A. Exploiting wiggle room and competing over meaning

Despite (or perhaps because of?) the extensive legislative and judicial activity that has occurred in the field of EU free movement law, fundamental uncertainties remain. Legal commentators readily acknowledge the point.Footnote ⁵⁷ Uncertainties are to be found everywhere in the free movement domain: in the EU level measures themselves; in the national implementing measures which, in the case of the UK (EEA RegulationsFootnote ⁵⁸ ) are highly complex;Footnote ⁵⁹ in the gaps between the EU measures and national implementing measures; in the case law of the Court of Justice. With such uncertainties, legal and related professionals possessed of ‘internal legal learning’Footnote ⁶⁰ hold a privileged position – courts, government lawyers and advocates, other legal professionals (eg working for NGOs or thinktanks), and of course legal academics. The process of dialogue between these groups is as lively at the EU level as it is in any other legal order, and it is even more complex than is the case in the municipal setting alone, because of the multi-level and plural nature of the legal system and structure of courts involving the EU and its 28 separate Member States. While the Court of Justice is the ‘final arbiter’ and authoritative interpreter of EU law, since it is given the role under Article 19 TEU to ‘ensure that in the interpretation and application of the Treaties the law is observed’, in practice the relations and dialogues between the different courts within the complex juridical structure of the EU are more complicated than that. Moreover, national data collected for FIDE highlight how national judiciaries have had to work hard ‘to discern and to follow the twists and turns of jurisprudence-in-progress at EU level.’Footnote ⁶¹

Member States will often exploit any uncertainties or space for unilateral action in order to restrict free movement rights. Sometimes, states may institute new measures, or attempt to develop certain arguments about the meaning of EU law, which will not ‘hold’, in the face of the prerogative of the Court of Justice to provide an authoritative interpretation of EU law, or indeed in the face of the determination of national courts to apply EU law as interpreted by the Court of Justice when cases are brought by aggrieved EU citizens. Nonetheless, the rhetorical and practical effects of making those arguments may be useful to the Member State that makes them, at least in the short term, especially if the approach can be seen, perhaps in the national media, as differing from the approach taken by the European Commission.

The point about the pliability of arguments can be illustrated with interview data from earlier research from a legal practitioner respondent who was asked about arguments that had been made by various barristers acting on behalf of the (then) UK Borders Agency and the Home Secretary,Footnote ⁶² in cases before both the national and European courts:

Political scientists Michael Blauberger and Susanne Schmidt have discussed the impact of uncertainty in relation to the heavily contested topic of access to welfare benefits on the part of EU citizens who are without work, or are seeking work, or are in low paid work, in the host state. They have argued that:

In what follows, I develop three brief examples that highlight how wiggle room and uncertainty are exploited over time within the domain of EU free movement law and how the costs of compliance are shifted effectively onto claimants.

The first example uses uncertainty generated by judgments of the CJEU concerned with the scope of EU citizenship itself, as opposed to the free movement rules. In the case of Ruiz Zambrano,Footnote ⁶⁵ the Court of Justice held that Member States are required to have regard to the interests of EU citizen children, even those who have not previously exercised their free movement rights, in order to ensure that they are not deprived of ‘the substance of their EU citizenship rights’, eg as a result of having to leave the territory of the Union. Thus in a case involving a Colombian citizen resident in Belgium, with two Belgian citizen children, the state was obliged to give a residence (and a work) permit to the third country national parent, in order to ensure that the children would receive the care and support that they needed as dependents. For the children could not reside independently of the parents, and would have been forced to leave had the parents been deported. Many Member States were initially hesitant to implement quickly what seemed to be quite a dramatic intervention by the Court of Justice in the sphere of national immigration law, constraining their capacity to deport a person on the grounds of the EU citizenship rights of his or her children, who were resident in the same EU Member State as that of which they had citizenship. In fact, subsequent case lawFootnote ⁶⁶ has demonstrated that the ruling may be restricted for the most part to its specific facts and may have less resonance than might initially have been thought. The CJEU emphasised the exceptional nature of what amounted to an intervention in national immigration law, and focused on a threshold of forced departure from the territory of the Union, before it could be said that the genuine enjoyment of the substance of the rights of EU citizenship could be said to be at risk. Evidence from national courts seems to indicate a nuanced approach to the challenges posed by Ruiz Zambrano highlighting considerable ‘wiggle room’ for national authorities and challenges for claimants wanting to show that their situation falls within the scope of Ruiz Zambrano.Footnote ⁶⁷ For example, a series of cases in the Netherlands highlighting a strict approach to the question of whether there is no other ‘real’ possibility for the child to stay within the territory of the Union other than the granting of a residence permit to a third country national carerFootnote ⁶⁸ has culminated in another reference to the CJEU to ascertain the remit of the Ruiz Zambrano case law.Footnote ⁶⁹ Likewise, in the UK, a further reference has been made covering in particular the issue of the coincidence of a Ruiz Zambrano type case with family breakdown and divorce, involving a third country national and an EU citizen from another Member State.Footnote ⁷⁰

