Brexit: UK-EU movement of people Contents

Chapter 1: Introduction

The purpose and scope of this inquiry

1.The Government has listed “bringing back control of decisions over immigration to the UK” as one of its four “overarching strategic objectives” for the forthcoming negotiations on the UK’s exit from, and future relationship with, the European Union.1 The Prime Minister has said that the result of the referendum on UK membership of the European Union sent “a very clear message” that “people wanted us to take control of our borders and control of immigration from the EU”.2 She has indicated that the Government intends to “introduce control on free movement so that we have an end of free movement”.3

2.In view of the link between this issue and membership of—or access to—the Single Market, the precise manner in which the Government proposes to “end” free movement looks set to be a pivotal aspect of the United Kingdom’s approach to negotiations with the European Union. It could have far-reaching implications not only for the UK’s future trading relationship with the EU, but also for sectors of the UK economy—both public and private—that have come to rely on EU migrant labour, and for UK citizens whose current, reciprocal right to free movement within the EU is also set to end.

3.Following the referendum on 23 June 2016, the European Union Committee and its six sub-committees launched a coordinated series of inquiries, addressing the most important cross-cutting issues that will arise in the course of negotiations on Brexit.4 These inquiries, though short, are an opportunity to explore and inform wider debate on the major opportunities and risks that Brexit presents to the United Kingdom.

4.In this report, we examine possible arrangements for migration of EU citizens to the UK after the UK has ceased to be a member of the EU, with a view to identifying the main choices available to the Government and their likely implications—including for UK citizens wishing to move to the EU in future. We hope that our report will help draw attention to the implications of this aspect of the Government’s strategy, as well as making a constructive contribution to the development of the UK’s negotiating position.

5.The scope of the inquiry on which our report is based has been limited to future flows of EU citizens to the UK (and vice-versa)—we have not examined the position of EU citizens already living in the UK and UK citizens already living in the EU, which has been the subject of a separate inquiry and report by the European Union Committee.5 We remain of the view that the Government should give a unilateral guarantee now—that is to say, before negotiations begin—that it will safeguard the EU citizenship rights of all EU nationals in the UK when the UK withdraws from the EU.6 This report is also intended to complement the Committee’s report on Brexit: the options for trade.7

6.In the course of our inquiry, we have examined future immigration arrangements for EU nationals. We have not considered future arrangements for non-EU nationals (including asylum-seekers and refugees) entering the UK via the EU. We have focused mainly on those EU nationals who move to the UK to work or look for work, both because they make up by far the largest proportion of EU nationals migrating to the UK (72% in the year ending June 2016) and because other Select Committees in both Houses of Parliament have been examining future arrangements for EU nationals moving to the UK to study, who make up the next largest proportion (13% in the year ending June 2016).8

7.It has been beyond the scope of our inquiry to examine the ramifications of possible changes to the UK’s immigration arrangements for EU nationals on individual sectors of the economy or the labour market more generally. We did, however, take evidence from NHS Employers in order to capture the perspective of a public-sector employer, and from the National Farmers’ Union in order to capture the perspective of an industry that has experience of sector-based and seasonal immigration schemes.

8.We are seized of the fact that when it comes to the free movement of persons, special considerations apply to the border between Northern Ireland and the Republic of Ireland, and that between Gibraltar and Spain. We have produced separate reports on the implications of the UK’s exit from the EU for UK-Irish relations and for Gibraltar.9 We are also mindful of the fact that the devolved administrations in Edinburgh, Cardiff and Belfast have their own perspective on this issue, and will shortly be producing a report on the implications of the UK’s exit from the EU for Scotland, Wales and Northern Ireland, as well as for the devolution settlements as a whole.10

9.We make this report to the House for debate.

Background

What is free movement?

