12 The free movement of EU citizens
| (35590)
16930/13
COM(13) 837
| Commission Communication: Free movement of EU citizens and their families: Five actions to make a difference
|
| Legal base
Document originated
Deposited in Parliament
| —
25 November 2013
29 November 2013
|
| Department | Home Office
|
| Basis of consideration | EM of 12 December 2013
|
| Previous Committee Report | None
|
| Discussion in Council | 5 December 2013 (Justice and Home Affairs Council)
|
| Committee's assessment | Politically important
|
| Committee's decision | Not cleared; further information requested
|
Background
12.1 In April 2013, the Home Secretary (Mrs Theresa
May) and her counterparts in Austria, Germany and the Netherlands
wrote to the then President of the Justice and Home Affairs Council,
Mr Alan Shatter, expressing concern that the right of EU citizens
to move freely within the EU was placing a considerable strain
on local services and social welfare systems. Whilst recognising
freedom of movement as "one of the central achievements of
the European integration process and one of the most visible benefits
of the EU for its citizens", they suggested that the conditions
governing the free movement of EU citizens and their families,
set out in Directive 2004/38/EC ("the 2004 Directive"),[57]
were not always respected and that Member States lacked the necessary
legal tools to tackle the abuse of free movement rights effectively.
The letter stated that a significant number of EU migrants were
drawing social assistance in their host countries, "frequently
without a genuine entitlement", and creating additional costs
and burdens for host communities in terms of schooling, health
care and the provision of adequate accommodation. It also highlighted
the following specific concerns:
· the fraudulent use of the right of free
movement by EU citizens or third country nationals to circumvent
national immigration controls;
· the absence of effective sanctions; and
· the need for a more consistent interpretation
of the 2004 Directive, as well as a common understanding of what
constitutes fraud or systematic abuse and how they can be tackled
effectively (including through expulsion and re-entry bans).
12.2 The signatories to the letter suggested that
it was "an affront to common sense" to allow recently
arrived migrants who have never been employed or paid taxes in
their host Member State to claim the same social security benefits
as the host State's own citizens and called for an urgent review,
alongside:
· permanent improvements in local living
conditions in the Member States from which most EU migrants originate,
and better use of EU funds for this purpose; and
· Commission proposals to counteract misuse
of free movement rights.
12.3 The letter was discussed at the Justice and
Home Affairs Council in June 2013. The press release issued by
the Council Presidency indicated that "all Member States
agreed that the free movement of persons was a core value of the
European Union" and that the Council had invited the Commission
to "look at the implementation of free movement rules, including
guidance on fighting abuse of these rules" with a view to
presenting an interim report in October and a final report by
December 2013.[58]
The Commission Communication
12.4 The Communication constitutes the Commission's
response to the Council's request for a report on the implementation
of free movement rules. It notes that free movement of workers
— along with the free movement of goods, services and capital
— is one of the four "fundamental freedoms" enshrined
in the EU Treaties. The Maastricht Treaty extended "the
right to move and reside freely within the territory of the Member
States" to all EU citizens, whether or not economically active,
subject to the conditions and limitations set out in the EU Treaties
and secondary legislation (notably, the 2004 Directive). This
has made it easier for EU citizens to study or retire elsewhere
in the EU. According to the Commission, free movement is the
right most closely associated with EU citizenship, with Eurobarometer
surveys indicating that 56% of EU citizens regard it as the most
positive achievement of the EU and 67% recognising that it yields
economic benefits for their own countries.[59]
The Commission also acknowledges, however, that free movement
can "create challenges for local communities faced with new
inflows" and that the economic crisis has heightened concerns
in some Member States about the impact on social welfare systems
and on local services.[60]
12.5 The Communication first considers how likely
EU citizens are to migrate to another Member State, then seeks
to clarify the rights and obligations associated with the free
movement of EU citizens, as well as the conditions and limitations
provided for in EU law, and concludes with five actions which
are intended to help national and local authorities to apply EU
free movement rules effectively and to make better use of available
EU funds.
How mobile are EU citizens?
