Free Movement and Migration
by Dr Hywel Ceri Jones
9th February 2018
It is time to put the record straight for the British public and reject the false message that the EU provides the open door to unbridled free movement or that it prevents the UK from deciding its own migration policy and system.
In what was often a confusing and misleading Referendum, I rarely heard discussion of the pros and cons of the EU’s internal market, or of its four core inter-related principles of free movement (capital, services, goods and workers). What a difference of mood from the 1980s and 1990s when UK authorities, employers, trade unions, universities and regional authorities embraced the 1992 target date to establish the EU’s single market, based on the proposals made by the then Tory commissioner Lord Cockfield, together with President Jacques Delors. During the referendum, I never once heard a commentator on TV or radio question or seek to disentangle the toxic bundling of the issues of free movement of persons, legal and illegal migration, asylum seekers and the global refugee crisis, border control, and fears of terrorism which had been deliberately jumbled, by Farage in particular, into one pot of negativity.
A distinction is rarely made between the reciprocal rights of EU citizens to move, live, work and study across the EU and the very challenging problems affecting Europe as a result of global pressures of migration resulting from wars and other humanitarian crises. Clarification of these issues will prove crucial to the negotiations as we witness EU citizens increasingly quitting the NHS and many other sectors in the UK, as well as UK citizens abroad in the EU fearing for their futures if they lose their rights to European citizenship. The added complication of the Government’s negative attitudes to such rights during any transition period does little now to persuade anyone of the welcoming stance of the UK as an open society.
Serious confusions about the issue of free movement still bedevil public consideration of the significance of the internal market, and should be replaced by informed public discussion of the relationship between the EU’s internal market and the UK’s right to set the terms of its own migration policy and system. Limited public discussion to date has been severely hampered by misleading presentation and interpretation of EU rules. The British public has been generally unaware of the foundation of these rules. They rest on Articles 48 and 49 of the EU’s founding Treaty of Rome (adopted in 1957) which apply to the question of free movement, and which the UK accepted when it joined the EEC in 1973.
Article 48 stated that “freedom of movement for workers shall entail the right (a) to accept offers of employment actually made (b) to move freely within the territory of member states for this purpose.” But Article 48 was qualified by the following Article 49 which stipulated that the EU could set up appropriate machinery to facilitate the achievement of “a balance between supply and demand in the employment market in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries.”
This balanced formulation in the EU regulations has been in operation since 1957, years before the UK joined the then EEC in 1973. Articles 48 and 49 of the original treaty to which I refer are firmly embedded in the present EU Treaty in its Article 45 (3). This article allows the Member States to limit the free movement of workers on the grounds of their public policy objectives. In practice, the UK has been able to pursue a managed migration policy to fit its own needs within the framework of what is now the EU’s single market, the biggest trading bloc in the world.
The Accession Treaties with the new Member States from Central and Eastern Europe set out the limits and conditions which Member States may impose on the free movement of workers coming from these States during a transitional period of 7 years. The UK then chose to welcome large numbers of workers from countries which had joined the EU as new members, whereas others chose to impose restrictions. It was in fact totally accepted and natural that each of the existing EU Member States would determine its own managed migration policy and system during that transitional period. Most of the existing Member countries chose to impose restrictions. The UK did not. As a Member State, the UK could and should have used the opportunity to specify and invoke its public policy objectives to limit the free movement of EU workers and their access to benefits for a lengthy transitional period. It was the UK itself which chose of its own will not to do so.
It is useful in the present context to recall the terms of the agreement reached in February 2016 as a result of the EU’s negotiations with former Prime Minister Cameron. This text confirmed that free movement “may be subject to limitations on grounds of public policy, public security or public health. In addition, if overriding reasons of public interest make it necessary, free movement of workers may be restricted by measures proportionate to the legitimate aim pursued. Encouraging recruitment, reducing unemployment, protecting vulnerable workers and averting the risk of seriously undermining the sustainability of social security systems are (recognised) reasons of public interest …The right of economically non-active persons to reside in the host Member State depends under EU law on such persons having sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State, and on those persons having comprehensive sickness insurance.”