As is implicit from these developments, it has been possible for the UK to limit the ‘Ruiz Zambrano carer’ rights under the amended EEA Regulations to circumstances where both parents would be obliged to leave the territory of the Union, thus effectively preventing the children from residing there.Footnote ⁷¹ In other words, Ruiz Zambrano cannot be the basis for circumventing restrictive national family reunion requirements, where one parent is a citizen and the other parent is a third country national, and the children are citizens of the state of residence. There has to be a threat to the residence of the child on the territory. Furthermore, the UK has restricted housing assistance and welfare entitlements for the Ruiz Zambrano carers, so that such families (if not in employment) would be restricted only to residual protection under s17 of the Children’s Act, which constitutes minimal assistance afforded by local authorities.Footnote ⁷² The lawfulness of this restriction under EU law, as well as the precise operation of the status of Ruiz Zambrano carer, including the key question of when the status arises, has been under review before the UK courts, with a reference to the Court of Justice to be anticipated in due course.Footnote ⁷³ Meanwhile, of course, claimants continue to carry the burden of proving that they are Ruiz Zambrano carers in the face of a sceptical executive, and of sourcing sufficient assistance from the state (if unable for whatever reason to find employment) to provide for their children.

We turn now to a second example of uncertainty arising in part from the language of the Citizens’ Rights Directive. Uncertainties are inevitable given the extent to which open-textured language, designed to ensure some degree of responsiveness to the different implementation contexts of 28 Member States, is employed within the EU measures and also because immigration as a legal field almost invariably contains provisions of great complexity, given the need to provide a code for decision-makers. For example, EU citizens who do not have a permanent right to reside must not become an ‘unreasonable burden’ (Article 14) upon social assistance system of the host state. If they do, they could be removed – although in practice there has, hitherto, been relatively little evidence of Member States actually removing such EU citizens in large numbers.Footnote ⁷⁴ But what is ‘unreasonable’? And what are – in the words of the Court of Justice – the ‘genuine and effective chances of being engaged’ (in employment),Footnote ⁷⁵ which prescribe the right of a person seeking employment to remain in the host state (although not necessarily to receive any out of work benefits). And what type of process of review must Member States undertake to ascertain whether individuals still qualify under the free movement rules?

The UK has been quite active in this area, challenging the extent to which the non-discrimination principle protects EU citizens resident in a host state, placing substantial burdens on individuals who are sometimes quite vulnerable and often have little opportunity to seek recourse to law. It has done so against the backdrop of an evolving case law of the Court of Justice on the scope of Member State obligations which has suggested that the Court is quite sensitive to the concerns of the Member States over so-called ‘benefit tourism’.Footnote ⁷⁶ There has been a series of announcements by UK ministers intended to reduce the benefit entitlements of mobile EU citizens, ostensibly in order to reduce the ‘pull factor’ (indeed ‘magnetic pull’Footnote ⁷⁷ ) apparently exerted by the UK benefits system.Footnote ⁷⁸ Since the end of 2013, changes have been made to the length of time that mobile job-seeking EU citizens must wait before being able to claim jobseekers’ allowance as a result of amendments to the habitual residence test that they must pass, and they have seen restrictions to their entitlement to housing benefit and to the period of time during which they may claim jobseekers’ allowance, capped initially at six months and then subsequently reduced to three months from November 2014 unless they can show that they have genuine chances of gaining work.Footnote ⁷⁹ In addition, the Government has introduced a minimum income threshold for EU citizens working in the UK, before they are defined as a ‘worker’ in accordance with EU law and before they are able to access other ‘in work’ benefits in the UK.Footnote ⁸⁰ Some or all of these steps taken by the UK Government may fall foul of EU law, and the European Commission may take enforcement steps, but as the example of an on-going enforcement action in relation to the right to reside test shows,Footnote ⁸¹ what may be most important to the UK Government at present may be that it has appeared to be ‘tough’ in the face of assumed benefit tourists and also in the face of possible intimidation by ‘Brussels’ (ie the European Commission). And from our perspective, what is interesting is how much it has been able to do by exploiting wiggle room within the existing EU regulations including the Citizens’ Rights Directive, the EU Regulation on Social Security Coordination,Footnote ⁸² and other provisions of EU law guaranteeing the right to equal treatment for mobile EU citizens. Sometimes ‘wiggling’ may spill over into non-compliance, but there is a grey area between the two that states can exploit.

The case of ‘abuse’ demonstrates this point very well. Along with the issue of welfare benefits, abuse was one of the topics that dominated the Balance of Competences Review report on the free movement of persons.Footnote ⁸³ The Report provides detailed evidence of the UK Government’s oft-articulated concerns about abuse and fraud involving non-EU citizens alleged to be taking advantage of EU law in various ways in order to circumvent UK immigration law. There is an EU law basis for this concern, in a broader doctrine of abuse of rights,Footnote ⁸⁴ and specifically in the Citizens’ Rights Directive.