12.6 The Commission estimates that around 14 million
EU citizens (or 2.8% of the total eligible population) currently
live in another Member State, although the rate of increase in
mobility has declined in recent years as a result of the economic
recession and a lower propensity to migrate from central and eastern
European countries acceding to the EU in 2004. Work is the principal
reason for exercising free movement rights, and is reflected in
the higher employment rate for migrant EU citizens (averaging
67.7% compared to 64.6% for nationals of the host Member State).
Only "a limited share" of migrant EU citizens are not
in employment, and 79% live in a household in which at least one
other member is in employment.[61]
12.7 The Commission cites a number of independent
studies which indicate that migrant EU citizens are unlikely to
place a burden on the host country's welfare system (because they
pay more in tax and social security contributions than they receive
in benefits) and that there is no statistical relationship between
the generosity of national welfare systems and the inflow of migrant
EU citizens. It says that recent data provided by Member States
show that migrant EU citizens do not use welfare benefits more
intensively than host country nationals, although the UK is identified
as one of seven Member States unable to provide information on
the proportion asking for or receiving social benefits.[62]
Rights and obligations
12.8 According to the Commission, EU law is designed
to facilitate cross-border mobility "to the mutual benefit
of those who move and those who stay",[63]
but is subject to the conditions and limitations set out in the
2004 Directive and in Regulation 492/2011 (for EU migrant workers)
and Regulations 883/2004 and 987/2009 concerning the coordination
of social security systems.
12.9 All EU citizens enjoy the right to reside in
another EU country (provided they have a valid identity card or
passport) for an initial three month period. Thereafter, EU citizens
who are not economically active, such as students or pensioners,
must demonstrate that they have comprehensive health insurance
and sufficient financial resources for themselves and their families
to avoid becoming a burden on the host country's social assistance
system. EU citizens and family members obtain a right to permanent
residence after five years.[64]
12.10 Job-seekers are entitled to reside in another
EU Member State for up to six months and may be able to stay for
longer if they demonstrate that they are actively seeking employment
and have a genuine chance of finding a job.
12.11 Once resident in another EU Member State, the
Communication seeks to clarify the basis on which EU migrant citizens
are entitled to social assistance benefits — described as
benefits made available to those who lack the resources to meet
their basic needs — and to social security benefits. The
latter typically include old-age pensions, disability and sickness
benefits, unemployment and family benefits, and healthcare.
12.12 EU law distinguishes between the rights of
EU migrant workers, who are eligible for social assistance benefits
on the same basis as workers in the host Member State, and job
seekers and migrant EU citizens who are not economically active,
for whom different eligibility rules apply. Member States are
not required to grant social assistance to job-seekers during
their initial three-month period of residence. Nor are they required
to do so for migrant EU citizens who are not economically active.
As this category of migrant only acquires the right to reside
for longer than three months if they have "sufficient resources"
— the threshold being set at a level equal to or higher
than the income threshold for eligibility for social assistance
— the Commission suggests that they are unlikely to be eligible
for social assistance. It adds that a claim for social assistance
could, in specific cases, give rise to "a reasonable doubt"
that the claimant, by becoming an unreasonable burden on the host
country's social assistance system, no longer fulfils the conditions
for continuing residence. However, EU law requires an individual
assessment to be made in each case, which takes into account the
factors which have caused the claimant to seek social assistance
and the overall burden that meeting the claim would place on the
host country's system of social assistance. All EU migrant citizens
become eligible for social assistance on the same basis as nationals
of the host country after a period of five years of legal residence.
12.13 Turning to eligibility for social security
benefits, EU rules on the coordination of social security seek
to ensure that migrant EU citizens are able to retain rights they
have already acquired, such as a State pension, when they move
to another Member State. EU migrant workers and their family
members pay tax and social security contributions in their host
country and are covered by that country's social security system
in the same way as national workers. The Commission notes, however,
that rules on eligibility for social security benefits, and the
type and amount of benefit that is made available, are determined
at a national level and vary from one Member State to another.
12.14 Migrant EU citizens who are not economically
active are only entitled to social security benefits in their
host Member State if they satisfy the habitual residence test.[65]
This is intended to demonstrate that they have a genuine link
with the host country and is based on a number of criteria, including
the duration and continuity of their stay, their family and employment
situation and where their "centre of interest" is located.
