Skip to main content
×
×
Home

Between Law and Political Truth? Member State Preferences, EU Free Movement Rules and National Immigration Law

  • Jo SHAW (a1)
Abstract

This article explores how Member States respond to the challenge of complying with EU law obligations, whilst remaining alert to the demands of domestic politics in the context of contentious areas of EU competence. It is argued that in the case of free movement we can see the United Kingdom drawing upon three overlapping strategies in order to tread the fine line ‘between law and political truth’: it exploits as much as possible any uncertainties within free movement law; it draws upon the proximate field of domestic immigration law in order to reinterpret free movement law; and it argues for new resources to be brought into the field of free movement, in particular resources which restrict the freedoms of Member States. A discursive frame of migration governance provides the analytical construction within which the argument is located. The article is therefore a contribution to debates about (legal) Europeanisation and compliance, as well as the more specific challenges facing the UK in the latter half of the 2010s, namely a renegotiation of and referendum on EU membership.

Copyright
Footnotes
Hide All
*

Earlier versions of this article were presented at the UACES Conference in Cork, Ireland, September 2014 and the IMISCOE/EUI Conference on Mobilities, Florence, Italy, January 2015. I am grateful to the participants at those conferences and to the Editors of the Yearbook for their comments. The article draws on the results of two earlier projects: (1) an empirical research project which looked at the frictions between UK immigration law and EU free movement law entitled Friction and Overlap between EU Free Movement Rules and Immigration Law in the United Kingdom, Nuffield Foundation (Grant No OPD/36198). Final report: J Shaw et al, Getting to Grips with EU Citizenship: Understanding the Friction Between UK Immigration Law and EU Free Movement Law, Research Report, 2013, http://www.frictionandoverlap.ed.ac.uk/files/1693_fullreportlowres.pdf [last accessed 27 August 2015]; (2) a programme of work undertaken with Niamh Nic Shuibhne as Joint General Rapporteurs on Union Citizenship for the XXVI FIDE Congress, Copenhagen, May 2014. See N Nic Shuibhne and J Shaw, ‘General Report’ in U Neergaard et al (eds), Union Citizenship: Development, Impact and Challenges (DJØF Publishing, 2014). Notwithstanding the collective nature of these projects, all remaining infelicities are mine alone.

Footnotes
References
Hide All

1 This is a variation on a comment by DP Hodges that politicians find themselves trapped, in relation to immigration between ‘absolute and political truth’. Hodges, D, ‘Britons have become scared of the wider world’, Daily Telegraph, 5 August 2014 : http://blogs.telegraph.co.uk/news/danhodges/100282452/britons-have-become-scared-of-the-wider-world/ [last accessed 27 August 2015]; see further note 34 below.

2 Blauberger, Eg M, ‘With Luxembourg in Mind … The Remaking of National Policies in the Face of ECJ Jurisprudence’, (2012) 19 Journal of European Public Policy 109 ; Blauberger, M., ‘National Responses to European Court Jurisprudence’, (2014) 37 West European Politics 457 ; Schmidt, S., ‘Judicial Europeanisation: The Case of Zambrano in Ireland’, (2014) 37 West European Politics 769 .

3 Council Directive 64/221/EEC [1964] OJ 850/64; Council Regulation (EEC) No 1612/68 [1968] OJ L257/2.

4 Directive 2004/38/EC [2004] OJ L158/77.

5 A detailed commentary on EU free movement law, or on Directive, lies beyond the scope of this article. For further details, see S Peers et al, The EU Citizenship Directive. A Commentary, (Oxford University Press, 2014).

6 See Shaw, J, ‘Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism’, in P Craig and G de Búrca (eds), The Evolution of EU Law, 2nd ed (Oxford University Press, 2011).

7 Eg in Ruiz Zambrano, C-34/09, ECLI:EU:C:2011:124, para 41.

8 Intergovernmental Committee on European Integration, The Brussels Report on the General Common Market (abridged, English translation of document commonly called the Spaak Report), June 1956, Archive of European Integration: http://aei.pitt.edu/995/ [last accessed 27 August 2015].

9 Editorial Comments, ‘The Free Movement of Persons in the European Union: Salvaging the Dream While Explaining the Nightmare’, (2014) 41 Common Market Law Review 729, p 736.

10 Benton, M and Petrovic, M, ‘How Free is Free Movement? Dynamics and Drivers of Mobility within the European Union’ MPI Europe, March 2013 .

11 See the data at http://europa.eu/about-eu/facts-figures/living/index_en.htm [last accessed 27 August 2015].

12 See the most recent data at http://ec.europa.eu/eurostat/statistics-explained/index.php/Migration_and_migrant_population_statistics (updated in May 2015 with most data referring to January 2014) and with more details (but older figures) on a wider variety of cross border activities: http://ec.europa.eu/eurostat/statistics-explained/index.php/EU_citizenship_-_statistics_on_cross-border_activities [last accessed 27 August 2015].

14 Cameron, Eg D, ‘Free movement needs to be less free’ Financial Times, 26 November 2013 : http://www.ft.com/cms/s/0/add36222-56be-11e3-ab12-00144feabdc0.html#axzz39YJSsk5W, referring to ‘vast migrations’ [last accessed 27 August 2015].

