The EU Border Code contains provisions allowing and enabling states to reintroduce border controls in the event of emergencies and occurrences that pose a threat to public safety and security.
The free movement of people was one of the main issues for the United Kingdom and those supporting Brexit in the 2016 referendum. It continues to be significant in the subsequent negotiations between the UK and the EU27. As the Brexit negotiations continue, the topic is receiving wider coverage. It is a remarkable story of evolution and integration to which the Member States, the Court of Justice of the EU and the other EU institutions have all contributed. Over the coming years, Australia will be negotiating preferential trade agreements with the EU and the UK, when (if?) the latter leaves the former. In the following sections, the current framework for the free movement of people in the EU, development of this framework and issues for further consideration are discussed.
A fundamental freedom
The free movement of persons is one of the four fundamental freedoms on which the internal market, the EU and the European integration project are based. Along with the free movement of goods, capital and the freedom to provide services, this freedom is a foundational principle of the EU legal order. Today, the free movement of people is based on citizenship of the EU which is provided for under Article 3(2), Treaty on European Union; Article 21 of the Treaty on the Functioning of the European Union (‘TFEU); Titles IV (Free Movement of Persons, Services and Capital) and V (Area of Freedom, Security and Justice) of the TFEU; and Article 45 of the Charter of Fundamental Rights of the European Union.
However, under the original Treaty establishing the European Economic Community (‘EECT’), commonly known as the Rome Treaty, this freedom only extended to workers (Article 48, EECT) and service providers (Article 52, right of establishment; Article 59, freedom to provide services). Consistent with the predominantly economic focus of that treaty, the four freedoms correlated to the economic division of the factors of production (land and the natural resources used to produce goods and services, labour, capital and entrepreneurship). Early in the development of the European Community, these treaty provisions were interpreted by the European Court of Justice as being directly effective: Member State nationals had the right not to be discriminated against on the basis of nationality and this corresponded with the Member States' obligations under the EECT not to discriminate against workers from other Member States. It is always worth remembering that these developments took place at a time when EU membership was first the original six and then nine Member States. There were still challenges facing those states in giving effect to the free movement of people but there was not the level of complexity that there is today with 28 Member States.
While citizens of Member States were using the doctrine of direct effect to rely on (then) Community law before their own courts, the European Commission and the Council of Ministers were concluding legislative instruments such as the Council Regulation ('EEC') No. 1408/71 on the application of social security schemes to employed persons, self-employed persons and members of their families moving with the Community; and Council Regulation (EEC) No. 574/72 laying down the procedure for implementing Regulation 1408/71.
These and other measures of EU legislation, together with the jurisprudence of the Court, created the legal framework for the operation of the free movement of persons within the EU. Nonetheless, this framework remained anchored to the person as worker. It was not until 1992 and the treaty revisions of the Maastricht Treaty that the free movement of persons became a freedom to which Member States' citizens were entitled by virtue of that fact, not because of their status as a worker.
Maastricht and EU citizenship
On 1 November 1993 the European Union came into being on the entry into force of the Treaty on European Union, more generally known as the Maastricht Treaty. That treaty introduced the concept of citizenship of the Union for Member State nationals. EU citizenship is an automatic consequence of holding the nationality of a Member State. EU citizens enjoy freedom of movement and residence as a result of their EU citizenship and not as a consequence of their status as worker.
The freedom to move and to reside in a Member State other than their own is a right also enjoyed by the family members of the EU citizen. This entitlement originated in directives (measures of EU legislation) adopted in the 1990s that granted residence rights to persons other than workers. The rationale for this legislation was to facilitate the movement of workers throughout the Community (and thus assist in the integration of the EU) by enabling their families to move and to remain with them. Unlike the earlier instruments of the 1970s (referred to above), these measures were directives, a more flexible legislative measure that is binding on the Member States regarding the end to be achieved by the directive but leaving it to the Member States to choose the manner in which to achieve that outcome. The Directives of the 1990s extended the residency rights of employees and self-employed who had ceased their occupational activity (Council Directive 90/365/EEC); and granted residency rights to students (Council Directive 90/366/EEC); and to nationals of Member States and their families who did not enjoy residency rights under any of the other instruments (Council Directive 90/364/EEC).
These instruments and others were consolidated, together with the jurisprudence of the Court, in 2004 in a single, comprehensive directive, the EU Citizens' Directive, on the rights of EU citizens and their families to move and to reside freely within the territory of a Member State other than their own (Directive 2004/38/EC of the European Parliament and of the Council). The aim of this directive was to actively encourage EU citizens and their families to move around the EU and to take advantage of their new-found citizenship. To that end, the directive seeks to reduce administrative formalities to a bare minimum, provide a better definition of the status of family members and to limit the scope for a Member State to refuse an EU citizen entry; or to terminate the right of residence. 'Family members' are defined under the directive to include: a spouse, registered partner where the legislation of the host Member State treats registered partnerships as equivalent to marriage; direct descendants under the age of 21 or dependents and those of the spouse or registered partner; older dependent direct relatives (e.g. parents) and those of the spouse or registered partner.