10.The free movement of persons is one of the four ‘freedoms’ which together underpin the EU’s Single Market. One of the central aims of the European Union is to create an internal market between its members that removes and reduces barriers to trade by ensuring the free movement of goods, services, persons and capital.11 Table 1 sets out the treaty provisions underpinning each of the four freedoms.

Table 1: EU Treaty provisions relating to the Four Freedoms

The Four Freedoms

Goods

Customs Duties

Arts. 28–30 TFEU

Internal Taxation

Art. 110 TFEU

Free movement of imports

Art. 34 TFEU

Free movement of exports

Art. 35 TFEU

Persons

Freedom of establishment

Art. 49 TFEU

Free movement of citizens

Art. 20–21 TFEU

Free movement of workers

Art. 45 TFEU

Services

Freedom to provide, receive services

Art. 56 TFEU

Capital

Free movement of Capital

Art. 63(1) TFEU

Free movement of payments

Art. 63(2) TFEU

Source: HM Government, Review of the Balance of Competences between the United Kingdom and the European Union: the Single Market, p 20: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/227069/2901084_SingleMarket_acc.pdf

11.The concept of free movement of persons has changed in meaning since its inception. The 1957 Treaty of Rome establishing the European Economic Community (EEC) contained provisions on the free movement of workers and on freedom of establishment, thus granting individuals rights as employees or service providers.12 Closely associated with the relevant provisions in the Treaty of Rome was the general principle of non-discrimination on the grounds of nationality: a mobile worker from another Member State must enjoy the same treatment as nationals in a comparable situation.13 From the outset, supporting provisions were also enacted to ensure national social security systems would not act as a barrier or disincentive for workers and their families to move between Member States.

12.Over time, the principle of free movement of persons has been extended to other groups, such as jobseekers, students and individuals who are self-sufficient (for example, retirees). This has happened as a result of treaty change, secondary legislation (Regulations and Directives) and the evolving case-law of the Court of the Justice of the European Union (CJEU).14 For example, three Directives adopted in 1990 extended residence rights to retirees, students, and those with independent means.15

13.The Maastricht Treaty, in which entered into force in 1993, introduced the notion of EU citizenship. Since then, anyone holding the nationality of an EU Member State has also been a citizen of the EU. The 2004 Citizens Directive16 (also known as the Free Movement Directive) sought to consolidate and codify in one instrument provisions on the right of citizens of the Union and their family members to move and reside freely in the territory of the EU Member States. A modernised set of rules for social security coordination was established in two Regulations adopted in 2004 and 2009.17 Box 1 sets out the main rights codified in the Citizens Directive.18

Box 1: The 2004 Citizens Directive

The Citizens Directive codifies the following rights:

  • Article 4 provides a right of exit. All EU citizens who hold a valid identity card or passport and their non-EU family members—spouses, registered partners, dependent descendants, dependent ascendants 19—have the right to leave the territory of a Member State to travel to another Member State. No exit visa can be imposed on an EU citizen.
  • Article 5 provides a right of entry. Member States must grant all EU citizens who hold a valid identity card or passport and their family members the right to enter their territory. No entry visa can be imposed on an EU citizen.
  • Article 6 provides a right of residence for up to three months. All EU citizens and their non-EU family members have the right of residence in another Member State for a period of up to three months without any conditions, other than holding a valid identity card or passport.
  • Article 7 provides for a right of residence for more than three months. All EU citizens have the right of residence in another Member State for longer than three months if they meet any of the following conditions:
    • They are employed or self-employed (no further conditions apply).
    • They are economically inactive but have: i) “sufficient resources for themselves and their family not to become a burden on the social assistance system of the host Member State”; and ii) “comprehensive sickness insurance cover”.
    • They are accredited students and have: i) “sufficient resources for themselves and their family not to become a burden on the social assistance system of the host Member State”; and ii) “comprehensive sickness insurance cover”.
  • These conditions are often referred to as exercising treaty rights.
  • The right of residence for more than three months extends to non-EU family members of EU citizens meeting one of these conditions.
  • Article 16 provides a right of permanent residence. All EU citizens who have resided for a continuous period of five years in the host Member State, and who have exercised their treaty rights during that time, have the right of permanent residence there. The right of permanent residence extends to (non-EU) family members of EU citizens who have resided for a continuous period of five years. Once acquired, the right of permanent residence can only be lost through absence from the host Member State for a period exceeding two consecutive years. The following temporary absences do not affect continuity of residence:
    • absences not exceeding a total of six months a year; or
    • absences of a longer duration for compulsory military service; or
    • one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training; or
    • a posting in another Member State or a third country.
  • Article 24 provides a right to equal treatment. All EU citizens and their non-EU family members have the right to be treated equally with nationals of the host State. The host State is not, however, obliged to grant social assistance to economically inactive people or students during the first three months of their stay.
  • Article 27 provides a right to expel an EU citizen on grounds of public policy, public security or public health, subject to procedural safeguards. These grounds cannot be invoked to serve economic ends. The personal conduct of the individual concerned must represent “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.”