15 Horsley, T and Reynolds, S, ‘United Kingdom’, in U Neergaard et al (eds), Union Citizenship: Development, Impact and Challenges (DJØF Publishing, 2014). Examples of poor treatment of new Member States in particular include the Daily Telegraph describing the Visegrad countries in 2013 as ‘EU accession countries’: http://www.telegraph.co.uk/news/uknews/immigration/10484225/Eastern-European-immigrants-overwhelming-benefit-UK-economy.html [last accessed 27 August 2015].

16 See, eg, the work of David Goodhart discussed at note 131 below in the context of his submission to the Balance of Competences Review report on free movement, and the weight placed upon this work by the report.

17 Letter to the Irish Presidency from the Ministers of the Interior of Austria, Germany, the Netherlands and the UK, April 2013: http://docs.dpaq.de/3604-130415_letter_to_presidency_final_1_2.pdf [last accessed 28 August 2015]. For further analysis see M Blauberger and S Schmidt, ‘Welfare Migration? Free Movement of EU Citizens and Access to Social Benefits’ (2014) October–December Research & Politics 1, http://dx.doi.org/10.1177/2053168014563879.

18 See J-M Lafleur and M Stanek, ‘Restrictions in access to social protection of mobile citizens in times of crisis: the case of EU citizens expelled from Belgium’, IMISCOE/EUI Conference, Mobility in Crisis, January 2015.

19 ‘We must ensure that people do not profit from our welfare system’: http://www.rtl.be/info/belgique/politique/maggie-de-block-il-faut-eviter-que-des-gens-profitent-de-notre-systeme-social-video--396658.aspx (trans. Shaw) [last accessed 28 August 2015].

20 J Hampshire, ‘Millions on the move’ (August–September 2014) The World Today 13, p 14.

21 Eurobarometer value of free movement.

22 ‘Migrants from Central and Eastern Europe have been hugely beneficial for the British economy’, Joint Statement on the Free Movements of Persons by the Foreign Ministers of the Visegrad countries – Czech Republic, Hungary, Poland and Slovakia, November 2013, reproduced at http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2017395%202013%20INIT [last accessed 1 September 2015]

23 ‘In times of crisis, we must safeguard free movement’, Letter to the Financial Times from the EU Affairs Ministers of Sweden, Finland and Norway, 16 January 2014.

24 See Benton and Petrovic, note 10 above.

25 ‘Germany revealed as main destination of EU migrants, as Poland vows to veto UK’, The Independent, 2 December 2014: http://www.independent.co.uk/news/world/europe/germany-revealed-as-main-destination-of-eu-migrants-as-poland-vows-to-veto-uk-9897327.html [last accessed 28 August 2015]. See R Verwiebe, ‘New Forms of Intra-European Migration, Labour Market Dynamics and Social Inequality in Europe’, (2014) 11 Migration Letters 125.

26 Recchi, E and Salamońska, J, ‘Bad Times at Home, Good Times to Move? The (Not So) Changing Landscape of Intra-EU Migration’, in V Guiraudon et al (eds), Europe's Prolonged Crisis. The Making or the Unmaking of a Political Union (Palgrave, 2015).

27 ‘At the height of the Euro crisis there were times when more young Irish citizens were leaving their little homeland in search of work than all the Spanish and Italians together. … Workforce mobility is the only outlet for economic pressure, the only means that can halfway ensure that unemployment rates in the Eurozone converge instead of diverge. Europeans will have to emigrate from Helsinki to Brindisi just as naturally as they do from Hamburg and Berlin. In the absence of a transfer union, mobility should be significantly higher than it is in the US - and yet it is much lower. … What we urgently need, also in Germany, is a new policy on mobility: a policy that actively promotes language learning and job placements across Europe’, from ‘Her mit den neuen Gastarbeitern!’ Die Welt 19 July 2015: http://www.welt.de/print/wams/debatte/article144181397/Her-mit-den-neuen-Gastarbeitern.html (English translation from http://www.eurotopics.net/en/home/presseschau/archiv/article/ARTICLE166613-Eurozone-needs-more-mobile-workforce) [last accessed 28 August 2015].

28 See Delivet, P, The Free Movement of People in the European Union: Principle, Stakes and Challenges, (Robert Schuman Foundation Policy Paper, European Issues No 312, May 2014).

29 It is not only EU lawyers who seek to insist on the difference between ‘free movement’ and ‘immigration’. Proponents of the distinction include sociologists such as A Favell, ‘The UK has been one of the main beneficiaries from free movement of labour in the EU’, LSE EUROPP, 1 July 2014: http://blogs.lse.ac.uk/europpblog/2014/07/01/the-uk-has-been-one-of-the-main-beneficiaries-from-free-movement-of-labour-in-the-eu/ [last accessed 28 August 2015]

30 Of course scholars of migration have regularly exposed the lack of control which politicians and bureaucrats have over many aspects of immigration control in modern democratic states, and thus the gap between rhetoric and messy reality: Boswell, C, ‘Migration control and the surveillance myth’, Policy Network, 23 January 2011 : http://www.policy-network.net/pno_detail.aspx?ID=3940 [last accessed 28 August 2015].