The text of this agreement further confirmed that “Member States have the possibility of refusing to grant social benefits to persons who exercise their right to freedom of movement solely in order to obtain Member States’ social assistance although they do not have sufficient resources to claim a right of residence. Member States may reject claims for social assistance by EU citizens from other Member States who do not enjoy a right of residence or are entitled to reside on their territory solely because of their job-search. This includes claims by EU citizens from other Member States for benefits whose predominant function is to cover the minimum subsistence costs, even if such benefits are also intended to facilitate access to the labour market of the host Member States.”
This 2016 agreement is, of course, now in suspense as a result of the referendum and the subsequent triggering of Article 50 by the UK Government. Nevertheless, it confirmed what all 28 national leaders and the EU institutions considered to be the politically acceptable legal position a short time ago.
EU negotiators insist that the right to free movement of workers is an essential feature of the EU’s single market. But the above makes clear that such freedom is far from unconditional. Freedom of movement in EU legal terms is specifically tied to those who are economically active, seriously looking for a job, and having a genuine chance of finding one, and to economically inactive persons who are self sufficient. The need to balance labour supply and demand is fully recognised by the EU. Free movement is not and never has been uncontrollable by Member States. There is, I believe, ample scope in the present UK negotiations with the EU to reach a formal understanding which could respect the views of Member States, not only the UK, on this important issue of common concern.
It is certainly the case that migratory flows are a matter of public concern throughout Europe. However, Member States of the EU understand now only too well that managed labour mobility is necessary for the inter-dependent parts of the EU economies if they are to function smoothly and efficiently and enable workers to move easily between Member States when they wish to do so. The 10,000 lorries passing through Dover daily provide a striking indicator of how interdependent the UK and continental economies have become. Any UK system should be flexible enough to promote and sustain its economic dynamism, meeting the skill needs required of different sectors, whilst at the same time rigorous enough to inspire public confidence in its system.
If the Labour Party is to succeed in its pledge to put jobs at the centre of its strategy, it needs to take fully into account the record of the EU’s internal market in generating jobs, and its continuing reforms to improve the effectiveness of free movement of services, a top priority for the UK. It is now in a strong position to put the record straight on this issue and set out its definition of a managed migration policy and system for the UK, compatible with full participation and access to the EU’s internal market. An incoming Labour Government seeking to implement its 2017 Manifesto for “a new system based on our economic needs, balancing controls and existing entitlements” could decide to take the lead to reform and adapt present EU rules and still continue to enjoy fully the benefits of the EU’s internal market, with its huge impact on the number of jobs affecting so many sectors, the openness and quality of our labour market, as well as safeguarding and promoting the rights of workers.
Commitment to full and unfettered access to the EU’s internal market and recognition of the benefits of free movement would secure a positive win-win situation for all Member States, including the UK. In this framework, subject to the reforms advocated earlier, the specific sectoral concerns of the UK, as of other Member States, could be recognised by the EU, whereas it is now widely understood that exclusion from membership will simply not permit the UK to ‘cherry pick’ sectoral exceptions for its exclusive benefit.
At this critical time, the unambiguous commitment of the Labour Party to such an approach would prove invaluable in order to address the urgent staffing needs of the NHS, as well as our requirements for research scientists and teachers, trainers and students, construction and farm and agricultural workers, hotel and restaurant workers to name but a few. A clear response from the Labour leadership would respond to growing public concern in the UK to safeguard important sectors of our economy through welcoming the crucial contribution of qualified workers coming from our partner countries within the EU whilst also having our own distinctive migration policy setting out limits to be defined in the UK’s public policy provisions. The free movement provisions of the EU would then enrich the workforce of the UK in a number of critical sectors, with the necessary safeguard controls set by the UK and also assuring the incoming EU workers of their full rights as European citizens.
The Brexit campaign and results reinforced sharp divisions in this country. The 2017 Labour Manifesto can now be developed to present a convincing double narrative to underpin its future migration strategy. This would underline the positive economic, social and cultural impacts from the contributions of EU citizens and other migrants to this country, whilst also setting out policies to reinforce the infrastructures needed by local authorities in the UK to welcome and integrate incomers in localities whose local services are most affected. The UK ‘s room for manoeuvre in the negotiations on these issues would of course be much greater if the UK were to decide to remain in the EU and play a major role to secure the necessary economic and social reforms for the next phase of development post 2020, in the interest of both the UK and the EU.