Source: Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ L 158, 30 April 2004, pp 77–123)

14.Free movement rights can be exercised by citizens of the 28 EU Member States, their dependants, and (in certain circumstances) other family members. The rights conferred by the Citizens Directive have in large part also been extended to nationals of the European Economic Area who are not members of the EU (Iceland, Norway and Liechtenstein) and to Switzerland by virtue of separate agreements. EU citizens have a reciprocal entitlement to exercise free movement rights in those countries. For simplicity, we nonetheless refer to ‘EU’ and ‘non-EU’ categories in the remainder of our report.

15.The Citizens Directive was transposed into UK law by the Immigration (European Economic Area) Regulations 2006. The CJEU has continued to clarify and, in some cases, expand free movement rights through its case law, which has prompted the UK Government to amend the 2006 Regulations in some respects.20 Last year, the 2006 Regulations were superseded by the Immigration (European Economic Area) Regulations 2016.21

16.The free movement of persons is an area of ‘shared competence’ between the EU and its Member States. While competence for the coordination of social security systems is shared between the EU and its Member States, Member States have exclusive competence for the design, organisation and funding of their social security systems.

Free movement of persons and the Single Market

17.As the trajectory described above implies, the origins of the concept of free movement of persons lie in the creation of the Common Market (later the Single Market). Although in practice the free movement of persons amounts to an immigration policy in respect of each other’s citizens that the EEC Member States collectively agreed to adopt, they did so in pursuit of a different aim, namely the development of the Common Market. Accordingly, the legal basis in EU law for free movement of persons is found in provisions relating to the Single Market, not in provisions relating to immigration policy.

18.This nuance cuts to the heart of the choices available to the Government, in that by putting an “end” to the free movement of persons, the Government is proposing to renounce one of the four freedoms that underpin the Single Market. The Prime Minister has signalled that, as a corollary of this and other objectives set out by the Government, the UK will not be seeking membership of the Single Market in negotiations on its future relationship with the European Union. It will instead be seeking “the greatest possible access to it through a new, comprehensive, bold and ambitious Free Trade Agreement”.22

19.Decisions about the precise manner in which the Government proposes to “end” free movement are nonetheless inextricably linked to the UK’s objectives in relation to the Single Market. Membership of the Single Market is predicated upon acceptance of all four freedoms. Even a looser arrangement—such as the web of bilateral agreements that Switzerland has negotiated with the EU—has thus far involved accepting the free movement of persons in return for broad-based preferential access to the Single Market.23 On the other hand, more recent Free Trade Agreements have not included the free movement of persons, but have provided more limited access to the Single Market. For example, the EU-Canada agreement does not cover a number of key service sectors, does not provide tariff-free access for all Canadian manufactured goods, imposes quotas on some Canadian agricultural exports, and requires Canada to accept EU rules when exporting to the EU.24 The question for the UK is what level of access to the Single Market it is able to negotiate without accepting the free movement of persons, and—if it is seeking a greater level of access to the Single Market than that which the EU has offered in previous Free Trade Agreements—what the EU might seek in return, including on the free movement of persons.