31 Prime Minister’s Speech at JCB Staffordshire, 28 November 2014: https://www.gov.uk/government/speeches/jcb-staffordshire-prime-ministers-speech [last accessed 28 August 2015] The webpage notes that the speech contains proposals made as leader of the Conservative Party during the 2010–2015 Coalition Government.

32 Shuibhne, N Nic, ‘Exceptions to the Free Movement Rules’, in C Barnard and S Peers (eds), European Union Law (Oxford University Press, 2014).

33 Deutsche Bank Research, Research Briefing, Debate on Free Movement. Does the EU Need New Rules on Social Security Co-ordination?, 20 March 2015 contains a brief review of most of the evidence on the alleged welfare magnet effects of free movement, as well as the fiscal impacts of EU migrants. See also J Wadsworth, Immigration, the European Union and the UK Labour Market (Centre for Economic Performance CEPPA015, May 2014) http://cep.lse.ac.uk/pubs/download/pa015.pdf and Review of the Balance of Competences between the United Kingdom and the European Union Single Market: Free Movement of Persons (HM Government, July 2014) https://www.gov.uk/government/consultations/free-movement-of-persons-review-of-the-balance-of-competences [last accessed 28 August 2015].

34 See note 1 above. Whether or not this trap is of their own making is a different question, on which see Goodwin, M, ‘Why the “Immigration debate” is getting us nowhere’ New Statesman, 27 November 2013 : http://www.newstatesman.com/politics/2013/11/why-immigration-debate-getting-us-nowhere [last accessed 28 August 2015].

35 This was a mantra regularly repeated by Labour Party shadow ministers during 2014, such as Ed Balls, Yvette Cooper and Dave Hanson: see ‘David Cameron promises ‘One last go’ at EU migration curbs’, BBC News, 16 October 2014: http://www.bbc.co.uk/news/uk-politics-29642604 [last accessed 28 August 2015]. It is also the terminology used by the IPPR, A fair deal on migration for the UK March 2014: http://www.ippr.org/publications/a-fair-deal-on-migration-for-the-uk and it has been picked up by former European Commissioner László Andor, Fair Mobility in Europe (Social Europe, Occasional Paper, Friedrich Ebert Stiftung, January 2015) http://www.socialeurope.eu/wp-content/uploads/2015/01/OP7.pdf [last accessed 28 August 2015].

36 See, eg, the discussion in the Balance of Competences review report in note 33 above, pp 42–45; Portes, J, ‘Labour Mobility in the European Union’ in S Durlauf and L Blume (eds), The New Palgrave Dictionary of Economics, Online Edition (Palgrave, 2015), p 9 .

37 ‘Open Europe report on reforming EU free movement: make it fair to keep it free’ Open Europe 24 November 2014: http://openeuropeblog.blogspot.co.uk/2014/11/open-europe-report-on-reforming-eu-free.html [last accessed 28 August 2015].

38 J Hampshire, see note 20 above.

39 Carmel, E, ‘Mobility, Migration and Rights in the European Union: Critical Reflections on Policy and Practice’ (2013) 34 Policy Studies 238 .

40 Paul, R, ‘Strategic Contextualisation: Free Movement, Labour Migration Policies and the Governance of Foreign Workers in Europe’ (2013) 34 Policy Studies 122 .

41 Carmel, E, ‘With What Implications? An Assessment of EU Migration Governance Between Union Regulation and National Diversity’ (2014) 11 Migration Letters 137, p 140 .

42 Carmel, E, ‘European Union Migration Governance: Utility, Security and Integration’ in E Carmel et al (eds), Migration and Welfare in the New Europe: Social Protection and the Challenges of Integration (Policy Press, 2011), p 52 .

43 Carmel, E and Paul, R, ‘Complex Stratification: Understanding European Union governance of Migrant Rights’ (2013) 3 Regions & Cohesion 56 .

44 Ruhs, M, ‘Ten Features of labour immigration policies in high-income countries’, 15 January 2014 : http://www.priceofrights.com/blog/post.php?s=2014-01-15-ten-features-of-labour-immigration-policies-in-highincome-countries#.U-ICGkjQQ70 [last accessed 28 August 2015]. For more detail see Ruhs, M, The Price of Rights: Regulating International Labor Migration (Princeton University Press, 2014).

45 M Ruhs, ‘Is Unrestricted Immigration Compatible With Inclusive Welfare States? The (Un)sustainability of EU Exceptionalism’ COMPAS Working Paper No 125, University of Oxford, 2015 with a shorter blog at http://www.priceofrights.com/blog/post.php?s=2015-06-25-eu-migration-and-welfare-benefits-is-unrestricted-labour-immigration-compatible-with-an-inclusive-welfare-state#.Va_kVbdzaKA [last accessed 28 August 2015].

46 R Paul, see note 40 above, p 130.

47 Salt, J and Dobson, J, ‘Cutting Net Migration to the Tens of Thousands: What Exactly Does That Mean?’, MRU Discussion Paper, UCL, November 2013 : https://www.ucl.ac.uk/news/news-articles/1113/Salt_Dobson_291013.pdf [last accessed 28 August 2015].