Conditions and limitations provided for in EU
law
12.15 The Commission suggests that EU law contains
"robust safeguards" to help Member States combat the
fraudulent or abusive use of free movement rights. It defines
fraud as:
"deliberate deception or contrivance made to
obtain the right of free movement and residence under EU law."[66]
Examples of fraud include the use of forged identity
or residence documents, or making false declarations about the
adequacy of resources in order to obtain a right of residence.
12.16 Abuse is defined as:
"an artificial conduct entered into solely with
the purpose of obtaining the right to free movement and residence
under EU law which, albeit formally observing the conditions laid
down by EU rules, does not comply with the purpose of those rules."[67]
The Commission cites marriages of convenience as
a prime example of abuse, but suggests that the scale of the problem
varies significantly from one Member State to another. It also
highlights concerns about the growing involvement of organised
crime networks as a means of securing entry and residence in the
EU for third country nationals.
12.17 The Commission notes that measures restricting
the free movement of EU citizens must comply with the principle
of proportionality and be based exclusively on the personal conduct
of the individual concerned. They cannot be imposed for deterrent
purposes (to prevent further migration), or for economic reasons,
or as an automatic consequence of a criminal conviction. Possible
restrictive measures include:
· refusal of entry or expulsion on grounds
of public order or public security — both grounds require
evidence of "a present, genuine and sufficiently serious
threat to one of the fundamental interests of society";[68]
or
· re-entry bans — these are only justified
where it is shown that an EU citizen is likely to continue to
present a serious threat to public order in the future.
12.18 Cases involving abuse of free movement rights
or fraud have to be assessed against the same criteria, taking
into account the gravity of any offence committed and the extent
to which the offender can be considered a sufficiently serious
threat to public order to warrant expulsion and, in the most serious
cases, a re-entry ban. Similarly, cases of social security fraud
where, for example, a legally resident migrant EU citizen has
made a false declaration to obtain a benefit, are punishable in
accordance with the administrative or criminal penalties applicable
in the host country, but would only justify expulsion or a re-entry
ban if the individual concerned could be considered a serious
threat to public order.
12.19 The Communication highlights the funding available
from the European Social Fund and European Regional Development
Fund to develop active inclusion strategies for all marginalised
communities, including migrant EU citizens, and to support social
infrastructure such as housing and investment in education, health
and childcare. It proposes five "concrete actions"
to help local and national authorities make better use of EU funding
and apply EU free movement rules more effectively by:
· preparing a handbook to help combat marriages
of convenience;
· publishing a practical guide (available
on the Commission's website by the end of 2013) to ensure the
effective application of EU social security coordination rules
and to clarify the habitual residence test;
· developing the capacity of local authorities
to use European Structural and Investment Funds for the period
2014-20 to combat poverty and promote the social inclusion of
marginalised communities (particularly the Roma);
· producing a study by the end of 2013 evaluating
the impact of free movement in six cities (Barcelona, Dublin,
Hamburg, Lille, Prague and Turin) and promoting the exchange of
best practice between local and regional authorities; and
· setting up, by the end of 2014, an online
training module to improve local authorities' understanding of
EU free movement rules, establishing advice and information centres
for migrant EU workers in each Member State, and strengthening
the role of the European network of national employment services
in facilitating cross-border labour mobility.
12.20 The Communication reiterates the Commission's
view that EU free movement rules contain "robust safeguards"
to tackle abuse and prevent unreasonable burdens being placed
on the host country, and concludes:
"It is the joint responsibility of Member States
and the EU institutions to uphold the right to free movement,
including by countering public perceptions that are not based
on facts or economic realities."[69]
The Government's view
12.21 The Immigration Minister (Mr Mark Harper) reiterates
the Government's belief that freedom of movement is "an important
principle" but adds that "it cannot be a completely
unqualified one." He expresses concern at the impact that
abuse of free movement rights has on welfare systems and public
services and underlines the importance of ensuring that people
who come to the UK from other Member States "do so for the
right reasons."[70]
He continues:
"Our focus is on cutting out the abuse of free
movement between EU Member States and addressing the factors that
drive European immigration to Britain. Across Government, we are
working to further tighten our controls on accessing benefits
and services, including the NHS and social housing. In March
2013 and again on 27 November the Prime Minister announced a number
of measures to put this principle into effect, many of which will
be implemented through the Immigration (European Economic Area)
(Amendment) (No. 2) Regulations 2013 which come into force on
1 January 2014. The Government have consistently raised the problem
of the abuse of free movement at meetings of the Council of Ministers."[71]
12.22 The Minister suggests that the Commission Communication
does not go far enough in recognising the scope and seriousness
of free movement fraud and abuse, adding:
"The Commission has failed to give sufficient
weight to the evidence provided by Member States. For example,
the Government provided evidence of cases from Operation Golf,
a joint human trafficking investigation that was run by the Metropolitan
Police and the Romanian National Police, following the discovery
that over 1,000 children had been trafficked by a Romanian gang
from the town of Tanderai for the purpose of exploitation through
forced criminality, including theft, organised begging and benefit
fraud.
