Documents considered by the Committee on 22 January 2014 - European Scrutiny Committee Contents

2 The free movement of EU citizens



COM(13) 837

Commission Communication: Free movement of EU citizens and their families: Five actions to make a difference
Legal base
Department Home Office
Basis of consideration Minister's letter of 20 January 2014
Previous Committee Report HC 83-xxvi (2013-14), chapter 12 (8 January 2014)
Discussion in Council 5 December 2013 (Justice and Home Affairs Council)
Committee's assessment Politically important
Committee's decision Not cleared; for debate on the Floor of the House

Background and previous scrutiny

2.1 The Communication is the Commission's response to a request made by the Home Secretary (Mrs Theresa May) and her counterparts in Austria, Germany and the Netherlands in April 2013 for an urgent review of EU free movement rules on the grounds that they are placing a strain on local services and social welfare systems and that Member States lack the necessary legal tools to tackle abuse and fraud. The request was discussed at the June 2013 Justice and Home Affairs (JHA) Council and the Commission invited 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.

2.2 The Communication 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. The Commission makes clear that, in its view, 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."[1]

2.3 Our Twenty-ninth Report, agreed on 8 January 2014, provides a more detailed overview of the Communication and the Government's position.[2] Whilst recognising that freedom of movement is "an important principle", the Minister for Immigration (Mr Mark Harper) told us that "it cannot be a completely unqualified one" and that people who come to the UK must "do so for the right reasons." He was critical of the Commission's failure to acknowledge the scope and seriousness of free movement fraud and abuse and to give sufficient weight to the evidence provided by Member States. He suggested that the sanctions available to Member States were inadequate, that there was insufficient flexibility to manage access to benefits for EU migrants, and that the five actions proposed in the Communication to help tackle abuse (notably, marriages of convenience) were unlikely to be effective. He expressed the Government's commitment to pressing 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."

2.4 We noted that the debate on the free movement of EU citizens has polarised opinion within the Council of Ministers, with the Foreign Ministers of the Czech Republic, Hungary, Poland and Slovakia issuing a statement in December 2013 underlining the "hugely beneficial" contribution made by migrants from Central and Eastern Europe to the British economy. Whilst there appears to be common ground between Member States on the need for an effective response to tackle cases of abuse, the scale of abuse continues to be contested. We therefore asked the Minister to provide us with the following information:

·  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.

2.5 We also asked the Minister to explain what further action the Government expected the Commission to take to tackle abuse and fraud, whether this would require changes to existing EU rules, and (in light of the Home Secretary's intimation that the UK would consider working together with other like-minded Member States outside EU structures) what type of extra-EU action he envisaged if the Government remained dissatisfied with the Commission's response.

The Minister's letter of 20 January 2014

2.6 The Minister (Mr Mark Harper) reiterates the Government's view that the Commission Communication fails to give sufficient weight to the detailed information provided by the UK and other Member States on free movement abuse. He continues:

    "The existence of serious fraud and abuse has a serious and negative impact on the public perception of free movement. Whilst the Communication argued 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 individual Member States."

2.7 The Minister provides copies of evidence submitted by the Government to the Commission ahead of the October and December 2013 Justice and Home Affairs Councils at which allegations of free movement abuse were discussed, as well as a list of data sources used by the Government to demonstrate the abuse of EU free movement rules by EU migrants in the UK. The information is annexed to this chapter of our Report.

2.8 The Minister explains why the Government is unable to provide accurate data on the number of nationals from other EU countries claiming benefits in the UK:

    "As set out in our evidence to the Commission, the Government inherited a benefits system which did not record the nationality of benefit claimants. This limited our ability to provide the Commission with details of the volume of nationals from other EU countries claiming benefits in the UK. We are starting to record nationality as well as volumes of those who pass or fail the Habitual Residence Test. We are also establishing processes to collect data on the nationality of benefit claimants through the new Universal Credit. That will allow us better to understand future trends in migrant access to benefits."

2.9 Turning to the scale and form of the most prevalent types of abuse and fraud of EU free movement rules in the UK, the Minister highlights information provided on marriages of convenience, EU document fraud, and false claims of dependency, paternity or family relationships.