48 Britain Can be Better, UK General Election 2015 Labour Party Manifesto, pp 49–50.

49 ‘David Cameron unveils new non-EU migration crackdown’, BBC News, 10 June 2015: http://www.bbc.co.uk/news/uk-politics-33082737; Migration Advisory Committee, ‘Call for Evidence. Review of Tier 2’ July 2015: https://www.gov.uk/government/news/migration-advisory-committee-mac-review-of-tier-2 [last accessed 28 August 2015].

50 Shaw, J et al, Getting to Grips with EU Citizenship: Understanding the Friction Between UK Immigration Law and EU Free Movement Law (Edinburgh Law School Citizenship Studies, 2013): http://www.frictionandoverlap.ed.ac.uk/files/1693_fullreportlowres.pdf [last accessed 28 August 2015]; Shaw, J and Miller, N, ‘When Legal Worlds Collide: An Exploration of What Happens when EU Free Movement Law Meets UK Immigration Law’ (2013) 38 European Law Review 137 .

51 For discussion see J Shaw and N Miller ibid, pp 144–145.

52 Börzel, T, ‘Pace setting, Foot dragging, and Fence sitting: Member State Responses to Europeanisation’ (2002) 40 Journal of Common Market Studies 193 .

53 Kelemen, D, ‘Judicialisation, Democracy and European Integration’ (2013) 49(3) Representation 295 .

54 Vardt, M Van Der, ‘Desperate Needs, Desperate Deeds: Why Mainstream Parties Respond to the Issues of Niche Parties’ (2015) 38(1) West European Politics 93 .

55 For a snapshot of Liberal Democrat party policy when junior Coalition partners, see Liberal Democrats leader Nick Clegg's immigration speech, 6 August 2014: http://www.libdems.org.uk/nick_clegg_s_immigration_speech [last accessed 28 August 2015].

56 This is a paraphrase of DP Hodge’s comment that politicians find themselves between ‘absolute and political truth’ in relation to the ‘trap’ of immigration discourse, bringing in the rule of law as an additional element.

57 Editorial Comments, see note 9 above, p 733. N Nic Shuibhne and J Shaw, ‘General Report’ in U Neergaard et al (eds), see note 15 above.

58 The UK implementation of EU free movement rules explicitly extends all the same rights and legal frameworks to citizens of the EEA as well as the EU (ie Norway, Iceland and Liechtenstein), as well as Swiss citizens. The ‘shorthand’ to cover all these categories is the reference ‘EEA’.

59 Immigration (European Economic Area) Regulations 2006, SI 2006/1003. An unofficial but extremely useful copy of the consolidated Regulations is available here: http://www.eearegulations.co.uk/Latest/Index [last accessed 28 August 2015]. However, this should not be relied upon as a legal document.

60 Galanter, M, ‘In the Winter of Our Discontent: Law, Anti-Law, and Social Science’ (2006) 2 Annual Review of Law and Social Science 1, p 1 .

61 N Nic Shuibhne and J Shaw, see note 57 above, p 149.

62 The UKBA was replaced in 2013 by UK Visas and Immigration (UKVI), and the work was taken back ‘in house’ within the Home Office.

63 Quotations from interview data collected for the Nuffield Project on Friction and Overlap are identified by the same numerical identifiers used in the original research report, see J Shaw et al, note 50 above.

64 M Blauberger and S Schmidt, see note 17 above, p 2.

65 Ruiz Zambrano ECLI:EU:C:2011:124.

66 Dereci and Others, C-256/11, ECLI:EU:C:2011:734, O and S, C-356/11 and C-357/11, ECLI:EU:C:2012:776.

67 See N Nic Shuibhne and J Shaw, see note 57 above, pp 141–150.

68 Noted in J Langer and A Schrauwen, ‘The Netherlands’, in U Neergaard et al, see note 15 above, pp 705–706.

69 Chavez-Vilchez, C-133/15, pending.

70 NA (Pakistan), C-115/15, pending.

71 Immigration (EEA) (Amendment) (No 2) Regulations 2012, SI 2012/2560; see T Horsley and S Reynolds, see note 15 above, pp 866–867.

72 The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012, SI 2012/2588; The Social Security (Habitual Residence) (Amendment) Regulations 2012, SI 2012/2587.

73 Sanneh v SSWP and others [2015] EWCA Civ 49. See T Horsley and S Reynolds, note 15 above, pp 870–871 for discussion of the same case at an earlier stage of the proceedings. For discussion of the Court of Appeal case see D Rutledge, ‘New Zambrano case: Good news and bad news for Zambrano carers’ Free Movement, 10 February 2015: https://www.freemovement.org.uk/new-zambrano-case-good-news-and-bad-news-for-zambrano-carers/ [last accessed 28 August 2015].

74 Perhaps the most high profile example has come from Belgium: see J-M Lafleur and M Stanek, note 18 above. For further details on the follow up from the European institutions see http://europa.eu/rapid/press-release_MEMO-13-122_en.htm (original infringement action) and http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2014-000356&language=EN (written Reply by Reding to a parliamentary question).

