Keeping them out or Locking us in? Legal implications of the Free Movement of Workers

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hari raithathaby Hari Raithatha

A simple solution to a complex problem – an internal market with free movement of goods and workers. A system with the optimum allocation of resources within the EU; where labour could be allocated across Europe as per the needs of individual member states. A catalyst towards greater European Integration.

As the UK prepares itself for the most important referendum in a generation, much of the debate surrounding Britain’s membership of the European Union has turned on this sole issue. Should nationals from other European member states have unfettered access to the UK? “Vote Leave” have stated that the current provisions for the free movement of workers are out of control and have detrimentally effected the UK’s ability to take migrants from outside of the EU while “Britain Stronger in Europe” have stated that Brexit will not deter migration to the UK and will hinder the ability of British citizens to access the European jobs market. While Vote Leave’s claims have been substantiated by report by the OECD (Organisation for Economic Co-operation and Development), which has suggested that net migration to the UK could fall by 84,000 per annum, the same report has also stated that this could come at a cost of three million UK based jobs that depend on the EU.

Article 45 TFEU

While the Free Movement of Workers remains one of the most well known and hotly contested provisions European law, the actual provisions found within the Treaty on the Functioning of the European Union remain unknown to many people. Article 45 allows, subject to limitations on the grounds of public health, security and policy, the free movement of workers within member states and the abolition of discrimination between workers of based on nationality regarding employment, remuneration and other conditions of work. In addition to this provision, Article 2(2) of Directive 2004/38 (or the Free Movement Directive) has extended this right of residence to the family members of EU citizens. In addition to these provisions, case law has provided guidance to the application of the free movement of workers in practice.

There are clear issues with this provision, namely the definition of worker. In the case of Hoekstra v. Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten [1964] the European Court of Justice (ECJ) determined that the definition of worker under Article 45 was an issue for the European law, rather than domestic law, given that nation states would have the power to undermine the law. It has subsequently been argued that the ECJ has over-broadened the definition of worker to the extent that a worker, working for a religious sect for payment other than money (accommodation and food) was deemed to be a worker for the purposes of Article 45 in Steymann v Staatsecretaris van Justitie [1988].

Another clear concern raised by the Vote Leave campaign are the grounds under Article 45(3) that a member state can deny the free movement of workers; Public Policy, Public Health and National Security.These grounds are limited to extreme circumstances only, for example a restriction on the free movement of workers on public health grounds in the case of an Ebola outbreak.

While it is arguable that the limited circumstances in which member states can deport or deny entry is contrary to the interest of states. It is clear that in this case, as just as in the wide definition of the term worker, that EU law has sought to protect the interests of workers and to restrict the instances in which derogations to the treaty provisions can apply. This concept is clearly exemplified in the joint cases of Adoui and Cornuaille v Belgian State [1982] wherein two French women were expelled from Belgium because they were suspected of prostitution. In this case the ECJ found that the expulsion on the grounds of public policy was wrong as the Belgian state would not impose similar draconian measures on its own nationals.

As the date of the referendum draws closer, British citizens must fully consider whether they wish to retain the right to the free movement of workers or not. While the law has allowed for relatively unrestricted immigration from European member states, British Citizens have equally benefited from freedom to find work within European member states, with roughly 2.2 Million British expats living across Europe. Voters cannot and should not underestimate the repercussions that Britain leaving the EU will have on the lives of both nationals and non-nationals alike and the uncertainty that brexit poses to immigration, citizenship and border issues within the UK.

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