2 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
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| Legal base
| — |
| Department
| Home Office
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| Basis of consideration
| Minister's letter of 20 January 2014
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| Previous Committee Report
| HC 83-xxvi (2013-14), chapter 12 (8 January 2014)
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| Discussion in Council
| 5 December 2013 (Justice and Home Affairs Council)
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| Committee's assessment
| Politically important
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| Committee's decision
| Not cleared; for debate on the Floor of the House
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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."
Conclusion
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 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/271415/nino-statistical-bulletin-aug-13.pdf
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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