"We consider that the fact that such abuse is
possible under current conditions is sufficient to warrant effective
action. The existence of serious fraud and abuse of free movement
also has a serious and negative impact on the public perception
of free movement. Whilst the Communication argues that in general
EU citizens do not use welfare benefits or commit fraud more intensively
than host country nationals, this ignores the public perception
of such abuse and the very real costs to the individual Member
States."[72]
12.23 The Minister argues that the Communication
gives insufficient consideration to Article 35 of the 2004 Directive
which enables Member States to "adopt the necessary measures
to refuse, terminate or withdraw any right conferred ... in the
case of abuse of rights or fraud, such as marriages of convenience",
adding nothing of substance to previous guidance issued in 2009.
12.24 Turning to the impact of EU migration on social
welfare systems, the Minister says:
"the Commission must accept that fraudulent
claims for welfare are a problem; and that current rules on social
security coordination are preventing Member States from taking
the necessary steps to ensure that only those migrating to work
and contribute to a host country's economy can access welfare
benefits. The Communication does however confirm that Member
States do not have to grant social assistance to EU jobseekers
within their first three months of residence. The Prime Minister
announced on 27 November that in future EU migrants will not be
entitled to claim Jobseeker's Allowance in the initial three month
period."[73]
12.25 The Minister is critical of two of the five
actions proposed by the Commission to help local and national
authorities tackle abuse and fraud. He notes that the handbook
on marriages of convenience was originally proposed in 2012 as
a tool to assist operational staff. He continues:
"Member States had agreed that the handbook
must provide practical guidelines on how authorities can identify
and clearly prove sham marriages. But, together with a number
of other countries (Germany, Austria, Denmark and The Netherlands),
we have informed the Commission that we are unable to accept the
current draft of this handbook which completely fails to fulfil
the requirements of a practical operational handbook, as requested
by the Council. The draft handbook focuses too narrowly on free
movement rights and gives little indication of how sham marriages
can actually be prevented. A recent draft stated that "the
mere fact that a marriage is one of convenience is not sufficient
to refuse, terminate or withdraw any EU right of free movement".
The UK considers this directly contrary to Article 35 of Directive
2004/38/EC and has expressed this view to the Commission."[74]
12.26 The Minister notes that a draft version of
the practical guide to clarify the 'habitual residence' test has
already been produced and focuses principally on how to determine
which Member State's social security rules apply (in accordance
with Regulation 883/2004) when workers move from one Member State
to another, or work in two or more Member States. He continues:
"The Government have been clear that Member
States must be able to take the necessary steps to ensure that
only those migrating to work and contribute to a host country's
economy can access welfare benefits. The current rules do not
allow Member States sufficient flexibility to manage access to
benefits for migrants. This is a particular issue for Member
States whose benefits systems are primarily income-related and
residence based."[75]
12.27 The Minister notes that the Communication was
discussed at the Justice and Home Affairs Council in December
2013. The Home Secretary expressed her disappointment that the
Commission had failed to take proper account of the evidence provided
by Member States and argued that the five action points proposed
in the Communication would make no real difference to the problems
faced by Member States. She made clear that the UK would:
"continue to press ahead with a series of domestic
reforms that will tighten our implementation of the free movement
rules and protect local communities, public services and our benefits
system."[76]
Conclusion
12.28 The recent debate on the free movement of
EU citizens has polarised opinion within the Council of Ministers.
