high – such as very high threats to public health or the public good – and difficult to enforce.</p>
<p>What’s clear is that the law in this area is complicated. In 2014 and 2015, several national courts <a href="https://eulitigationblog.com/2015/10/04/case-c-6714-alimanovic-entitlement-to-social-assistance/">asked for rulings</a> from the EU’s Court of Justice to clarify the rights of EU citizens in practice. In light of this complexity, we should treat the <a href="https://hansard.parliament.uk/lords/2016-06-29/debates/16062974000414/EUNationalsInTheUK">public discussion</a> so far about how to treat free movement in Brexit negotiations as oversimplified and premature. In the meantime, whether “citizens”, “workers” or “jobseekers”, the future of EU nationals resident in the UK has become more uncertain and precarious.</p><img src="https://counter.theconversation.com/content/62186/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Emma Carmel is working on the research project TRANSWEL. TRANSWEL is funded by NORFACE, which is a consortium of national social science research councils from a number of European countries. </span></em></p>Free movement will be at the heart of post-Brexit negotiations. But what is it?Emma Carmel, Senior Lecturer, University of BathLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/617742016-06-29T15:51:14Z2016-06-29T15:51:14ZWhat now for EU citizens in the UK?<figure><img src="https://images.theconversation.com/files/128738/original/image-20160629-15263-12vfc6r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/descrier/25329923254/in/photolist-EAjtGJ-HWq7Fa-H3faak-HM6A9P-JjZS1q-GWeVFP-G7HQFJ-H3faAk-H3fafv-G7HQRo-JqpZNk-HQGy9i-Fyg28T-wwNpsN-oewfQY-JckMyk-HgdFVU-HgfQim-JckSB6-Hgrn5a-JcnUa2-J64CD9-JvAZNZ-prtrab-HYpzat-JwYqGc-JospcU-J4TBxd-HAWwT7-JvAAqr-Ju5Hdf-HFetsS-Jym2iE-JykXtW-JBnvWv-JbEXTw-JvAAAr-JykQcG-JykzFs-Jsp343-JbFh2W-HyyURS-JBnzpn-JykSUW-JsozCs-JsoK8E-JbF511-JykPab-HtY1wJ-Jb5kMN">Descrier</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>The result of the referendum in favour of leaving the European Union has thrown almost every aspect of British life up in the air. The main political parties are in crisis, the financial markets are in turmoil, the breakup of the UK is closer than ever and British people are scrambling to apply for Irish passports. But perhaps most uncertainty surrounds the status of non-British EU citizens living in the UK. The referendum was framed around their presence in the country. Now there are no clear answers about their future. </p>
<p>The increase in non-British EU citizens living and working in the UK is the result of EU rules on free movement. EU citizens can live and work in any EU member state without needing a work permit. According to <a href="http://www.un.org/en/development/desa/population/migration/data/estimates2/estimates15.shtml">UN figures</a> there are around 3.3m non-British EU citizens living in the UK. They mainly come from Poland, Ireland, Germany, Romania and Italy. And there are about 1.2m British citizens living in other EU countries. They are largely to be found in France, Spain, Ireland and Germany.</p>
<p>The terms of the UK exit will be determined during a negotiation process, starting from the moment Article 50 of the Lisbon treaty is invoked by the UK. During this process, which can take up to two years – with the possibility of an extension – the UK will continue to be fully bound by the principle of free movement, thus allowing non-British EU citizens to come and stay in the UK.</p>
<p>But once the UK is out, the fundamental principle of free movement will no longer apply, and there is great uncertainty about what will then happen to all the non-British EU citizens living in the UK. Their future will depend on the kind of new agreement that will be negotiated between the UK and the EU. </p>
<p>Different options have been proposed during the campaign. Some have suggested the Norway model, whereby the UK would still be part of the single market, and thus continue to benefit from the free movement of goods, capital, services and people. However, this alternative has been rejected by most Brexiters as it would not allow the UK to control EU immigration levels – the issue at the heart of the referendum debate.</p>
<p>Others have suggested an Australian-style points-based immigration system. The UK would select which EU and non-EU workers would be allowed in based on their skills. This would have a significant impact on people in lower-paid sectors, such as construction, manufacturing, hotels and hospitality, as they would most likely not qualify for entry into the UK. </p>
<p>What has been made clear is that there is no possibility of <a href="https://www.theguardian.com/world/2016/jun/28/brussels-eu-summit-leaders-push-quick-divorce-cameron-germany-brexit">cherry picking</a> the best parts of the single market. Despite the overwhelming support among MPs and businesses to keep the UK in the single market, this option will be difficult to pursue as it would mean continued free movement of people. Which option is chosen will very much depend on what the next UK government looks like, who is at its head, and how the referendum result is interpreted.</p>