Under the directive, EU citizens acquire a right of permanent residence after a period of five years' uninterrupted legal residence (Article 16, Directive 2004/38/EC). This right is not subject to any conditions and the same rule applies to family members who are not nationals of a Member State and who have lived with an EU citizen for at least five years. The right of permanent residence can only be lost if the citizen is absent from the host Member State for more than two successive years. Despite or perhaps because of its ambitious aims, there have been considerable problems and controversy surrounding its implementation (see further, Ottavio Marzocchi, European Parliament Fact Sheet on the Free Movement of Persons, 06/2017, available at www.europarl.europa.eu).
Apart from the issues of implementation, the situation with Brexit reveals the underlying vulnerability of EU citizenship being predicated on Member State nationality. The interests of those EU citizens and their families who left the United Kingdom to live in another Member State, and those who moved to the United Kingdom from another Member State are central to the discussions regarding the terms of withdrawal from the EU. The UK Government seems determined to remove the UK from the reach and scope of the European Court of Justice. This means that 'EU27' citizens living in the UK once the latter has left, will no longer have the protection of that court; rather, they will be dealt with as foreigners, third country nationals, 'outsiders'. This is precisely what the EU Citizens' Directive was intended to overcome. The difference between EU citizens in this situation and genuine third country nationals is that the EU citizens relocated 'internally' as EU citizens; as a result of Brexit, they will be 'externalised'.
Schengen: what is it?
Another term that has become well-known, but perhaps not well-understood, is 'Schengen'. Schengen is a small town in Luxembourg where an agreement signed in 1985 concerned the removal of border controls at intra-EU borders. It was not a measure of EU law but an international agreement between Belgium, Luxembourg, the Netherlands, Germany and France. Most of the remaining EU Member States prior to the enlargement of the EU in 2004 (Italy, Portugal, Spain, Greece, Austria, Denmark, Finland and Sweden) all became signatories during the 1990s. The UK and Ireland were never signatories to this agreement.
The Schengen Agreement started as an intergovernmental, international agreement. However, the Schengen acquis (all the developments that have occurred under the Schengen Agreement) have since been incorporated into the EU legal system and body of rules (Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders ('Schengen Borders Code'). This repealed the earlier regulation, Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006). Although the UK and Ireland opted out of the Schengen Agreement, they participate in certain aspects of the Schengen acquis, e.g. the Schengen Information System ('SIS'), which enables police forces across Europe to share data on law enforcement, including court proceedings, missing persons and stolen cars. The Schengen provisions abolish checks at EU internal borders while tightening external border controls within the scope of one set of rules the EU Schengen Borders Code. The provisions are a common set of rules applying to people crossing the EU external borders, including stipulating the type of visa needed and how external border checks are to be conducted (EU Commission, Migration and Home Affairs: https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/...). There is also provision for enhanced police cooperation, stronger judicial cooperation, particularly in relation to extradition and the transfer of enforcement of criminal judgments.
EU Member States do not have a right to join the Schengen arrangements. They are subject to an evaluation procedure before joining and then periodically thereafter. Those that wish to join must have the capacity and willingness to take responsibility for controlling the external borders on behalf of the other Schengen States and for issuing uniform Schengen visas. 'Schengen states' must also be able to cooperate with the law enforcement agencies in other Schengen States to ensure high levels of security are maintained once internal border controls have been abolished. States must also be able to apply the Schengen acquis and connect to and use the SIS. Currently, Bulgaria and Romania are in the process of joining the Schengen area but Croatia and Cyprus have not yet joined. Non-EU states Iceland, Norway, Switzerland and Liechtenstein have also joined the Schengen Area.
The EU Border Code contains provisions allowing and enabling states to reintroduce border controls in the event of emergencies and occurrences that pose a threat to public safety and security. A number of states have reintroduced border controls as a consequence of terrorist attacks and threats in recent years (See further 'Schengen: Controversial EU free movement deal explained', 24 April 2016: www.bbc.co.uk/news/world-europe-13194723). It is almost certain that the UK and the EU27 will come to some arrangement by which they maintain a level of cooperation, particularly in using the SIS.
Third-country nationals and free movement
The Schengen Agreement and acquis also deal with simplifying visa requirements for third-country nationals in some instances. Nationals from certain countries are required to obtain a 'Schengen visa' which is recognised throughout the Schengen area. This, of course, relates to ordinary travellers, not refugees or asylum seekers. Chapter 2, Title V (Area of Freedom, Security and Justice) of the TFEU deals with policies on border checks, asylum and immigration.
Although this policy area has been an area of EU policy since the Maastricht Treaty of 1992, it has not been particularly visible or developed. The recent migration crisis in Europe has changed that and it is most likely that this is the next area of EU policy development and integration. A more detailed treatment of that question must wait for another occasion. However, in the context of the foregoing discussion in this article, a brief comment on asylum seekers and refugees is necessary.
The integration represented by the EU Citizens Directive and the Schengen Agreements presumes that those making use of the freedom to move are doing so for legitimate purposes and that security measures in place are sufficient to contain and remove those seeking to move for illegitimate purposes.
Where security measures and controls are insufficient, people pursuing illegitimate ends are potentially able to move freely around the EU and enjoy the sort of protection that EU citizens and their families enjoy. This may happen if they manage to satisfy eligibility criteria for obtaining nationality or permanent residency of a Member State. It may also happen, of course, if they avoid detection even if they are not lawfully in a Member State of the EU. Suffice to say, for the time being particularly, the free movement of people continues to be a work in progress. LSJ
This article was first published in the Law Society Journal in October 2017.