Whilst the letter signed by the Home Secretary and her counterparts
in Austria, Germany and the Netherlands in April 2013 highlighted
the costs and burdens for host communities, as well as the prevalence
of benefit tourism, a statement issued by the Foreign Ministers
of the Czech Republic, Hungary, Poland and Slovakia shortly before
the December 2013 Justice and Home Affairs Council referred to
data demonstrating that migrants from Central and Eastern Europe
were "hugely beneficial for the British economy", with
their contribution to the UK's national revenues far exceeding
the social benefits they use. Where there does appear to be common
ground between Member States is on the need for an effective response
to tackle cases of abuse, even though the scale of abuse continues
to be contested.
12.29 The publication of the Communication coincides
with the lifting of transitional controls on migrants from Bulgaria
and Romania on 1 January 2014 and the entry into force of domestic
regulations removing entitlement to Jobseekers' Allowance for
EEA nationals seeking employment in the UK (including UK nationals
returning from a period of residence abroad) until they have been
continuously resident in the UK for three months. We therefore
consider that a debate on the challenges presented by free movement
within an enlarged European Union, and the capacity of Member
States to respond effectively within the existing EU legal framework,
would be timely and we recommend that the Communication should
be debated in European Committee B.
12.30 We note that the Minister is critical of
the Commission's failure fully to recognise "the scope and
seriousness of free movement fraud and abuse" and the Home
Secretary's letter of April 2013 also alludes to the burden placed
on welfare systems by claims for social assistance made "frequently
without a genuine entitlement" by migrant EU citizens. The
Commission says in its Communication that the UK was unable to
provide information on the number or proportion of EU migrant
citizens claiming or receiving social benefits.[77]
We ask the Minister to provide us with the following information
by 17 January, so that we can consider it at our meeting on 22
January:
· the data held by the Government on
the number of nationals from other EU countries claiming benefits
in the UK;
· the data sources used by the Government
to determine the present scale of abuse of the UK's welfare system
by migrant EU citizens; and
· the scale and form of the most prevalent
types of abuse and fraud of EU free movement rules in the UK.
12.31 In light of the information provided, we
may wish to recommend a debate on the challenges presented by
free movement within an enlarged European Union, and the capacity
of Member States to respond effectively within the existing EU
legal framework.
12.32 Finally, we note that the Home Secretary's
Written Ministerial Statement on the December 2013 Justice and
Home Affairs Council indicates that a number of Member States
agree with the UK that the Commission has failed to take adequate
and effective action to tackle abuse and fraud and would "consider
working together outside the EU structures." We ask the
Minister to explain what further action the Government expects
the Commission to take, whether this would require changes to
existing EU rules, and what type of extra-EU action he envisages
if the Government remains dissatisfied with the Commission's response.
Meanwhile, the Communication remains under scrutiny.
57 OJ No. L 158, 30.04.04. Back
58
See http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/jha/137407.pdf. Back
59
See p.2 of the Communication. Back
60
See p.3 of the Communication. Back
61
See p.3 of the Communication. Back
62
See footnote 21 on p.4 of the Communication. Back
63
See p.5 of the Communication. Back
64
For further information on the application of the right to reside
test in the UK, see the House of Commons Library Standard Note,
EEA nationals: the 'right to reside' requirement for benefits
published in December 2011. Back
65
For further information on the application of the habitual residence
test in the UK, see the House of Commons Library Standard Note,
The Habitual Residence Test published in May 2011. Back
66
See p.7 of the Communication. Back
67
Ibid. Back
68
See p.8 of the Communication. Back
69
See p.13 of the Communication. Back
70
See para 13 of the Government's Explanatory Memorandum. Back
71
See para 14 of the Minister's Explanatory Memorandum. Back
72
See paras 15 and 16 of the Minister's Explanatory Memorandum. Back
73
See para 18 of the Minister's Explanatory Memorandum. Back
74
See para 19 of the Minister's Explanatory Memorandum. Back
75
See para 20 of the Minister's Explanatory Memorandum. Back
76
See para 26 of the Minister's Explanatory Memorandum. Back
77
See footnote 21 on p.4 of the Communication. Back
| 