<p>Even if free movement is restricted in the future, political leaders of Vote Leave have come out with reassurances that nothing will happen to those EU citizens already living in the UK, or to UK citizens living in other EU countries. They are echoing legal experts who say that collective expulsion is prohibited by international law.</p>
<p>But expulsion is the extreme version of events. There are plenty of ways for EU citizens to be made to feel unwelcome in the UK before they are actually kicked out. </p>
<p>The loss of EU status may create the need for work permits and visas. They come with a lot of <a href="http://www.theweek.co.uk/eu-referendum/73161/what-would-happen-to-eu-nationals-in-the-uk-after-brexit">bureaucracy and expense</a>.</p>
<p>Even before that happens, there is a sense of insecurity. Non-British EU citizens are already reflecting on their place in Britain. Adriana Chodakowska, the editor of the Polish news site Londynek, has said that many Polish people feel <a href="http://www.independent.co.uk/news/uk/home-news/brexit-polish-builders-defiant-but-admit-future-is-uncertain-after-eu-referendum-vote-a7100761.html">“lost, scared and uncertain”</a>. And with the significant increase in the number of reported racist attacks targeting non-British EU citizens across the country since the referendum, many feel threatened.</p>
<p>Talking to several non-British EU citizens who have made London their home, there is also a sense of desolation and frustration with the direction the country has chosen.</p>
<p>While both the EU and the UK will be committed to reaching an agreement that protects the status of EU citizens living in the UK, there will be a long period of uncertainty leading up to it. During that period, many of those highly skilled and educated EU citizens who have reservations about the immigration narrative that has evolved during the course of the referendum, and who believe in the idea of the EU, may well choose to relocate. The beneficiaries of their skills are likely to be Berlin, Dublin, Frankfurt, Paris, and perhaps, just perhaps, Edinburgh.</p><img src="https://counter.theconversation.com/content/61774/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Magdalena Frennhoff Larsén does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Considering how central these people seemed to be to the campaign, it’s interesting how vague everyone is being about their future.Magdalena Frennhoff Larsén, Lecturer in Politics, University of WestminsterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/616062016-06-27T14:13:05Z2016-06-27T14:13:05ZBrexit and immigration: some questions that need answering<figure><img src="https://images.theconversation.com/files/128142/original/image-20160625-28362-iproq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>So, the UK has voted to leave the EU. Divorce proceedings will likely begin through the EU Treaty’s Article 50 framework. But we know very little about how relations between Britain and its neighbours will evolve. And most noticeably, we know very little about what happens with regard to immigration – even though it was one of the defining themes of the campaign.</p>
<p>There are serious questions that need to be answered about how Brexiters envisage navigating this issue. Some of them are below.</p>
<h2>Will immigration be restricted?</h2>
<p>During the campaign, there was <a href="http://www.newstatesman.com/politics/uk/2016/06/neither-side-told-truth-about-immigration-eu-referendum-campaign">a lack of honesty</a> on migration.</p>
<p>Despite big promises, representatives of the Leave camp <a href="http://www.huffingtonpost.co.uk/entry/evan-davis-newsnight-bbc-daniel-hannan-mep-eu-referendum-brexit_uk_576e2967e4b08d2c56393241">have already implied</a> that EU migration into the UK cannot be cut in the way that was promised before the vote. </p>
<p>Although we have no idea what a post-Brexit migration policy will look like, we do know that non-EU migration alone has been over 100,000 every year for the past 25 years. And that is supposed to be the type of immigration that the British government can control.</p>
<p>Not only has the government failed to reduce total net migration to below 100,000, it has failed even to get non-EU migration below this figure – and that’s supposed to be migration that it can control more easily than immigration from other EU countries. This raises very serious questions for the future shape of UK immigration policy, let alone its possible consequences. </p>
<h2>Can a points-based system work?</h2>