75 Antonissen, C-292/89, ECLI:EU:C:1991:80.

76 The November 2014 ruling in Dano v Jobcenter Leipzig, C-333/13, ECLI:EU:C:2014:2358 confirmed that Member States need not pay a non-contributory social security benefit which guarantees a level of subsistence to an EU citizen from another Member State who had not entered the country to look for work, and indeed who had never worked. It is important to compare this case with the Court’s insistence on the right to equal treatment of a person who had been working, who was forced out of the labour market by constraints arising from the late stages of pregnancy and the effects of childbirth; that person remains a ‘worker’: Saint Prix v Secretary of State for Work and Pensions, C-507/12, ECLI:EU:C:2014:2007. For commentary see Verschueren, H, ‘Preventing “Benefit Tourism” in the EU: A Narrow or Broad Interpretation of the Possibilities Offered by the ECJ in Dano? ’ (2015) 52 Common Market Law Review 363 and Thym, D, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically Inactive Union Citizens’, (2015) 52 Common Market Law Review 17 . For a comment on a separate concern that the Court of Justice has gone against its own constitutional principles as regards the relationship between primary and secondary law in Dano, see Shuibhne, N Nic, ‘State-less’ (2014) European Law Review 751 .

77 Cameron, D, ‘We’re building an immigration system that puts Britain first’ Daily Telegraph, 28 July 2014 : http://www.telegraph.co.uk/news/uknews/immigration/10995875/David-Cameron-Were-building-an-immigration-system-that-puts-Britain-first.html [last accessed 28 August 2015].

78 ‘EU migrants and benefits: Frequently (and some less frequently) asked questions’ House of Commons Library Blog, 2 December 2014, review of the situation by Second Reading: http://commonslibraryblog.com/2014/12/02/eu-migrants-and-benefits-frequently-and-some-less-frequently-asked-questions/ [last accessed 28 August 2015].

79 For details of these changes, see note 9 above; Evans, M, ‘Will Cameron’s immigration benefit crackdown clash with EU law?’ The Justice Gap, July 2014 : http://thejusticegap.com/2014/07/will-camerons-immigration-benefit-crackdown-clash-eu-law/ [last accessed 28 August 2015]; and Sibley, E and Collins, R, ‘Benefits For EEA Migrants’ (2014) 22 Policy & Practice 165 . For a summary of the issue from an EU law perspective, see ‘Freedom of movement and residence of EU citizens: Access to social benefits’ European Parliamentary Research Service, June 2014: http://epthinktank.eu/2014/06/16/freedom-of-movement-and-residence-of-eu-citizens-access-to-social-benefits/ [last accessed 28 August 2015].

80 Department of Work and Pensions, ‘Minimum earnings threshold for EEA migrants introduced’ 21 February 2014: https://www.gov.uk/government/news/minimum-earnings-threshold-for-eea-migrants-introduced [last accessed 28 August 2015].

81 Commission v United Kingdom C-308/14, pending.

82 Council and European Parliament Regulation (EC) 883/2004 [2004] OJ L 166/1.

83 Balance of Competences Review, see note above, pp 46–47.

84 This is a principle common to many civil law systems, and it has found a basis in EU law. See generally Feria, R de la and Vogenauer, S (eds), The Prohibition of Abuse of Law – A New General Principle of EU Law? (Hart Publishing, 2011).

85 [2012] UKUT 00038 (IAC).

86 Communication from the Commission to the European Parliament and the Council on guidance for the better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM (2009) 313 Final.

87 See Vine, J The Rights of European Citizens and their Spouses to Come to the UK: Inspecting the Application Process and the Tackling of Abuse (UK Government, June 2014): http://icinspector.independent.gov.uk/wp-content/uploads/2014/06/European-Casework-Report-Final.pdf [last accessed 28 August 2015]. The office of the ICI was instituted in 2008 ‘to assess the efficiency and effectiveness of the UK’s border and immigration functions’ (http://icinspector.independent.gov.uk/about/). It is interesting to note that the first inspection report on EU citizens’ rights was not issued until 2014.

88 See House of Commons Home Affairs Committee, The work of the Immigration Directorates (October–December 2013), Third Report of Sessions 2014-2014, HC 237, July 2014.

89 Vine, J, A short notice inspection of a sham marriage enforcement operation (UK Government, October 2013): http://icinspector.independent.gov.uk/wp-content/uploads/2014/01/An-Inspection-of-a-Sham-Marriage-Enforcement-Operation-Web-PDF.pdf [last accessed 28 August 2015].

90 Home Office Response: http://icinspector.independent.gov.uk/wp-content/uploads/2014/06/Home-Office-Formal-Response-to-ICI-Inspection-of-European-Casework-FINAL.pdf [last accessed 28 August 2015]. See the amendments to Regulation 19 and the new Regulations 20B and 21B of the EEA Regulations, reprinted in The Rights of European Citizens and their Spouses to Come to the UK, see note 87 above, pp 64–65.

91 The materials provided at http://eumovement.wordpress.com/2014/08/07/is-uk-handling-of-eea-family-permit-visas-still-a-problem/ provide an admittedly partial view of the matter, but the same issue was reported on the Single Market Scorecard in more abbreviated form (http://ec.europa.eu/internal_market/scoreboard/feedback/concerns/index_en.htm#maincontentSec29) [last accessed 28 August 2015].

92 For the detailed rules on financial requirements as of April 2015, see: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/420154/Appendix_FM_Annex_1_7_Financial_Requirement.pdf [last accessed 28 August 2015].