Article 35 of the Citizens’ Rights Directive dealing with abuse provides an example of a provision opening up substantial and quite legitimate space for competing interpretations. It is worth quoting in full:

Each and every term in this provision can be the subject of conjecture. The UK Upper Tribunal case of Papajorgji Footnote ⁸⁵ closed off some of the ‘wiggle room’ being exploited by the UKBA, by insisting that Entry Clearance Officers (ECOs) examining whether to give a EEA family permit (ie a visa) to a third country national spouse to visit the UK with her EU citizen husband could not effectively put the burden of proof on the applicant to demonstrate that her marriage was not a marriage of convenience, or a ‘sham’ marriage. The UKUT re-emphasised its point – and its self-positioning within the orthodoxy of EU law as understood by the European institutions as opposed to the UKBA – by reprinting the guidance on sham marriages issued by that body as an annex to the judgment, in order to assist ECOs in their determinations.Footnote ⁸⁶

But scope for the UK immigration authorities insisting on the importance of the marriage scrutiny process was subsequently reopened by a report from the UK’s Independent Chief Inspector (ICI) of Borders and Immigration (the first such report by the ICI focusing directly on the ‘European’ casework of the Home Office) warning of a significant problem of abuse of the EU rules and their UK implementing measures as a result of sham marriages and marriages by proxy.Footnote ⁸⁷ In other words, the fear is being raised that EU law and its benefits in relation to family reunion are being used to evade strict UK immigration controls (income requirements in particular) on marriage migration and family reunion. The ICI has reported – and indeed this point has also been picked up by the Home Affairs Committee of the House of CommonsFootnote ⁸⁸ – that the problem seems to occur where naturalised EEA citizens marry third country nationals (often from the same national or ethnic group), although this conclusion seems to be an inference that is drawn from the ICI’s inspection of a sham marriage operation,Footnote ⁸⁹ rather than a finding based on a proper body of evidence.

These reports and the other materials will continue to be used by the Home Office and by what is now UK Visas and Immigration (UKVI) as justification for a redoubling of their scrutiny and control efforts internally and externally. As vindication of the current approach, the UK authorities will seize upon the ICI’s finding that over 89% of refusals of a family permit based on a belief on the part of the Entry Clearance Officer that there was a marriage of convenience were found to be reasonable on a review of the evidence during the inspection. That approach includes the introduction of additional measures in 2014 penalising those who sponsor or enter into sham marriages.Footnote ⁹⁰ Such arguments can thus continue to be used in order to justify the high rate of refusals of requests for EEA family permits on the part of third country nationals married to EU citizens exercising, or wishing to exercise, their free movement rights in the UK, and the precautionary approach, arguably in violation of EU law, under which the UK authorities continue to require the submission of documents which seem to go beyond what is permitted in EU law.Footnote ⁹¹

The third and final example of the exploitation of ‘wiggle room’ relates to the so-called ‘Surinder Singh route’ within the free movement rules, which concerns the extension of the protective scope of ‘free movement’ to cover EU citizens not only when they leave their home state to live and work in another Member State, but also when they return to their home state. Because of the restrictiveness of national immigration law in relation to family reunion, in particular the rather high income or savings levels which are required for a family comprising a UK citizen and a third country national partner or spouse to enjoy residence together in the UK,Footnote ⁹² many claimants and their advisers have looked to EU law as a possible avenue for achieving reunion by bringing the UK citizen under the protective umbrella of EU law. The case of Surinder Singh Footnote ⁹³ seemed to provide the answer, as it concerned the possibility for an EU citizen who had exercised his or her right to free movement to rely, when returning to the state of which he or she is a citizen, on the provisions of EU law as regards family reunion in order to enable the third country national to obtain the right of residence when returning to the UK with the returning UK citizen. This approach to navigating the restrictions of national immigration law on family reunion has also been quite common in Denmark and the Netherlands which also have restrictions on family reunion between citizens and third country national spouses.

Building on the basics set out in Surinder Singh, the Court of Justice has further clarified the conditions under which this right under EU law may be exercised in the case of O & B,Footnote ⁹⁴ decided in 2014. In her Opinion,Footnote ⁹⁵ Advocate General Sharpston suggested that the appropriate test regarding the movement of the EU citizen to another state would be whether the host state had become where the ‘habitual centre of his interests lies’ (before the return to the home state). However, this test did not meet with the approval of the Court of Justice in its judgment, which offered a clearer set of criteria. It referred to a requirement of ‘genuine residence’ in the host state, which it interpreted as a minimum period of three months (ie beyond the initial period of three months to which no conditions apply (Article 7(1) of the Citizens’ Rights Directive), but that weekend visits and holiday visits did not contribute to this ‘genuine residence’. It also stated the requirement that family life should have been created or strengthened during the time spent in the host state. In other words, it focused on the relationship, rather than the behaviour of the EU citizen, and it did not require some form of ‘integration test’, which is what the ‘centre of life’ test could be interpreted as being. The Court also made clear that the scope of Union law does not extend to cover abuses, where – despite formal observance of the requirements of free movement – the purpose of the rules is not attained, and there is, second, ‘a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it.’Footnote ⁹⁶

Over the years, the UK has rarely been swift in its implementation of Court of Justice case law requiring legal changes at the national level. This is illustrated by its conduct after the Metock case which made it clear that the UK could not maintain a previous requirement on the third country national family members of EEA citizens moving to the UK that they must have been previously resident in another Member State with the EEA family member.Footnote ⁹⁷ This reluctance to implement has been described as ‘heel dragging’ by a practitioner respondent:

In stark contrast, the UK was very hasty in its implementation of new rules and guidance on the ‘Surinder Singh route’. Regulation 9 of the 2006 EEA Regulations was amended with effect from 1 January 2014.Footnote ⁹⁸ The amendments were laid before Parliament on 5 December 2013 even before the Advocate General’s Opinion (12 December 2013) and came into force before the judgment of the Court of Justice (12 March 2014). Presaging the terms of the AG’s Opinion, the new Regulations implement a ‘centre of life’ test, which also takes into account where the principal residence of the EEA citizen is. In a letter responding to a complaint from a UK citizen, the European Commission swiftly indicated that it did not see the UK’s approach as being in compliance with the CJEU case law, which means that it may eventually bring an enforcement action against the UK if it refuses to change its rules.Footnote ⁹⁹ It is more likely that these will be tested in the UK and European courts in cases brought by aggrieved UK citizens and their partners long before any enforcement action reaches the Court of Justice, although once again the burden of compliance falls effectively on the applicants, not the UK.