<p>The main proposal coming from the Leave campaigners has been a <a href="https://theconversation.com/explainer-what-is-australias-points-system-for-immigration-26065">points-based system</a>. Yet not only do countries operating a points-based system, such as Australia, Canada and the US, have higher migration per capita than the UK, even those in the UK who advocate much tighter controls on immigration believe the points-based system <a href="http://www.huffingtonpost.co.uk/entry/immigration-system-boris-australia_uk_574eceb9e4b0089281b4fc8c">may not be effective</a>. </p>
<p>Another, overlooked problem with the points-based system is that it assumes governments know better than businesses who should be employed. They set the rules about who qualifies for entry, based on assumed skills gaps. Only the people who are needed by the jobs market are allowed in – except that rules over skills set by governments can never be sufficiently targeted in terms of the precise skills gaps actually faced by the firms who do the hiring.</p>
<p>This is contradictory to the free-market arguments offered by Leave campaigners over trade.</p>
<h2>How do we fill the gap left behind?</h2>
<p>Another dimension to the migration debate is how to replace what is lost if all the immigrants who contribute to the economy have to stop going to the UK.</p>
<p>We <a href="https://theconversation.com/yes-eu-immigrants-do-have-a-positive-impact-on-public-finances-33815">have heard</a> time <a href="https://theconversation.com/hard-evidence-are-migrants-good-for-the-economy-30439">and again</a> how immigrants make a net contribution to the country, paying more in taxes than they take out in benefits. Not only do they carry out vital jobs in the NHS and other public services but they <a href="http://www.workpermit.com/news/2014-03-14/immigration-entrepreneurs-found-14-of-uk-start-up-businesses">also create new businesses</a>, which also contribute to the economy.</p>
<p>It is inevitable that these positive contributions will be lost under a system that reduces immigration. Given that <a href="https://theconversation.com/big-gap-between-rhetoric-and-facts-in-immigration-debate-22324">immigrants are more likely than UK citizens to be in work</a>, what does that mean for sectors which rely on migrant labour? </p>
<p>A key example is the NHS. <a href="https://fullfact.org/health/immigration-and-nhs-how-many-staff-are-eu-and-commonwealth/">Up to one in five NHS workers</a> is from outside the UK. <a href="http://www.ibtimes.co.uk/eu-referendum-nhs-needs-immigration-1565379">Over 10% of doctors and 4% of nurses</a> are from other countries in the <a href="https://www.gov.uk/eu-eea">European Economic Area</a>. </p>
<p>Vote Leave campaigners blamed migrants for treatment waiting times (as well as difficulties getting school places and high house prices). Yet research shows that, partly because migrants tend to be younger, fitter and use the NHS less, areas with higher proportions of migrants also have <a href="http://www.bsg.ox.ac.uk/research/working-paper-series/working-paper-005">shorter waiting times</a>.</p>
<p>This decision has created a huge amount of uncertainty that will be with us for many years. And the effects of this will be felt around the world. Only time will tell if, as one journalist put it, the UK now becomes <a href="https://www.theguardian.com/commentisfree/2016/jun/20/brexit-make-britain-worlds-most-hated-nation">the most hated country in the world</a> rather than one that welcomes willing workers.</p><img src="https://counter.theconversation.com/content/61606/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Ackrill does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Big promises have been made but no plan seems to be in place.Robert Ackrill, Professor of European Economics and Policy, Nottingham Trent UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/348202014-12-01T10:27:48Z2014-12-01T10:27:48ZPM has the power to address migration concerns without resorting to EU scare tactics<p>Before the 2010 General Election, <a href="http://www.telegraph.co.uk/news/politics/6961675/David-Cameron-net-immigration-will-be-capped-at-tens-of-thousands.html">David Cameron promised</a> to reduce net migration to “tens of thousands” and not hundreds of thousands.</p>
<p>This pledge is in ruins now that <a href="http://www.dailymail.co.uk/news/article-2851521/Cameron-s-pledge-cut-net-migration-lies-tatters-figure-soars-260-000.html">net migration</a> has hit levels even higher than before Cameron’s government took office. </p>
<p>Immigration issues are a top concern for UK voters. And Cameron’s <a href="http://www.theguardian.com/politics/2014/nov/28/alarm-bells-david-cameron-immigration-speech-prime-minister-rivers-of-blood">speech on migration</a> at a JCB factory in Staffordshire was meant to address these concerns head-on. </p>
<p>There were several acknowledgements of the many valuable contributions that migrants bring to the UK. He also acknowledged that many migrants typically stay for only a year or two in the UK before leaving the country.</p>
<p>But Cameron also claimed that some voters have been made to feel guilty for raising worries about migration and that this is wrong – even if they themselves have not been directly affected by migration.</p>