Transitional controls on free movement

20.When new Member States join the European Union, the existing, ‘old’ Member States may temporarily choose to restrict the right of citizens from the new Member States to take up employment in their labour market, subject to provisions in each accession treaty. Transitional arrangements of this kind were permitted for the accession of the EU8 countries in 2004 (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia), the accession of the EU2 countries (Bulgaria and Romania) in 2007, and for that of Croatia in 2013. Transitional arrangements were not applied to Malta and Cyprus when they joined the EU in 2004.

21.In each case, transitional restrictions could be applied for a maximum period of 7 years, although each ‘old’ Member State could opt to lift its transitional restrictions at any stage during the seven-year period, or choose from the outset not to apply any restrictions. Meanwhile, the ‘new’ Member State was free to choose whether to introduce reciprocal restrictions on the citizens of ‘old’ Member States (for example, Croatia has done so while Bulgaria and Romania did not). Transitional restrictions were only permitted in respect of workers—they were not permitted in respect of the self-employed, nor could citizens of new Member States be prevented from travelling to other Member States or residing there under other, non-work categories (for instance, as self-sufficient persons).

22.Different Member States have made varying use of the right to impose transitional controls, and have sometimes taken different approaches for each accession. The UK was one of only three ‘old’ Member States (the others being Sweden and Ireland) that gave citizens of the EU8 countries full access to their labour markets when those countries joined the EU in 2004.

23.By contrast, after Bulgaria and Romania joined the EU in 2007, the UK—along with nine other ‘old’ Member States—applied restrictions for the full seven-year period. The nature of the restrictions applied varied from Member State to Member State. In the UK, Bulgarian and Romanian citizens were eligible to apply to the Home Office to take up skilled work on terms similar to those then applying to non-EU nationals. They were also eligible to apply to take up low-skilled work, but only under one of two schemes: the Seasonal Agricultural Worker Scheme and the Sector Based Scheme (which covered jobs in the food processing sector).

24.When Croatia joined the EU in 2013, the UK was one of 13 ‘old’ Member States to restrict Croatian nationals’ access to its labour market. Belgium, Cyprus, France, Germany, Greece, Italy, Luxembourg and Spain lifted their restrictions in July 2015, while Austria, Malta, the Netherlands, and Slovenia as well as the UK continue to apply restrictions. In the UK, Croatian nationals may currently only take up employment on the same terms as non-EU nationals.25

Patterns of migration

25.The volume of EU migration to the UK has increased sharply since 2004, as reflected in both stocks of EU nationals in the UK and flows of EU nationals to the UK. The number of EU citizens in the UK doubled from around 1.1 million in 2004 to approximately 2.3 million by 2012.26 Much of that increase can be linked to the 2004 enlargement, with the number of EU8 nationals in the UK increasing from 125,000 in 2004 to over one million by 2012.27 As shown in Figure 1, between 1975 and 1990, EU nationals accounted for around 10% of all immigration to the UK. This increased after 1990 and increased again more sharply after 2004. In 2005, EU immigration as a proportion of all immigration to the UK stood at 27%, in 2013 it stood at 38% and in June 2016 it was estimated at 44%.

Figure 1: Immigration flows to the UK by nationality, 1975–2013

Source: HM Government, Review of the Balance of Competences between the United Kingdom and the European Union, Single Market: Free Movement of Persons, p 29. Note 2013 figures were provisional estimates. See also para 33 regarding the inclusion of British nationals.

26.The current Government is committed to “delivering annual net migration in the tens of thousands”, as pledged in the 2015 Conservative manifesto.28 For the year ending June 2016, net migration was estimated at around 335,000. As shown in Figure 2, net migration (the difference between immigration and emigration) has not been in the tens of thousands since 1997. It has, however, been estimated at less than 200,000 as recently as 2012.