B. Reading across: how immigration law seeps into free movement law and brings external resources into play

A major theme of earlier work on the relationship between EU free movement law and national immigration lawFootnote ¹⁰⁰ concerned the impact of the ‘mindset’ of immigration law and those responsible for its application. Immigration law offers a framework of narrowly drafted rules, systems of permissions and substantial scope for executive discretion premised upon the centrality of national sovereignty in this field. This mindset has ‘seeped’ into the field of free movement law, which offers a framework of general rules, principles and rights with only very limited scope for executive discretion within a structure of shared or pooled sovereignty with other Member States, premised on a notion of economic integration and – since 1993 – a notion of ‘European’ citizenship. Evidence of how the ‘immigration’ approach, especially to the control of borders, influences decision-making on free movement can already be seen in the earlier discussion of the approach to EEA family permits and so-called sham marriages in the previous section. Indeed, there is a close relationship between the two strategies of ‘exploiting uncertainties’ and ‘reading across’, although in some cases the reading across of immigration law quite simply involves poor decision-making by national authorities which takes into account inappropriate elements which have no place in EU law.

Of course, this is not to claim that there is no overlap between immigration law and free movement law. There are some fields where Member States are explicitly permitted to apply their underlying immigration law in areas which touch upon free movement rights. One such example is Article 3(2) of the Citizens’ Rights Directive in relation to the admission of extended family members of the EU citizen to the host Member State. And nothing prevents Member States from using the same administrative and judicial machinery to manage both ‘immigration’ and ‘free movement’, as the UK, in common with many Member States, in large measures chooses to do.Footnote ¹⁰¹ Only once the recently adopted Directive 2014/54/EU on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workersFootnote ¹⁰² comes into force in 2016 will the UK and other Member States be required to have specific institutions tasked with the role of providing assistance to Union workers and members of their families. However, earlier research has shown that the impact of immigration law on free movement law goes beyond the sharing of institutions, or instances where it is specifically permitted.

In earlier research, we found in interviews that legal practitioners often felt that tests or standards developed within the framework of immigration law – eg in relation to a person’s poor ‘immigration history’ or in relation to their credibility as a witness – were readily carried across into the decision-making and adjudication processes in relation to free movement, in places where they did not belong:

Some interview respondents also suggested that this was a problem in judicial decision-making, particularly at the first tier tribunal level:

The weight that arguments about the vulnerability of the UK as a destination for irregular immigration can often carry in political and legal discourse within the UK becomes obvious from a review of the 2014 McCarthy case in the Court of Justice, along with the precursor ruling in the English High Court when the case was referred to the Court of Justice. This case – at both the national and the EU levels – saw the UK government continuing to advance the legal argument that it could refuse to recognise residence cards issued by (most) other Member States,Footnote ¹⁰³ despite what many believed to be the clear provisions of the Citizens’ Rights Directive, and indeed the compliance of almost all Member States with the interpretation of the relevant provisions given by the European Commission.Footnote ¹⁰⁴

The UK refused to accept that Article 5(2) of the Citizens’ Rights Directive requires, in the case of third-country national family members of EU citizens travelling to the UK, that those who held a residence card of another Member State must be exempted from any visa requirement, and that this provision and only this provision, as implemented in national law, would govern the situation of such family members. This meant that it continued to require the Colombian spouse of a UK/Irish dual citizen resident in Spain to obtain a so-called ‘EEA family permit’ every time she wanted to travel to the UK with her husband. Such EEA family permits, which are the UK’s variant on a visa for third country national family members of EEA citizens, have a six month duration, and obtaining them meant, for this third country national, travelling from the family home in Marbella to the UK Embassy in Madrid for a personal interview. Each time she applied, Ms McCarthy Rodriguez also had to fill in an extensive form providing ab initio information about her family relationship and about her finances. Furthermore, the Home Secretary had issued guidance to airlines indicating that failure to ensure that an EEA family member boarding a flight to the UK had a valid EEA family permit would attract carrier sanctions as per immigration legislation. The McCarthy family sought to challenge these arrangements, but brought the case not in the Tribunal but as a judicial review action, which meant that it started in the High Court in London. They requested that the national court refer the relevant questions of EU law to the Court of Justice, on the grounds that the issues remained unclear and could not be resolved in the national court without clarification of key questions by the Court of Justice.