93 Singh, C-370/90, ECLI:EU:C:1992:296.

94 O and B v Minister voor Immigratie, Integratie en Asiel, C-456/12, ECLI:EU:C:2014:135.

95 Delivered jointly in S and G v. Minister voor Immigratie en Asiel, C-456/12 and C-457/12, ECLI:EU:C:2013:837.

96 O and B, ECLI:EU:C:2014:135, para 58.

97 Metock, C-127/08, ECLI:EU:C:2008:449.

98 The Immigration (European Economic Area) (Amendment) (No 2) Regulations 2013, SI 2013/3032.

100 See note 50 above.

101 This is discussed in more detail in J Shaw and N Miller, see note 50 above.

102 [2014] OJ L128/8.

103 McCarthy v SSHD, C-202/13, ECLI:EU:C:2014:2450.

104 See ‘Free movement: Commission asks the UK to uphold EU citizens' rights’: http://europa.eu/rapid/press-release_IP-12-417_en.htm?locale=en [last accessed 28 August 2015].

105 Exceptions were the documents issued by Germany and Estonia, and these are accepted by ECOs in lieu of an EEA family permit: The Immigration (European Economic Area) (Amendment) (No 2) Regulations 2013, SI 2013/3032.

106 Additional evidence about the concerns of the UK government in relation to abuses of free movement rights can be discerned from the Balance of Competences Review Report on free movement (see note 33 above) and from evidence submitted to the European Commission following a request from that body that allegations of a problem of fraud and abuse should be backed up by evidence (Evidence of Fraud and Abuse of Free Movement in the UK (European Scrutiny Committee, 2014) and Free Movement Rights – Initial Information for the European Commission (UK)(Home Office, 2014): http://www.publications.parliament.uk/pa/cm201314/cmselect/cmeuleg/83-xxviii/8306.htm [last accessed 1 September 2015]), which also commented – like the Commission – that the UK’s evidence tended to be qualitative, rather than quantitative in nature: ‘HO (35590) The Free Movement of EU Citizens’ (2014) 31st Report European Scrutiny Committee, para 2.13: http://www.publications.parliament.uk/pa/cm201314/cmselect/cmeuleg/83-xxviii/8305.htm [last accessed 28 August 2015].

107 McCarthy v SSHD [2012] EWHC 3368 (Admin), para 60.

108 Eg see Emsland-Stärke, C-110/99, EU:C:2000:695, paras 52–53.

109 McCarthy, see note 107 above, para 107.

110 Ibid, para 76.

111 ‘UK visa rules for some non-EU citizens illegal – European Court’, Irish Times, 18 December 2014: http://www.irishtimes.com/news/crime-and-law/uk-visa-rules-for-some-non-eu-citizens-illegal-european-court-1.2042952 [last accessed 1 September 2015].

112 ‘UK cannot block non-EU family’, Daily Mail, 18 December 2014: http://www.dailymail.co.uk/wires/pa/article-2878725/Judges-rule-non-EU-movement.html; ‘‘Millions’ more given the right to move to the UK after court rules EU workers free to bring their families… wherever they are from’, Daily Mail, 18 December 2014: http://www.dailymail.co.uk/news/article-2878913/Millions-given-right-UK-court-rules-EU-workers-free-bring-families-from.html; ‘European Court ruling threat to Britain's borders’, Daily Telegraph, 18 December 2014, http://www.telegraph.co.uk/news/uknews/immigration/11300829/European-court-ruling-threat-to-Britains-borders.html [last accessed 28 August 2015].

113 ‘Top EU Court rules against Britain in visa dispute’, Deutsche Welle, 18 December 2014: http://www.dw.de/top-eu-court-rules-against-britain-in-visa-dispute/a-18139527 [last accessed 28 August 2015].

114 Response by UKVI, 20 January 2015: https://www.scribd.com/doc/253276166/UKVI-response-to-McCarthy. See also ‘McCarthy Ruling’, 19 December 2014, http://britcits.blogspot.co.uk/2014/12/mccarthy-ruling.html [last accessed 28 August 2015].

115 The Immigration (European Economic Area) (Amendment) Regulations 2015, SI 2015/694.

116 Council Directive 2003/109/EC [2003] OJ L16/44.

118 See ‘Processes and Procedures for EEA Documentation Applications’ 7 April 2015: https://www.gov.uk/government/publications/processes-and-procedures-for-eea-documentation-applications [last accessed 28 August 2015]. For comment, see ‘Home Office confirms that EEA(FM) application form is not mandatory’ Free Movement, 9 April 2015: https://www.freemovement.org.uk/home-office-confirms-that-eeafm-application-form-is-not-mandatory/ [last accessed 28 August 2015].

119 ‘Theresa May interview: “We’re going to give illegal migrants a really hostile reception”’, Daily Telegraph, 10 May 2012: http://www.telegraph.co.uk/news/uknews/immigration/9291483/Theresa-May-interview-Were-going-to-give-illegal-migrants-a-really-hostile-reception.html.

120 Flynn, D, ‘From Home Office application forms to refugee policy, the ‘hostile environment’ now affects all migrants’, Migrants’ Rights Network, 7 February 2015 : http://www.migrantsrights.org.uk/blog/2015/02/home-office-application-forms-refugee-policy-hostile-environment-now-affects-all-migran [last accessed 28 August 2015].