<h2>The substance</h2>
<p>The prime minister referred back to reforms introduced under his government, such as preventing illegal immigrants from opening bank accounts or acquiring a driving licence. But he also claimed that non-EU migrants have to “pass an English test”, leaving out the many caveats that can be found in this policy.</p>
<p>Migrants from a list of more than a dozen countries are exempt from the test, as are any migrants with a degree and migrants over 65 years old. In fact, a significant number of non-EU migrants to the UK – including people like me from the United States – are not required to take this test (I am now a British citizen).</p>
<p>One of the new policies Cameron announced relates to requiring EU migrants to have a job offer before arriving in the UK. EU job seekers who fail to find work within six months would be removed from the country. The aspiration is unclear in both cases. For the latter, it is difficult to see how these people will be identified, especially since EU citizens don’t need to have their passport stamped noting the date they entered the UK. </p>
<p>A second new policy is that EU migrants have to live in the UK for four years before they can claim benefits. This may play well with many voters at first glance, but it obscures an important issue. A rule like this would affect not only migrants from Europe but also UK citizens living abroad who return to the UK. If they needed to come home for a period of time to care for relatives, for example, they could find themselves locked out of access to various forms of support until they met these requirements, too.</p>
<p>Cameron’s biggest problem – and one that he has openly acknowledged – is that his plans could only happen if the EU treaty were changed. He has set out a wish list for EU reform that other members may not give him.</p>
<p>Cameron is offering policies that are not currently within his power. He is trying to appease disaffected voters as the election approaches but he runs the risk of agitating them further by breaking his promise – just as he did on immigration targets.</p>
<p>There are many options that are in Cameron’s control, but these seemed entirely absent from his speech in Staffordshire. He is capable – if not willing – to reinstate the <a href="http://www.parliament.uk/business/publications/research/briefing-papers/SN05725/migration-impacts-fund">Migration Impacts Fund</a> that his government abolished in 2010, for example.</p>
<p>This short-lived initiative was aimed at offering funding to public services to help them deal with the costs associated with increased numbers of migrants. He could reform the rules for residency requirements or citizenship. He could close unnecessary English language test loopholes.</p>
<p>Instead of talking up the problems that come as part of being a member of the EU, Westminster – and Cameron in particular – should focus much more on delivering policies within its control. The government has the ability to address the concerns of voters to some degree without implying nuclear options. Speeches like Cameron’s may contribute even further to their apathy in May 2015.</p><img src="https://counter.theconversation.com/content/34820/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thom Brooks is a Labour Party member.</span></em></p>Before the 2010 General Election, David Cameron promised to reduce net migration to “tens of thousands” and not hundreds of thousands. This pledge is in ruins now that net migration has hit levels even…Thom Brooks, Professor of Law and Government, Durham UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/348252014-11-28T17:20:30Z2014-11-28T17:20:30ZEU migrants come for the benefits? The figures tell a different story<p>Prime minister David Cameron has announced plans to <a href="http://www.independent.co.uk/news/uk/politics/david-cameron-we-will-bar-eu-nationals-from-benefits-for-four-years-9888621.html">ban EU immigrants from receiving state benefits</a>, including tax credits and social housing for a minimum of four years.</p>
<p>The proposal is designed to make sure low-skilled workers don’t end up taking home significantly more in the UK than they would by working at home, thereby deterring them from leaving in the first place. But cutting out-of-work benefits is an ineffective way to do this. Migrants come to the UK to work – not to live on benefits.</p>
<p>Only a small number of EU migrants are actually claiming welfare benefits in the UK. Between 2008 and 2013, the number of EU working-age benefit claimants doubled from 65,000 to 130,000.</p>
<p>But <a href="http://www.parliament.uk/business/publications/research/briefing-papers/SN06955/statistics-on-migrants-and-benefits">government data</a> show the majority of claimants are still from outside the EU. Unsurprisingly, the vast majority of claimants are British. In 2014, 4.9 million working-age benefit claimants – 92.6% of the total – were British while only 131,000, or 2.5%, were EU nationals. The number of recipients from outside of the UK – but not from the EU – was 264,000, or 5%.</p>