Understood as an attempt to interpret EU law, the judgment of Mr Justice Haddon Cave makes interesting reading. The judgment starts off with an extended, and almost breathless, consideration of evidence given by the Secretary of State and her officials to demonstrate her fears that ‘residence cards’ issued by other Member States were entirely unsatisfactory substitutes for UK-issued EEA family permits, because of the risk of fraud. The cards issued by almost all Member States did not meet international standards for personal documents, said the Home Secretary.Footnote ¹⁰⁵ However, without access to the full text of the detailed submissions made, it would be hard to judge to what extent they were indeed composed of robust evidence, as opposed to being mainly assertions based on a relatively thin evidence base.Footnote ¹⁰⁶ Moreover, no evidence on the same questions seems to have been presented to the national court by the applicants, since they concentrated, perhaps unsurprisingly, upon the individual effects of the UK’s approach, as opposed to the alleged systemic problem. Against that backdrop, the judge professed himself to be persuaded that the UK was currently at significant risk because those fraudsters already exploiting the route of sham marriage to evade immigration restrictions could shift their business into the field of residence card fraud. Accordingly, he concluded:

The judge then went on to consider the parties’ submissions on the law, and it is perhaps unsurprising that he found on every point in favour of the Home Secretary, given his positive engagement with the evidence that had been led on her behalf about the scope of the threat from fraud. The issue was whether the UK could find some justification for continuing to refuse to recognise residence cards issued by other Member States and to insist that family members of EEA nationals obtain EEA family permits. He concluded that Article 35 of the Citizens’ Rights Directive could be used not only to justify action against an individual thought to be abusing his or her rights under EU law, but also to justify a generalised policy of refusing to accept certain documents because of a systemic risk of abuse – but he did so without considering any of the EU law materials concerned with abuse of rights which focus on individual not systemic risk.Footnote ¹⁰⁸ Given his findings on the evidence, he was clearly prepared to accept that there was such a systemic risk. Until the position changed at the EU level (ie to force the Member States to issue fraud-proof residence cards), the judge found that it was ‘reasonable, proportionate and necessary for the UK Government to require all non-EEA family members to obtain prior entry clearance’.Footnote ¹⁰⁹ He furthermore found that Protocol 20 permitting the UK to maintain its border controls was a broad and permissive document which ‘effectively sweeps EU law aside as an obstacle to the exercise of the [the UK’s] discretion’ in relation to controls to be applied at frontiers.Footnote ¹¹⁰ But despite having made those findings, Haddon Cave J decided that his conclusions did not satisfy the ‘acte clair’ test of ‘no real doubt’ that he set himself with regard to the interpretation of EU law necessary for the purposes of reaching a final judgment. Accordingly, he went ahead and submitted a reference for a preliminary ruling to the Court of Justice on whether the UK’s position was lawful having regard to Article 35 of the Citizens’ Rights Directive and Protocol 20. In view of the learned judge’s somewhat scattergun approach to EU law, this conclusion came as something of a relief.

As befitted its significance and novelty, the case was heard by the Court’s Grand Chamber. To put it another way, while informed EU law opinion was doubtful about both the case put forward by the UK Government and by the ruling of Mr Justice Haddon Cave, nonetheless there was no authoritative ruling of the Court of Justice on which to draw and these are certainly important and sensitive matters, and one was now needed. Both the Court and – before it – the Advocate General reached opposite conclusions on EU law to those put forward by Haddon Cave J. The Court concluded as preliminary point that the Citizens’ Rights Directive was applicable, even though McCarthy concerned an EU citizen entering a Member State of which he was a citizen with his third country national family spouse, but from a state (Spain) where he had exercised his right of free movement. That meant that both Mr McCarthy and Ms McCarthy Rodriguez were ‘beneficiaries’ under the Directive, and hence able to benefit from Article 5, which exempts third country nationals who have a residence card from the need to hold a visa.

As to possible restrictions on entry, the Court pointed out that these were only possible under Article 27 (public policy, public security and public health grounds) or under Article 35 (abuse of rights). In both cases, the Court emphasised that the refusal to allow the third country national to enter the territory of the Member State must be based on an individual assessment of risk, or fraud, and must not be part of a systematic policy, even if justified by an alleged systemic risk. The Court emphasised how the Directive confers rights on an individual basis, with redress against a denial of those rights possible under the provisions of the Directive in accordance with procedural safeguards. Thus without an individual examination of the case, a Member State could not deny the right to enter its territory of the third country national family member of an EU citizen, holding the residence card of a Member State. In the absence of a specific provision in the Directive making provision for such a systematic denial of rights, a Member State could not simply rely on what it regarded as a pattern of abuse, without enquiring into individual cases.

The Court reached a parallel conclusion in relation to the powers left to the UK under Protocol 20, so far as concerned the control of the UK frontiers. The provisions in question merely allow the UK to take such measures as are necessary to ensure that persons entering the UK have a right to do so under EU law (just as the Schengen states similarly have such a right if border controls are temporarily reinstated for any reason, as happens quite regularly). This means checking whether persons in the situation of Ms McCarthy Rodriguez are in possession of the documents mentioned by Article 5 of the Directive (ie passport and either visa (if required) or residence card). The UK can check the authenticity of individual documents. It cannot refuse to recognise an entire class of documents. The Court did not refer to the reasoning of the national judge, but one can only imagine what it thought of his argument that Protocol 20 simply ‘sweeps away’ EU law replacing it with a national right to control the frontiers.