Figure 2: Long-term international migration to the UK, 1970–2015

Source: Written evidence from the Office for National Statistics (BMP0004), Figure 1

27.The composition of EU immigration to the UK has changed over time. Although the sharpest rise in EU immigration can be attributed to citizens of the EU8 countries arriving in the UK following the 2004 accession, since 2012 the pattern has changed, with rising immigration from the ‘old’ EU-15 Member States and the EU2 countries (Bulgaria and Romania), while immigration from the EU8 countries has steadied. In the year ending June 2016, almost half (49%) of EU immigration was made up of citizens from the ‘old’ EU-15 Member States, while EU2 and EU8 nationals made up around a quarter each (25% and 26% of EU immigration, respectively).

Figure 3: EU immigration to the UK, 2006 to 2016, year ending June 2016

Source: Written evidence from the Office for National Statistics (BMP0004), Figure 5

28.In the year ending June 2016, the majority of EU nationals moving to the UK reported doing so in order to work (72%). Of those coming to work, 57% reported they had a definite job to go to, while 43% arrived looking for work. By contrast, the most common reason given by non-EU nationals for moving to the UK was study (47%). Figure 4 shows the reasons for migration given by EU and non-EU citizens in the year ending June 2016.

Figure 4: IPS data by reason of migration for EU and non-EU citizens, year ending June 2016

Source: Written evidence from the ONS (BMP0004), Table 1

29.Data on UK citizens exercising their free movement rights elsewhere in the EU are less readily available. The ONS told us they estimated that around 35,000 UK citizens had emigrated to other countries in the EU in 2015.29 This amounted to 28% of the 124,000 UK citizens emigrating overseas in 2015. The ONS does not produce a breakdown of the figures to shed light on UK citizens’ reasons for emigrating.

Figure 5: Number of UK-born migrants living in other EU member states, 2015 estimates

Source: ONS, What information is there on British migrants living in Europe? Figure 2, data from United Nations

30.UN migration statistics from 2015 suggest that there are around 1.2 million UK nationals living elsewhere in the EU.30 Of those, the largest groups are thought to be in Spain (310,000), Ireland (255,000), France (185,000) and Germany (105,000), as shown in Figure 5. Separately, the ONS has produced a report compiled from data collected by Eurostat to estimate the number of British citizens who are long-term residents of other EU countries.31 The measure used in that report is based on citizenship rather than country of birth (in Ireland, for instance, there is a large difference between numbers of UK-born—287,600—and UK citizens—112,090). It does not include British citizens who spend only part of the year living in the EU, nor does it include those who hold the nationality of the EU country they are resident in (for instance, someone with both French and British citizenship living in France would not count as British under this measure). It produces an estimate of around 900,000 UK citizens who were long-term residents of other EU countries in 2011. The ONS uses the same data to explore the age profiles of UK citizens who are long-term residents of other EU countries, as shown in Figure 6. Spain, France, Ireland and Germany are home to the largest numbers of UK citizens. In Spain and France (as well as a number of other EU countries) the majority of British citizens living there are aged 50 or over.

Figure 6: Age profiles by citizenship, 2011 European Census data, ranked by biggest proportion of 65 years and older

Source: ONS, What information is there on British migrants living in Europe? Figure 1, data from Eurostat, 2011

Migration statistics

31.In the course of our inquiry, we were struck by the weaknesses and gaps in the UK’s migration statistics. The House of Commons Public Administration Select Committee published a report on Migration Statistics in July 2013, in which they recommended that the Government end reliance on the International Passenger Survey as the primary method of estimating migration, suggesting that it “is not fit for the purposes to which it is put”.32

