Isobel Williams- AA (Somalia) v Entry Clearance Officer

During the European Parliament campaign, the economic, financial, social and identity crisis, in addition to the rise of populism, provided a backdrop for migration to come to the fore. This, together with concerns expressed in some member states on demography and labour force shortages, laid the groundwork for a heated (and at times entirely irrational) debate on migration. Yet this debate has not been mirrored in terms of its ‘heat’ at EU level, and questions remain about the extent to which such arguments will influence the Union’s future political agenda and the consequences of ignoring this expressed discontent?

Bile versus the serene
Two of the deemed ‘big winners’ in the European elections chose to play the ‘aggressive card’. UKIP (UK) and Front National (France) are both ultranationalist parties who put the generic ‘migrant’ – no distinction between mobile EU citizens and third country nationals – at the centre of their campaign, wrongly (and probably by design) mixing up the two categories in doing so. However there were also important differences. UKIP for instance aims to end the ‘social welfare tourism’ of EU citizens moving to the UK. The Front National’s goal is to stop ‘both legal and clandestine immigration’ and to revise the 
Schengen agreement (which abolished border controls) in order to ‘regain control’ over French borders.

In contrast, there is little to distinguish the respective agendas of the four aspirants to the European Commission’s presidency when it comes to immigration. Though there are of course some differences, all four candidates accept legal migration as a growth factor for the EU, in order to address labour market shortages which cannot be fulfilled by the labour force inside the EU. There is also common agreement on the need to boost intra-EU solidarity in the field of immigration, with none of them envisaging a revision of the Shengen rules. Finally freedom of movement, and especially the controversial issue of ‘benefits tourism’, is given little attention, with all of them affirming the importance of free movement for the EU generally and differentiating it from immigration policy specifically.

So are there any consequences around this apparent disconnect between national and EU level debates?

Populism and imbalance
Considering that free movement is perceived by EU citizens as one of the biggest EU achievements, it cannot be stressed enough that the continued distortion and portrayal of EU citizens as immigrants and the attendant desire to restrict the rights they enjoy, has particularly dangerous consequences for the future of the European project.

The fact that some mainstream parties have started to borrow and indeed wholeheartedly adopt certain populist arguments has created an imbalance between, on the one side, arguments depicting migrants as a burden for the host society, with a need to strengthen external border controls, and, on the other, a hesitation to highlight the benefits of migration.

A prime example of how this imbalance is being played out can be seen in the highly protectionist attitude reflected by the joint letter that the ministers for the interior of Germany and Austria, the UK home secretary and the Dutch immigration minister sent to the European Commission in May 2013. In this letter, the ministries of interior requested the amendment of Directive 2004/38/EC (on citizens of the European Union) because of the use of national social welfare schemes by ‘certain immigrants from other member states’. The concerns expressed related to the additional costs such member states would have to bear because of a ‘fraudulent use of the right of free movement of EU citizens’ which, in their view, would require more effective sanctions, such as expulsion, re-entry bans, and ‘practical measures to address the pressures’.

The European Commission was clear in their response. EU law already provided explicitly and sufficiently for the prevention of abuse or fraud, and the member states were criticized for alleging welfare tourism without any statistical evidence or data. No general prevention measures could be taken by member states because there was simply no abuse where EU citizens and their family members obtain a right of residence under EU law (as specified in the EU Treaties, the EU Charter of Fundamental Rights and EU secondary legislation) in a member state other than that of the EU citizen’s nationality, as they are benefiting from an advantage inherent in the exercise of the right of free movement protected by the Treaty. Finally there was a clear economic and demographic need, and positive effects from, increased intra-EU mobility.

The evidence of fear
Fears, especially around ‘welfare tourism’ have consistently preceded every single enlargement process in the EU. They have led to a revitalisation of a nation-state approach in a phase of European integration, where EU legislation and rules are increasingly portrayed as interfering with national discretion and member states’ policies related to social security systems. This has allowed certain Member States to use this fear in order to try to reclaim control over who is admitted and who is a beneficiary of social benefits. A case in point is the UK and its right to reside test, which as I argued
HERE, is incompatible with EC Regulation 1408/71 given that it constitutes indirect discrimination based on nationality rules (and seems in any event contra to the generally ‘maximalist approach’ adopted by the CJEU).

What remains missing in current debates, is the evidence to corroborate such fears. Indeed what is particularly striking is the absence of clear and available quantitative and qualitative knowledge around the actual reliance and costs on social benefits in the receiving member states by non-citizens and the extent to which these people use social benefits in the receiving state. Even where national data and statistics do exist, they are often not comparable in cross-member states.

This favours the increasing focus on subjective, non-rational and politicised discourses and policy initiatives around in particular, social welfare tourism’, and by some national governments of the EU member states. It would also seem to runs counter to the reasonable assumption that the existence of ‘evidence’ would be central at the EU level for member states to have well-justified, necessary and proportionate restrictions or exceptions to EU-level rights and freedoms. Not least because, in fact, as the European Commission Guidelines on the transposition of Directive 2004/38/EC outline, member states’ derogations to EU recognised rights and freedoms cannot take place on a purely precautionary or preventive basis, or on the basis of “fears” of national governments and administrations. Such derogations must instead comply with specific conditions and criteria.

How can we reframe the debate?
There would seem to be an urgent need for more research and quantitative/qualitative knowledge and statistics as regards the relationship between migration and social benefits in the EU, the actual reliance on social benefits by non-citizens, as well as (importantly) their contributions to the receiving state.

Member state governments and administrations need to ensure the production of better statistics, quality of administration and better guidance at national level. The EU should ensure, and even take the lead in coordinating, a high standard of methodology, the comparability of data, and the collection, evaluation and dissemination of the relevant information and data. This would minimise the risk that such data is not misused for certain nationalistic political agendas.

If we were able to achieve this then a more rational and evidence-based debate on human mobility might ensue, framed on the basis of the applicable terminology that EU free movement law foresees. It might also allow the dividing line between the free movement regime for EU citizens and migration matters concerning third-country nationals to become less blurred, and to disentangle what in essence are two entirely different and distinct legal regimes. A helpful starting point to this would be the adoption of a common EU approach on social security coordination for third country nationals (remedying the current fragmented legal and policy frameworks at the EU and national levels), which would assist and strengthen legal certainty in this area.

Finally any restrictions and amendments to current EU rights and freedoms as envisaged in the Citizens’ Directive 2004/38/EC should be resisted unless proven to be necessary and proportionate to achieve a public goal, and if backed up with objective, accurate and scientifically based data and figures. Because only then can we begin to have a serious debate about the EU and reform, and rise above the dog whistle politics.

 

Profile photo of Matt Evans About Matt Evans
Matt Evans is the Director of the AIRE Centre, a specialist charity whose mission is to promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Previously he was the Managing Solicitor at the Prisoners Advice Service for 6 years and worked at a number of leading legal aid firms including TV Edwards, Hickman and Rose and Hodge Jones and Allen.

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