The judgment was not welcomed by the UK government, which professed itself to be ‘disappointed’.Footnote ¹¹¹ Newspaper coverage of the judgment was predictably unclear, much of it confusing the issue of entry and the question of residence.Footnote ¹¹² The ruling provided an opportunity for UKIP to attack the Government on the grounds of the laxness of EU law relating to residence permits.Footnote ¹¹³ A first reaction by UKVIFootnote ¹¹⁴ indicated that the government wished to wait for the national court ruling in the case before implementing the ruling in full, and that it would be inclined to take a narrow perspective on the ruling, limiting it to its facts where an EU citizen resides in a country of which he or she is not a national, where the third country national has been issued with a residence card in that state, and where the third country national is travelling with, or to join, the EU citizen in the UK. In fact, the UK did quite rapidly, and in a low key manner, implement the judgment through a further round of amendments to the 2006 Regulations, extending the previous exemption given to holders of German and Estonian residence cards to holders of residence cards issued by any EU Member States.Footnote ¹¹⁵ However, it did so in the most restrictive way possible by limiting the recognition of residence cards only to those issued by Member States under EU law. Thus third country nationals residing with their family members in the Member State of which the EU citizen is a national, and holding residence documentation issued under national law, will continue to need EEA Family Permits if they visit the UK with the EU citizen family member. We remain a long way away from the mutual recognition of national immigration documentation which might ease the burden for third country nationals moving within the EU – except in cases where the EU’s Long term Residence Directive (from which the UK and Ireland are opted out) applies.Footnote ¹¹⁶

The ‘read across’ from immigration law is also visible in the impact of the increasing bureaucratic procedures that the UK imposes on those seeking to rely on their EU treaty rights. In January 2015, the Home Office introduced a 129 page form (subsequently extended to 137 pages, and then reduced in July 2015 to 91 pages plus guidance notes),Footnote ¹¹⁷ replacing a previous 35 page form, for family members of EEA citizens wishing to apply for residence cards (third country nationals) or registration certificates (EEA citizens). Such a form is bound to have a dissuasive effect on some applicants submitting applications for registration certificates or residence cards, and equally will lead to many rejections because of the complexity of the questions leading applicants to make mistakes. Some of these rejections will be challenged, quite probably successfully, because of the disproportionate and intrusive nature of the UK demands, or because the decision-making process was flawed. Even more frequently, refusals lead to repeated applications, with additional costs for applicants. Ironically subsequent government guidance has confirmed that the use of the form is not compulsory.Footnote ¹¹⁸ However, it would be a brave immigration lawyer who advised her client not to bother using the form. One immigration commentator and campaigner described the introduction of this form as amounting to the transference of the ‘hostile environment’,Footnote ¹¹⁹ which was promised as a means of keeping immigrants on the ‘straight and narrow’, into the sphere of EU free movement as well.Footnote ¹²⁰ In that sense, the legal dissonance of EU free movement law and UK immigration law which strikes the legal scholar on first examination of the relationship between the two fields of law appears to have been entirely washed away by a high degree of political consonance between the two areas, when the perspective and approach of the UK authorities is examined in detail.

C. Changing the terms of the debate and creating new legal resources: seeking legal change

The third strategy that governments pursue in order to navigate a course between law and political truth is that of seeking legal change. In this section, we focus on legal change that would require action at the EU level, including some sort of concerted effort on the part of the Member States. Examples of solely domestic change were already highlighted in Section A. Legal change includes legislative reform, treaty reform and also efforts to persuade the Court of Justice to change the tack of its case law.

One example of the latter would be the progressively narrower interpretations that the Court has given to scope of its ruling in the Ruiz Zambrano case, noted in Section A above. These may have come in the wake of domestic criticism of this judgment. Such a retrenchment may limit the need for domestic changes as a result of what were initially seen as radical developments of EU citizenship principles by the Court of Justice.Footnote ¹²¹ It has also been argued that the Court of Justice has, through its judgment in Dano allowing Member States to refuse to give benefits to mobile EU citizens who do not have a right of residence under any of the categories provided for in the treaties or legislation, implicitly overruled the earlier judgment in Brey Footnote ¹²² concerning the obligations on Member States in limited circumstances to give social assistance benefits to EU citizens.Footnote ¹²³ As has often been noted, judges do read newspapers, and are not impervious to arguments either that EU law has become overstretched, or that their rulings have created untoward difficulties at the national level. In fact, changes to the terms of EU law because of a shift in Court of Justice case law is by far the most common example of legal change at the EU level.

Other types of changes would be those that could be brought about as a result of amendments to the EU-level implementing rules such as amendments to the terms of Directive 2004/38 (which would require a qualified majority vote at the level of the Council of Ministers and the support of the European Parliament). Some of the changes that have been put on the agenda would, however, require treaty amendments (whether via the full or a simplified treaty amendment process), which in turn would require unanimous consent of the Member States and domestic ratification in accordance with national constitutional provisions, and thus much more complex and potentially expensive legal processes at both the EU and national levels, as well as the political costs that are associated with such change. Understandably, legal scholars sometimes disagree about what could be achieved by legislative change and what might require treaty change. It is important to note, of course, that any attempt to exempt the UK alone from the effects of free movement law would definitely require the unanimous assent of all Member States, as it would involve a change to the primary treaty level rules, just as other opt outs have been enshrined in previous treaties and protocols. Moreover, opening up the treaties to some amendments would surely lead to a wider set of demands for changes from Member States that hold objections to other aspects of EU law, and which would place these on the table as bargaining counters against any changes to EU free movement rules favoured by the UK.