32.The International Passenger Survey—which is the source for most of the data on migrant flows in and out of the UK presented above—is a sample survey that collects information from passengers as they enter or leave the UK through UK air and sea ports. The confidence intervals for the estimates drawn from the survey mean that the margin of error around individual figures can be relatively large, especially when the migrant sample is broken down to identify particular sub-groups. For example, net migration of Romanian and Bulgarian citizens was estimated at 61,000 in the year ending June 2016 compared to 49,000 the previous year, but even though that would represent a 25% increase, the difference is not statistically significant.33 The ONS explained:

“On the overall level we say that net migration is about 335,000 plus or minus a confidence interval of 40,000. As you break it down into smaller components, those confidence intervals get much wider because … you have a smaller sample.”34

33.We were also struck by some aspects of the definitions used for different measures—which though defensible in the context of the purpose for which data are collected, can make findings misleading for the purpose of informing the policy debate. For example, the UK’s official migration statistics use the UN-recommended definition of a long-term international migrant, which is “a person who moves to a country other than that of his or her usual residence for a period of at least a year (12 months) so that the country of destination effectively becomes his or her new country of usual residence”.35 The ONS explained in their written evidence that this allowed them to compare trends in migration in the UK with trends in migration in other countries. However, it also means that immigration figures include UK nationals. For example, in the year ending June 2016, 12% of all immigrants arriving in the UK were British citizens.36

34.Net migration figures exclude ‘short-term’ migrant flows, defined as those entering or leaving the UK for less than 12 months. This means that migrants entering the UK for shorter periods—for example under the Seasonal Agricultural Workers Scheme (SAWS), which operated until the end of 2013—are not included in the net migration figures, even when these routes can generate significant inflows (for example, the SAWS quota was 21,250 in 2013). It has been suggested that this can create a perverse incentive to favour temporary or seasonal migration schemes.37 By contrast, the net migration figures do include EU and non-EU students—provided the course they are enrolled on is longer than 12 months.

35.The ONS told us they were satisfied that the International Passenger Survey “is fit for purpose for producing [international migration] estimates at the national level”, but recognised that “demand for information on migration has increased significantly over the last few years”. They anticipated that “unlocking the power of information already held within Government by the DWP, the Home Office and HMRC would provide an opportunity better to measure the wide range of aspects of migration in which people are interested”. In particular, it would cast light on the characteristics of migrants already in the UK—such as what they are doing and their impact on the economy in terms of the taxes they are paying and the resources they are using. The ONS explained that “legal and other barriers make it difficult to share data across Government”, but anticipated that the Digital Economy Bill currently before Parliament would open up access and allow data from administrative sources to be linked together.38

36.Madeleine Sumption, Director of the Migration Observatory at Oxford University, told us that the extent to which any deficiencies in the data were a problem for policy “depends on what you want to do with it”.39 Jonathan Portes, Senior Fellow at the Economic and Social Research Council’s UK in a Changing Europe programme, highlighted what he saw as a “fundamental conceptual problem with net migration statistics” based on the definition of an immigrant as someone who arrived in the UK intending to stay for more than a year:

“That was probably quite meaningful … in the 1950s, 1960s and 1970s, when people who planned to come and live here came from the Caribbean or India with a work visa … If you are coming from Poland, Latvia or France, there is no legal, moral or practical obligation on you. When you come here and flash your passport with no visa in it, you may very well not know whether you intend to stay for a month, six months, or the rest of your life. Even if you did have some vague intention, it could well change and you are perfectly entitled to do that.”40

37.Mr Portes identified as a “priority” the use of administrative databases to track people’s interactions with the tax and benefits system, in order to “begin to get a picture not just of who comes in and is here at any one time but what people’s life trajectories look like”.41 Marley Morris of the IPPR drew attention to the limited data on the “churn” of EU migration, and the problem it posed for assessing the impact of imposing restrictions on new arrivals.42

Conclusions

38.Net long-term migration to the UK by EU nationals has risen sharply since 2004, but until end June 2016, remained lower than net long-term migration to the UK by non-EU nationals. Almost half of EU immigrants arriving in the UK in year ending June 2016 were from ‘old’ Member States, and 72% reported ‘work’ as their reason for immigrating, with the remainder mostly coming to study (13%) or accompany or join family (9%). Migration of UK nationals to other EU countries is smaller in volume, and different in composition, with the age profiles of UK citizens who are long-term residents in other EU countries suggesting that a larger proportion are retired or nearing retirement.