121 See note 65 above.

122 Brey, C-140/12, ECLI:EU:C:2013:565.

123 See note 76 above.

124 See note 33 above.

125 HM Government, The Coalition: Our Programme for Government, 2010, p 19: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/78977/coalition_programme_for_government.pdf [last accessed 28 August 2015].

126 See note 33 above.

127 ‘Government delays EU immigration report because it is too positive’, The Independent, 10 December 2013: http://www.independent.co.uk/news/uk/politics/government-delays-eu-immigration-report-because-it-is-too-positive-8994264.html [last accessed 28 August 2015].

128 Helm, T, ‘Revealed: How Tories covered up pro-EU evidence in key Whitehall report’, The Observer, 19 April 2015 : http://www.theguardian.com/world/2015/apr/18/tories-covered-up-eu-evidence-conservatives [last accessed 28 August 2015].

129 House of Lords European Union Committee, Letter to the Minister for Europe, 22 October 2014: http://www.parliament.uk/documents/lords-committees/eu-select/BoC/letter-to-minister-for-europe-third-semester.pdf [last accessed 28 August 2015].

130 Emerson, M (ed) Britain’s Future in Europe. Reform, Renegotiation, Repatriation or Secession? (Rowman and Littlefield, 2015), p 31 .

131 Ibid, pp 31–32.

133 House of Lords Select Committee on the European Union, The Review of the Balance of Competences between the UK and EU, HL Paper 140, 25 March 2015: http://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-select-committee-/news/balance-of-compentences-report-published/ [last accessed 28 August 2015].

134 Ibid, para 24.

135 Guild, E, ‘Cameron’s proposals to limit EU citizens’ access to UK: Lawful or not, under EU rules?’ CEPS Commentary, 29 November 2013 .

136 Eg Boris Johnson writing in The Telegraph in December 2014, http://www.telegraph.co.uk/news/uknews/immigration/11157890/Boris-Johnson-calls-for-quotas-on-EU-migrants.html [last accessed 28 August 2015].

137 ‘Merkel: UK exit better than restricting free movement’ EU Observer, 3 November 2014: https://euobserver.com/justice/126351 [last accessed 28 August 2015].

138 ‘David Cameron's plans to limit immigration through quotas for EU workers is illegal, European President says’ Daily Telegraph, 19 October 2014: http://www.telegraph.co.uk/news/uknews/immigration/11172379/David-Camerons-plans-to-limit-immigration-through-quotas-for-EU-workers-is-illegal-European-President-says.html [last accessed 28 August 2015]. For a more general report see also ‘EU skeptical about Cameron's quota for migrants’, Deutsche Welle, 7 January 2014: http://www.dw.de/eu-skeptical-about-camerons-quota-for-migrants/a-17344631 [last accessed 28 August 2015].

139 ‘What are David Cameron's options on EU immigration?’ Open Europe, 16 October 2014: http://openeuropeblog.blogspot.co.uk/2014/10/what-are-david-camerons-options-on-eu.html [last accessed 28 August 2015].

140 See Booth, S et al, Tread Carefully: The Impact and Management of EU Free Movement and Immigration Policy (Open Europe, 2012): http://archive.openeurope.org.uk/Content/Documents/EUimmigration2012_new.pdf [last accessed 28 August 2015].

141 Chalmers, D and Booth, S, A European Labour Market With National Welfare Systems: A Proposal For A New Citizenship and Integration Directive (Open Europe, 2014): http://openeurope.org.uk/wp-content/uploads/2014/11/a_European_labour_market_with_national_welfare_systems_a_proposal_for_a_new_citizenship_and_integration_directive.pdf [last accessed 28 August 2015]. This may chime with the findings of M Ruhs (see note 45 above) regarding the political interconnection of inclusive welfare states and unrestricted labour immigration.

142 A European labour market with national welfare systems, see note 141 above, p 2.

143 Gibbons, G, ‘Focus turns from EU quotas to ‘pull’ factors’, Channel 4 News Blog, 3 November 2014 : http://blogs.channel4.com/gary-gibbon-on-politics/focus-turns-u-quotas-pull-factors/29541 [last accessed 28 August 2015].

144 See note 31 above.

145 ‘Cameron: Welfare reform to be ‘absolute requirement’ in EU deal’ EU Observer, 21 May 2015: https://euobserver.com/political/128789 [last accessed 28 August 2015].

146 ‘What are the legal implications of David Cameron’s proposed reforms to EU migration?’ Open Europe Briefing, 11 December 2014: http://openeurope.org.uk/intelligence/immigration-and-justice/legal-implications-david-camerons-proposed-reforms-eu-migration/ [last accessed 28 August 2015].

147 Peers, S, ‘Amending EU free movement law: What are the legal limits?’, EU Law Analysis, 24 November 2014 : http://eulawanalysis.blogspot.co.uk/2014/11/amending-eu-free-movement-law-what-are.html; S Peers, ‘The nine labours of Cameron: Analysis of the plans to change EU free movement law’, EU Law Analysis, 28 November 2014: http://eulawanalysis.blogspot.co.uk/2014/11/the-nine-labours-of-cameron-analysis-of.html [last accessed 28 August 2015].