The backdrop to debates about legal change in the UK is provided by the Review of the Balance of Competences,Footnote ¹²⁴ which was foreseen in the 2010 Coalition Agreement between the Conservative and Liberal Democrat parties.Footnote ¹²⁵ The Review was launched by the then Foreign Secretary William Hague in July 2012. Organised in a series of waves or ‘semesters’, evidence was invited, consultations with stakeholders organised, reviews prepared within government, with different departments taking the lead, and reports then published. Most of the reports were published in the same sequence as they were commissioned. The report on the Free Movement of PersonsFootnote ¹²⁶ was not published as expected with the second wave of reports, in February 2014, but was held over until the third ‘semester’, and published finally in July 2014. Rumours abounded about the delays, with the press suggesting that its conclusions were challenged internally by Ministers, especially Home Secretary Theresa May, on the grounds that they were too positive about the benefits of free movement, and did not dwell sufficiently on the purportedly negative aspects.Footnote ¹²⁷

The rumours were largely confirmed some time after the publication in July 2014, when a Liberal Democrat Coalition Minister (Lord) William Wallace was quoted in The Observer:

In fact, the final report is on the whole a balanced and reasonable examination of the complex field of free movement of persons. As with the other reports, the report does not articulate a wholesale clamour for a transfer of powers back to the UK. Moreover, none of the reports offers evidence as to what a renegotiation of the terms of the UK’s membership of the EU might involve. A first assessment of the reports came from House of Lords Select Committee on the European Union, which read the reports as they came out, and wrote back to the Minister for Europe on each occasion with some initial thoughts. In relation to the third tranche of reports, which included the one on the free movement of persons, the Committee commented, inter alia in relation to that report, that ‘We found those produced for the third semester to be largely balanced and evidence-based. We sensed a greater tendency, though, for the Government position and or particular Government negotiation achievements to be highlighted.’Footnote ¹²⁹

The members of the Committee were particularly unhappy at the failure of the reports to make sufficient use of their own much praised work, although this was not a criticism directed towards the report on the free movement of persons. However, the Committee was concerned about the evidence base for that report:

The point is echoed by the commentary produced on the Review process and outputs by a team coordinated by the Brussels-based thinktank, the Centre for European Policy Studies. This commentary notes with relief that ‘The report on free movement presents a far broader range of facts and analysis on this sensitive topic than is usually in evidence in Britain’s debate on Europe.’Footnote ¹³⁰ It notes that the Report goes on to consider some sensible and perhaps conceivable reforms around social security issues reflecting the greater diversity of an EU of 28 Member States. However, the commentary on the Review concludes:

The House of Lords Select Committee also conducted a short inquiry into the Review at the beginning of 2015,Footnote ¹³² culminating in a Report published in March 2015.Footnote ¹³³ The Select Committee Report focused on two concerns: while the publication of the reports and the evidence submitted to the Review was to be welcomed, the Government had failed to draw out a synthesis of findings, and thus to make the material more readily available for a wider audience which would be eager to hear more fully reasoned argument about the pros and cons of the UK’s EU membership than is generally presented in media and political debates. The second concern returned to the issue of evidence. The Committee quoted with approval Thomas Horsley’s evidence to the Committee on this question, namely that ‘any impression that these reports might have been doctored by political actors undercuts some of the real value they should have’.Footnote ¹³⁴

While acknowledging that point, it is important to see the Review of Competences in a broader political context in which, in the case of the free movement of persons, the feasible options for reform and renegotiation have been gradually narrowed down, while a number of stakeholder audiences, including the UK’s fellow Member States as well as domestic political actors, have been the recipients of key messages. The range of audiences for proposals for EU level change is certainly greater than in respect of the exploitation of uncertainties or wiggle room, discussed in Section A above, which is primarily aimed at domestic audiences. Many of the initial suggestions floated for reform concentrated on importing ‘immigration’ approaches into the field of free movement.Footnote ¹³⁵ There were proposals to impose quotas on EU citizen workers, to require a points-based system in order to eliminate much mobility by low-skilled or semi-skilled workers (or those prepared to be employed in such posts regardless of their skill or qualification level), and to allow for the possibility of an ‘emergency brake’ should Member States find that their domestic labour markets are being badly disturbed as a result of very high migration flows. All of these options were put forward, mostly informally, by a variety of actors,Footnote ¹³⁶ although not by government ministers themselves – or at least not in public. Reactions to these ‘kite-flying’ exercises emerged – sometimes publicly, sometimes ‘by attribution’ – from other Member States and the EU institutions. For example, German Chancellor Angela Merkel was ‘reported’ as stating that she would prefer the UK to exit the EU than for the free movement of persons – a cornerstone of the EU’s single market – to be effectively eliminated by measures such as quotas.Footnote ¹³⁷ Commission President José Manuel Barroso was less circumspect, with his negative reaction to quotas or similar being made in public.Footnote ¹³⁸