2.10 As for future action, the Minister continues:

    "At the JHA Council on 8 October, for the first time, we saw the Commission acknowledging that there is a problem with free movement abuse. We had support from 11 Member States, showing the value of our sustained 12 month lobbying campaign. We worked with the Germans, Austrians and Dutch in the run-up to the December JHA Council to lobby the Commission to take free movement abuse seriously and the UK will continue to raise this issue at the Council. We are asking that the next five-year JHA work programme, replacing the Stockholm Programme, should include a clear commitment to action against free movement abuse including, for example action to tackle sham marriage and document fraud. We are also seeking to improve sharing of information and practical experience with other Member States on these issues at future JHA Council meetings.

    "The Prime Minister has also set out ideas for strengthening future transitional controls on accession countries to the EU. The EU already recognises the need for safeguards and that is why transitional controls were put in place. The Prime Minister has argued that we need to look at other options like GDP thresholds before granting full freedom of movement. We want to start a debate in Europe on the best way to achieve these objectives."


2.11 We thank the Minister for making available to us the data sources on which the Government's assessment of the abuse of EU free movement rules is based, as well as the evidence provided by the UK to the Commission to inform its Communication.

2.12 The Government provides evidence of egregious examples of abuse and fraud, some involving organised crime and the exploitation of vulnerable EU nationals lured by traffickers or manipulated into sham marriages. We agree with the Minister that such cases have a serious and negative impact on the public perception of free movement. We note, however, that the Government relies primarily on "qualitative evidence" demonstrating types of abusive behaviour, rather than "quantitative data" demonstrating the scale and prevalence of abuse and fraud. This is because:

·  EU citizens exercising free movement rights in the UK are not required to register with local or national authorities; and

·  data on the nationality of social welfare benefit claimants is not routinely recorded.[3]

2.13 The Government suggests that the Commission places too much emphasis on quantitative evidence. We disagree. Both data sources are essential to achieve a balanced assessment of the impact of free movement on local services and social welfare systems. We consider that the debate around free movement is in danger of conflating two issues: first, whether abuse takes place — the qualitative data produced by the Government demonstrate that it does; second, whether abuse is widespread and pervasive — the quantitative data necessary to substantiate this perception appear to be lacking. We would add that great care should be taken to distinguish between the perpetrators of abuse and fraud. Many of the examples highlighted by the Government concern the abuse of EU free movement rules by non-EU third country nationals seeking to circumvent UK immigration controls. Recent debate in the UK has focussed more on abuse of the welfare system by EU migrants, an area in which far more detailed quantitative and comparative data would be helpful.

2.14 We understand that the Department for Work and Pensions (DWP) does produce an estimate of the number of non-UK working age DWP benefit recipients, based on their nationality when they first entered the labour market and registered for a National Insurance number.[4] DWP data for February 2013 indicate that 16.4% of working age UK nationals were claiming a DWP working age benefit, compared to 6.7% of non-UK nationals. Non-UK nationals constituted 7% of working age benefit claimants, of which fewer than a third (31%) were from the European Union. Jobseekers Allowance was the benefit most likely to be claimed by EU migrants to the UK.

2.15 These data suggest, and the Government accepts, that the majority of EU citizens who come to the UK "do so in order to genuinely and effectively exercise Treaty rights."[5] For the small minority who do not, the Government questions the assumption underlying the Commission Communication that Member States have the necessary tools to respond effectively within the existing EU legal framework. We consider that the challenges presented by free movement within an enlarged European Union, the impact on national welfare systems and local services, the adequacy of the safeguards enshrined in existing EU rules to protect against abuse and fraud, and the scope for (and proportionality of) action at national level are of sufficient importance to merit a debate on the Floor of the House.

1   See p.13 of the Communication. Back

2   See headnote. Back

3   See the introductory section of the paper entitled Free Movement - Initial information for the European Commission (UK) annexed to this chapter. Back

4   See The main DWP benefits concerned are Jobseekers Allowance, Employment and Support Allowance, Incapacity Benefit and Income Support. Back

5   See the section on abuse of free movement rights by Union citizens in the paper entitled Free Movement - Initial information for the European Commission (UK) annexed to this chapter. Back

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Prepared 5 February 2014