39.The evidence base currently available to policy-makers responsible for devising a future framework for UK-EU migration is incomplete, in some cases insufficiently reliable, and dispersed across a range of sources that are not always directly comparable, for example because some use citizenship while others use country of birth to identify migrants. This is an unsatisfactory basis from which to start developing policy. For example, without data on the turnover of EU migrants, that is to say on how long each person tends to stay in the UK, it is difficult to assess whether the stock of EU nationals already resident in the UK could help mitigate adverse effects, such as labour shortages, that could arise from placing restrictions on new arrivals. Although action is in hand to improve and expand the range and quality of migration data, it is unfortunate that any improved data will not be available in time to inform the decisions of Ministers and officials developing the UK’s initial negotiating position—or those seeking to hold them to account.

40.Different measures of who counts as a migrant can also prove misleading when used in public debate. For example, definitions sometimes include UK nationals, who made up 12% of immigrants in the year ending June 2016. In 2015, UK nationals also made up 40% of the 8.6 million UK residents born outside the UK. Use of the UN-recommended definition of a long-term international migrant may be appropriate for some purposes, but has the potential to skew policy decisions, since it means that some groups of migrants (such as students enrolled on courses of over 12 months’ duration) count towards net migration figures, while others (such as temporary or seasonal workers taking up residence in the UK for less than 12 months) do not.


1 HC Deb, 12 October 2016, col 328

2 Oral evidence taken before the House of Commons Liaison Committee, 20 December 2016 (Session 2016–17), Q 38 (Theresa May MP)

3 The Prime Minister, HC Deb, 26 October 2016, col 273

4 European Union Committee, Scrutinising Brexit: the role of Parliament (1st Report, Session 2016–17, HL Paper 33)

5 European Union Committee, Brexit: acquired rights (10th Report, Session 2016–17, HL Paper 82)

6 Ibid., para 147

7 European Union Committee, Brexit: the options for trade (5th Report, Session 2016–17, HL Paper 72)

8 Written evidence from the Office for National Statistics (BMP0004), Table 1

9 European Union Committee, Brexit: UK-Irish relations (6th Report, Session 2016–17, HL Paper 76); European Union Committee, Brexit: Gibraltar (13th Report, Session 2016–17, HL Paper 116)

10 European Union Committee, ‘Brexit: devolution inquiry’ (27 January 2017): http://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-select-committee-/inquiries/parliament-2015/brexit-devolution [accessed 1 March 2017]

11 The treaties originally referred to the ‘common market’ but this was replaced in the Treaty of Lisbon (OJ C 306) by the ‘internal market’ which is defined in Article 26(2) of the Treaty on the Functioning of the European Union (OJ C 326).

12 Article 3(c) EEC, Treaty Establishing the European Community provided that the Community aspired to “the abolition, as between Member States, of obstacles to freedom of movement for … persons”. Articles 48 to 50 EEC provided for the free movement of workers, Articles 52 to 58 concerned the right to establishment and Articles 59 to 66 provided for the freedom to provide services.

13 Article 7 EEC, Treaty Establishing the European Community

14 For a more detailed exposition, see HM Government, Review of the Balance of Competences between the United Kingdom and the European Union, Single Market: Free Movement of Persons, Chapter 1: Historical Development and Current State of Competence, 2014: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/335088/SingleMarketFree_MovementPersons.pdf [accessed 22 February 2017].