A cautious appraisal of Prime Minister David Cameron’s options also came in October 2014 from the thinktank Open Europe,Footnote ¹³⁹ which is known to be sympathetic to the idea of renegotiation, but which has long warned that opting out of free movement altogether must necessarily mean leaving the EU.Footnote ¹⁴⁰ Indeed, it had previously issued a set of proposed reforms for EU free movement that moved away from the immigration sphere towards the welfare sphere. It argued that these could largely be achieved by means of legislative amendment, not requiring treaty amendment.Footnote ¹⁴¹ These proposals (via a new Directive on Citizenship and Integration) focused on prioritising the access to the welfare state by national citizens over EU citizens, requiring a longer period of work and residence in the host state on the part of the latter (three years) before either out of work or in work benefits would be available. While EU citizen children could access childcare and schooling, healthcare costs for the first three years would be borne by the home state, not the host state. In addition, national laws protecting the domestic labour force from the effects of the exploitation of migrant labour would be ring-fenced from most of the effects of EU law, except the principle of non-discrimination. All of this is intended to offset what the paper suggests are the ‘contradictions, inconsistencies and perverse incentives created by existing EU law on free movement and citizenship’.Footnote ¹⁴²

Press reports made clear that Open Europe’s suggestions were being taken very seriously by Number 10,Footnote ¹⁴³ in the preparation of a major speech delivered at the end of November 2014 by Prime Minister David Cameron setting out his (ie his party’s) negotiating options for free movement.Footnote ¹⁴⁴ It was obvious that the speech itself drew on Open Europe’s work in focusing on the so-called ‘pull factors’ and incentives for free movement which are not seen as fair towards a country such as the UK, and in the question and answer session with journalists which followed, Cameron cited Open Europe’s research and described the evidence as ‘pretty compelling’. Cameron effectively made the reform of free movement one of the centrepieces of the proposed renegotiation which would occur in the event of a Conservative Party victory in the May 2015 General Election, declaring changes to the welfare arrangements to be an ‘absolute requirement’.Footnote ¹⁴⁵ In other words, failure to deliver on elements of reform that would convince a sceptical press as well as many eurosceptical members of his own party would push him towards having to advocate the UK’s withdrawal from the EU in the promised in/out referendum. However, by that stage those elements of the strategy that represented a direct attack on the principles of free movement had been dropped, in favour of a focus on welfare benefits for low income earners.

The key planks of Cameron’s speech have been subject to review and further scrutiny, not only by Open Europe, which unsurprisingly found much to be happy about,Footnote ¹⁴⁶ but also by critical commentators such as Steve Peers, who reached the conclusion that much more would require treaty amendment than Open Europe suggested.Footnote ¹⁴⁷ With treaty amendment, the calculus changes, in terms of support from other Member States. In fact, the proposals are not limited to the welfare sphere, but do still contain further efforts to read across immigration principles into the area of free movement, which draw direct inspiration from the strategies of resistance described in the previous two sections. They include restrictions on in and out of work benefits for EU citizens for four years after arrival, removal of jobseekers if they do not find work after six months, the requirement that jobseekers should have a job offer before moving to the UK (which seems to contradict the previous proposal), removing the payment of child benefit in respect of children residing in a different state,Footnote ¹⁴⁸ and a raft of restrictive measures on the entry of third country national family members, on the deportation of EU citizen offenders, and on the removal of rough sleepers and beggars.

It is sometimes difficult to untangle Cameron’s proposals into those that are new, and those that are already underway, such as the removal of taxpayer support from jobseekers.Footnote ¹⁴⁹ This is also true in respect of action against homeless and destitute EU citizens, where substantial new measures have already been introduced. A new Regulation 21B was added to the 2006 EEA Regulations with effect from 1 January 2014,Footnote ¹⁵⁰ providing that those EU citizens who have been subject to removal under administrative powers on the grounds that they had no right of residence (eg because they had become homeless or were begging) can be precluded from returning to the UK for twelve months unless they can show that they are genuinely exercising treaty rights. It remains to be seen whether these new rules will be successfully challenged under EU law, given that EU law makes it clear that expulsion cannot be the automatic consequence of recourse to the welfare system of the host state and that a person must not be expelled if he or she is a workseeker with genuine chances of being engaged. Furthermore, at first sight re-entry bans seem to fall foul of Article 15(3) of the Directive which states that such bans can only be imposed if the expulsion was for some justified reason of public policy, public health or public security. Does Regulation 21B operate as a re-entry ban? One can assume that what Cameron proposes would be collective action at the EU level to permit such measures to be taken, which would render the question of whether the new UK measures comply with EU law no longer relevant.

Whatever the prospects for Cameron’s menu of options being adopted at the EU level, they have actually been most successful at setting the terms of debate quite at the national level, with – for the most part – Labour and Liberal Democrat proposals and manifestos shadowing much of Cameron’s restrictive rhetoric on welfare benefits, if not on the issue of administrative removals and re-entry bans.Footnote ¹⁵¹ This has been followed by a widespread political consensus, in the wake of the Conservative victory in the 2015 General Election, that an in/out referendum should be held. Thus we may soon need to consider the even more uncertain question of what would happen in the event of a UK in/out referendum leading to a vote to depart the EU, such as the impact upon the status of other EU citizens in the UK and of UK citizens resident in other Member States.

But until such time, it is important to note that by contrast with the measures discussed in Sections A and B, of course, the proposals considered in this section are just that: proposals. They do not directly change the terms of the legal status for EU citizens, although they can and do affect the tenor of the political debate, especially if they are thought of as fostering some sort of race to the bottom, involving ever greater stigmatisation of EU citizen migrants.Footnote ¹⁵²