148 This specific proposal may well be popular with the Germans: ‘Exclusive: Angela Merkel may back David Cameron’s plan to stop child benefits going abroad’ The Independent, 21 December 2014: http://www.independent.co.uk/news/uk/politics/exclusive-angela-merkel-may-back-david-camerons-plan-to-stop-child-benefits-going-abroad-9939031.html [last accessed 28 August 2015].

149 See note 78 above.

150 Inserted by The Immigration (European Economic Area) (Amendment) (No 2) Regulations 2013 SI2013/3032.

151 For analysis see Morris, M, ‘Reforming laws on free movement will be a headache for any future government’, Democratic Audit UK, 1 April 2015 : http://www.democraticaudit.com/?p=12112 [last accessed 28 August 2015].

152 Ghimis, A, ‘Unconfirmed but still feared: the tidal wave of Bulgarians and Romanians one year later’, EPC Commentary, 15 January 2015 : http://www.epc.eu/pub_details.php?cat_id=4&pub_id=5192 [last accessed 28 August 2015].

153 See note 103 above.

154 ‘European court gives UK visa direction’, BBC News, 18 December 2014: http://www.bbc.co.uk/news/uk-30528189 [last accessed 28 August 2015].

155 Kostakopoulou, T, ‘Mobility, Citizenship and Migration in a Post-Crisis Europe’ (June 2014) Imagining Europe, p 5 .

156 For some of the first results of a research project that aims to fill this gap, the EU Rights Project http://www.eurightsproject.org.uk see C O’Brien, ‘The Pillory, the Precipice and the Slippery Slope: The Profound Effects of the UK’s Legal Reform Programme Targeting EU Migrants’ (2015) 37(1) Journal of Social Welfare and Family Law 111.

157 P Delivet, see note 28 above.

158 Ghimis, A et al, ‘Stigmatisation of EU mobile citizens: a ticking time bomb for the European project’ EPC Commentary, 24 January 2014 : http://www.epc.eu/pub_details.php?cat_id=4&pub_id=4096 [last accessed 28 August 2015].

159 See J Shaw et al, note 50 above, pp 31–33.

160 See note 150 above.

161 ‘Expulsion of homeless EEA national struck down on appeal’ Migration Pulse, 30 July 2011: http://www.migrantsrights.org.uk/migration-pulse/2011/expulsion-homeless-eea-national-struck-down-appeal [last accessed 28 August 2015]. See M Williams, Kapow to the GPOW: the “Genuine Prospect of Work Test” - (1) as a cause of homelessness for EEA migrants (2) arguments against the test (CPAG, April 2015): http://www.cpag.org.uk/sites/default/files/CPAG-Kapow-GPOW-APR2015_0.pdf [last accessed 28 August 2015].

162 Metropolitan Police, ‘Operation Nexus launches’, 10 November 2012: http://content.met.police.uk/News/Operation-Nexus-launches/1400012909227/1257246745756 [last accessed 28 August 2015]. For critical comment see J Camilo, ‘Operation Nexus and migrant communities: questions and concerns’ Migrants’ Rights Network, 25 February 2013: http://www.migrantsrights.org.uk/blog/2013/02/operation-nexus-and-migrant-communities-questions-and-concerns [last accessed 28 August 2015].

163 ‘Right to move: Seven strategies to improve the EU’s free movement rules’ (ECAS/EU Rights Clinic): http://www.righttomove.eu/wp-content/uploads/2014/10/7-Strategies-for-Free-Movement-1.01.pdf [last accessed 28 August 2015].

* Earlier versions of this article were presented at the UACES Conference in Cork, Ireland, September 2014 and the IMISCOE/EUI Conference on Mobilities, Florence, Italy, January 2015. I am grateful to the participants at those conferences and to the Editors of the Yearbook for their comments. The article draws on the results of two earlier projects: (1) an empirical research project which looked at the frictions between UK immigration law and EU free movement law entitled Friction and Overlap between EU Free Movement Rules and Immigration Law in the United Kingdom, Nuffield Foundation (Grant No OPD/36198). Final report: J Shaw et al, Getting to Grips with EU Citizenship: Understanding the Friction Between UK Immigration Law and EU Free Movement Law, Research Report, 2013, http://www.frictionandoverlap.ed.ac.uk/files/1693_fullreportlowres.pdf [last accessed 27 August 2015]; (2) a programme of work undertaken with Niamh Nic Shuibhne as Joint General Rapporteurs on Union Citizenship for the XXVI FIDE Congress, Copenhagen, May 2014. See N Nic Shuibhne and J Shaw, ‘General Report’ in U Neergaard et al (eds), Union Citizenship: Development, Impact and Challenges (DJØF Publishing, 2014). Notwithstanding the collective nature of these projects, all remaining infelicities are mine alone.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

Cambridge Yearbook of European Legal Studies
  • ISSN: 1528-8870
  • EISSN: 2049-7636
  • URL: /core/journals/cambridge-yearbook-of-european-legal-studies
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Keywords

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 9
Total number of PDF views: 97 *
Loading metrics...

Abstract views

Total abstract views: 475 *
Loading metrics...

* Views captured on Cambridge Core between September 2016 - 16th August 2018. This data will be updated every 24 hours.