15 Council Directive 90/365/EEC on the right of residence for employees and self-employed persons who have ceased their occupational activity (OJ L 180, 13 July 1990, pp 28–29); Council Directive 90/366/EEC on the right of residence for students (OJ L 180, 13 July 1990, pp 30–31), and Council Directive 90/364/EEC on the right of residence for persons of sufficient means (OJ L 180, 13 July 1990, pp 30–31)

16 Directive 2004/38/EC, 29 April 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ L 158/77, 30 April 2004, pp 77–123)

17 Council Regulation 883/2004/EC on the coordination of social security systems, (OJ L 200/1, 7 June 2004, pp 1–49) and Council Regulation 987/2009/EC laying down the procedure for implementing Regulation 883/2004/EC on the coordination of social security systems, (OJ L 284/1, 30 October 2009, pp 1–42).

18 Since then, the EU has also adopted Regulation 492/2011/EU of the European Parliament and of the Council on the Freedom of Movement for Workers within the Union, (OJ L 141/1, 27 May 2011, pp 1–12), and Directive 2014/54/EU of the European Parliament and of the Council on Measures Facilitating the Exercise of Rights Conferred on Workers in the Context of Freedom of Movement for Workers, (OJ L 128/8, 30 April 2014, pp 8–14) among other measures.

19 Article 2(2) of Council Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ L 158, 30 April 2004, pp 77–123)

20 See The Immigration (European Economic Area) (Amendment) Regulations 2012 (SI 2012/1547) and The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2012 (SI 2012/2560).

21 The Immigration (European Economic Area) Regulations 2016 (SI 2016/1052)

22 Theresa May MP, Speech on The Government’s negotiation objectives for exiting the EU, 17 January 2017: https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm-speech [accessed 28 February 2017]

23 Q 84. Following a referendum in February 2014 in which the Swiss voted to impose quotas on migrants, the Swiss Federal Council adopted a negotiating mandate in February 2015 with a view to adapting the Agreement on the Free Movement of Persons (AFMP) that Switzerland had reached with the EU in 1999. Switzerland was not able to reach agreement with the EU, and has instead adopted domestic legislation deemed compatible with the AFMP in order to preserve its other bilateral agreements with the EU.

24 See HM Government, Alternatives to membership: possible models for the United Kingdom outside the European Union, March 2016, para 3.1(b) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504661/Alternatives_to_membership_possible_models_for_the_UK_outside_the_EU_Accessible.pdf [accessed 22 February 2017]

25 Note that where employment is incidental to the exercise of another Treaty right—e.g. students—different rules apply.

26 HM Government, Review of the Balance of Competences between the United Kingdom and the European Union- Single Market: Free Movement of Persons, para 2.8: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/335088/SingleMarketFree_MovementPersons.pdf [accessed 22 February 2017]

27 Ibid., para 2.9

28 The Conservative Party, The Conservative Party Manifesto 2015, p 29: https://s3-eu-west-1.amazonaws.com/manifesto2015/ConservativeManifesto2015.pdf [accessed 28 February 2017]

31 ONS, What information is there on British migrants living in Europe? (27 January 2017): https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/articles/whatinformationisthereonbritishmigrantslivingineurope/jan2017 [accessed 22 February 2017]

32 Public Administration Select Committee, Migration Statistics (Seventh Report, Session 2013–14, HC 523)

33 Written evidence from the Office for National Statistics (BMP0004), Section 3.2

35 Written evidence from the Office for National Statistics (BMP0004), Box 3

36 Written evidence from the Office for National Statistics (BMP0004). Other surveys, such as the Annual Population Survey, use country of birth as a measure, but the ONS point out that in 2015, 40% of the 8.6 million UK residents born outside the UK were British nationals—see written evidence from the ONS, Section 3.2.

37 Oral evidence taken before the House of Commons Home Affairs Committee, 24 January 2017 (Session 2016–17), Q 37 (Phoebe Griffith)




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