<p>A similar pattern exists for tax credits. In 2013 3.9 million families receiving these benefits were British citizens – 84.8% of the total. Only 302,000 (6.4%) were EU citizens and 413,000 (8.8%) were from outside of the UK.</p>
<h2>Not just fruit pickers</h2>
<p>This suggests that the decision to migrate to the UK is not motivated by a desire to claim benefits. And EU migrants say as much when asked. They say overwhelmingly that they want to move to the UK for a better to work, make money and live a better life as a result.</p>
<p>They want to be seen as hard-working and as making a contribution to both the UK economy and their local communities. They often take low-paid jobs that the British do not want to do.</p>
<p>And while some of the money they earn is sent home, much is put back into the UK economy through taxes and through their financial contribution to local businesses. The European Commission supports this, arguing that EU migrants continue to make a net contribution to their host countries’ finances, by paying more in taxes than they receive in benefits.</p>
<p>Many EU migrants are not benefit scroungers or job-takers, even if they are often portrayed as such. My <a href="https://www.sheffield.ac.uk/geography/staff/harris_catherine/index">research</a> into Polish businesses in the UK shows Polish migrants have set up entrepreneurial ventures that go beyond the plumber, fruit picker and delicatessen stereotypes. </p>
<p>Businesses include recruitment agencies, marketing agencies and large food factories. Not only have these provided jobs for migrants, they have also, in some cases, provided jobs to British workers who were previously unemployed.</p>
<p>In towns and cities throughout the UK, run-down streets have been transformed when migrant businesses move in, paying rates to local councils. It’s hard to agree that the impetus in these cases is to claim benefits. EU migrants are going to great lengths to establish themselves in the UK and to secure work not only for themselves but others too.</p>
<p>And it’s therefore hard to imagine how reducing the number of EU migrants receiving British benefits would make a significant difference to the overall welfare bill or, indeed, how Cameron’s plan will have any substantial impact on reducing the flows of EU migrants to the UK.</p><img src="https://counter.theconversation.com/content/34825/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Catherine Harris does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Prime minister David Cameron has announced plans to ban EU immigrants from receiving state benefits, including tax credits and social housing for a minimum of four years. The proposal is designed to make…Catherine Harris, Research Fellow in EU migration and ethnic entrepreneurship, University of SheffieldLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/266142014-05-12T17:29:13Z2014-05-12T17:29:13ZUefa financial fair play rules may not survive the row with Manchester City<p>Lurking behind the jubilation of Manchester City <a href="http://news.sky.com/story/1259469/manchester-city-to-celebrate-win-with-parade">winning a second Premier League football title in three years</a> has been their <a href="http://www.theguardian.com/football/2014/may/09/manchester-city-ffp-appeal-uefa">dispute with Uefa</a> over the <a href="http://www.financialfairplay.co.uk/financial-fair-play-explained.php">financial fair play (FFP) regulations</a>. The club faces a fine of around €60 million (£50m); reductions in the size of the squad they can nominate for the Champions League next season; and possibly restrictions on their wage bill and transfers. It is difficult to recall a harsher punishment being imposed on a club.</p>
<p>They have to decide whether appeal to the <a href="http://www.tas-cas.org/news">Court of Arbitration for Sport</a> in Lausanne, but they could incur a heavier penalty as a result - <a href="http://www.dailymail.co.uk/sport/football/article-2625288/Man-Citys-title-win-years-decide-battle-UEFA-sanction-breaking-FFP-rules.html">including the possibility</a> of being thrown out of the Champion’s League next season. And if the sanctions are perceived to be too lenient, other clubs such as Arsenal who have set considerable store by the implementation of FFP could appeal against them.</p>
<p>City are affronted by the imposition of sanctions against them as they consider that other clubs such as <a href="http://www.psg.fr/en/Accueil/0/Home">Paris Saint-Germain</a> have shown a more blatant disregard for the rules. But Uefa is determined that its rules should be taken seriously and to make an example of particular clubs who are seen to have breached them. </p>
<h2>No ladder, no opportunity</h2>
<p>The rules are based on the so-called break-even requirement, which requires that a club’s relevant expenses do not exceed its relevant revenue. They are intended to rein in overspending by European football clubs, particularly on player wages, and to prevent clubs with rich owners from gaining an unfair advantage. In some respects, though, what the rules do is reinforce the dominance of existing top clubs like Bayern Munich and Real Madrid. </p>
<p>It offers them a means of pulling up the ladder behind them so that clubs like Manchester City – which were not competing with the top clubs until they were bought by <a href="http://www.mcfc.co.uk/news/club-news/2009/july/sheikh-mansour-exclusive-interview">Sheikh Mansour</a> six years ago – can no longer be funded in a way that enables them to do so.</p>
<p>Uefa has been sceptical about City’s sale of intellectual property rights to help cut their losses. This means that Uefa views the club as being £99m in the red, more than twice the £37m figure permitted. The sponsorship of the Etihad Stadium may also have been regarded as too generous, while rules relating to wages paid on historic contracts may not have worked to City’s favour.</p>
<p>Many clubs hope the financial fair play (FFP) regulations will create a more level playing field and end the era of heavy spending. What this does not take into account is that both the European and the domestic regulations that have been implemented to reflect Uefa’s rules are likely to be challenged in the courts when a club is given a severe sanction – if this doesn’t turn out to be Manchester City, it will probably not be long in coming. </p>
<p>Indeed a number of <a href="http://www.football-league.co.uk/page/ChampionshipHome">Championship</a> clubs <a href="http://www.theguardian.com/football/2014/feb/26/financial-fair-play-clubs-threat-football-league">have already</a> engaged a solicitor to write to the Football League to warn them of the possibility of legal action – illustrating that this is not just an issue for the biggest European clubs. It is also possible for individual players to bring legal claims and this may be the route by which the issue enters the courts, as it did with the far-reaching <a href="http://news.bbc.co.uk/sport1/hi/football/4528732.stm">Bosman judgment</a> when it fundamentally changed the transfer system.</p>
<h2>Is the law lawful?</h2>
<p>If the regulations came before the courts, at the very least their implementation would be held up, but it also looks potentially likely that the legal challenge would succeed. There are some differences between domestic and European law in the relevant area, which could add further complications, but I am not sure they would matter much at the end of the day as European law ultimately has primacy over that of a member state in matters covered by European treaties.</p>
<p>The main issue is competition law, covered by <a href="http://ec.europa.eu/competition/antitrust/legislation/articles.html">article 101 of the treaty of the functioning of the European Union</a>.
The fair play rules risk breaching this by outlawing collusive action that erects barriers to entry – this would affect domestic schemes such as that developed by the Football League, which runs the second, third and fourth tiers in English football. </p>
<p>The rules are concerned with the long-term financial stability of club football. But it is doubtful whether this can be considered as a legitimate objective under EU law, which does not justify restrictions on competition. </p>
<p>Neither is it enough to show that European football is suffering from financial difficulties. In particular, it has to be shown that there is no alternative, less restrictive means of achieving the objective such as a luxury tax on top clubs – a move would be deeply unpopular with the Real Madrids and Bayerns and would probably have been more difficult to persuade them to vote in favour of than the rules that were agreed. </p>
<p>Financial fair play <a href="http://www.hwwi.org/uploads/tx_wilpubdb/HWWI_Policy_Paper_79.pdf">may also violate the free movement of workers</a> within the EU – the basis of the Bosman judgment. There are issues in this connexion around articles 15 and 16 of the EU’s <a href="http://www.europarl.europa.eu/charter/pdf/text_en.pdf">Charter of Fundamental Rights</a>, which are respectively about the right to choose an occupation and the right to conduct a business. </p>
<p>There may be other ways of achieving the objective of restraining spending that are lawful, but they will take time to devise. In the meantime, Manchester City could well become the test case that begins to pull financial fair play apart. </p><img src="https://counter.theconversation.com/content/26614/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wyn Grant has received funding from ESRC/BBSRC</span></em></p>Lurking behind the jubilation of Manchester City winning a second Premier League football title in three years has been their dispute with Uefa over the financial fair play (FFP) regulations. The club…Wyn Grant, Professor of politics, University of WarwickLicensed as Creative Commons – attribution, no derivatives.