Chapter 2: What is free movement?
The free movement of persons: legal basis
16.The free movement of persons is one of the ‘four freedoms’ underpinning the Single Market, along with free movement of goods, services and capital.15 Free movement of persons was initially limited in scope, principally allowing for free movement of workers.16 Over time, free movement of persons was extended to include groups such as jobseekers, students, and individuals who are self-sufficient.17 The 2004 Citizens’ Rights Directive sought to codify the rights of EU citizens and their family members to move and reside freely in EU Member States.18 The Directive is complemented by rules for social security coordination, guaranteeing equality of treatment alongside citizens of the host Member State.19
17.The Citizens’ Rights Directive states that any EU citizen has a right to reside in another Member State if they:
(i)are a worker or self-employed person,
(ii)a jobseeker,
(iii)or a student;
(iv)are self-sufficient;
(v)have been resident for less than three months;
(vi)are a permanent resident—that is, they have lived legally and continuously in the Member State for at least five years; or
(vii)are a family member of someone with the right to reside.20
18.These rules are not absolute, but allow for some controls on EU migration. For instance, free movement may be restricted for reasons of public security, public policy or public health (though any restrictions must be proportionate and individually assessed). Furthermore, EU citizens who have been in another Member State for more than three months and less than five years lose their right to reside if they are economically inactive, and incapable of supporting themselves.21
19.Free movement rights may be exercised by citizens of all 28 EU Member States and their dependents. Citizens of three non-EU states that are members of the European Economic Area (EEA)—Iceland, Norway and Liechtenstein—also have free movement rights within the EU28; Switzerland is party to free movement through separate agreements. For simplicity, and unless otherwise stated, when we refer to ‘EU’ and ‘non-EU’ countries below, we intend ‘EU’ to encompass the EU and EEA states whose citizens benefit from free movement.
Box 2: Short-term migration patterns: free movement in practice
|
Many people who work in the cultural sector travel between the UK, and the EU27 and EEA, for short periods of time. They might tour various countries, either on a self-employed basis or as a posted worker (see paragraphs 48–50) For the duration of such trips, these people count as ‘short-term migrants’. The Office for National Statistics (ONS) records numbers of short-term international migrants using three definitions:
Notably, the ONS counts short-term migration numbers separately from long-term net migration, which only covers people who move to the UK for periods of 12 months or longer. In the year ending June 2015, the ONS reported 117,000 short-term visits to England and Wales from outside the UK. Of these, 89,000 (76%) were made by EU citizens. The total number of visits to England and Wales for work or study purposes in the year ending June 2016 was 209,000.23 People travelling for work accounted for 50,000 (13%) of all short-term international visits from three to 12 months away from England and Wales for the year ending June 2015. The majority of these visits, 43,000 (86%), were made by British citizens.24 |
Figure 1: Short-term international migration flows for employment and work (other) for 3 to 12 months, England and Wales, year ending June 2004 to year ending June 2015
Source: Office for National Statistics, Short-term International Migration for England and Wales: year ending June 2015 (25 May 2017): https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/bulletins/shortterminternationalmigrationannualreport/mid2015estimates [accessed 19 July 2018]
14 European Union Committee, Brexit: acquired rights (10th Report, Session 2016–17 HL Paper 82). Witnesses provided much evidence about the current importance of EU27 citizens to their industries. While these people’s employment will be guaranteed under the citizens’ rights provisions of the draft Withdrawal Agreement (should they decide to remain in the UK), we cite this evidence in our analysis of the extent to which the cultural sector depends on immigrants from the EU27.
15 The treaties originally referred to the ‘common market’ but this was replaced in the Treaty of Lisbon (OJ C 306, 17 December 2018) by the ‘internal market’, which is defined in Article 26(2) of the Treaty on the Functioning of the European Union (OJ C 326, 26 October 2012). Throughout the rest of this report, “free movement” refers to the free movement of persons.
16 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 free movement of workers, Articles 52 to 58 were concerned with the right to establishment, and Articles 59 to 66 outlined the freedom to provide services.
17 This has happened through treaty change, secondary legislation and the evolving case law of the Court of Justice of the European Union (CJEU)
18 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158, 30 April 2004)
19 Social Security Coordination is set out in Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ L 166, 30 April 2004), 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)
20 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158, 30 April 2004)
21 European Union Committee, Brexit: UK-EU movement of people (14th Report, Session 2016–17, HL Paper 121), pp 8–9
22 Office for National Statistics, Short-term International Migration for England and Wales: year ending June 2015 (25 May 2017): https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/bulletins/shortterminternationalmigrationannualreport/mid2015estimates [accessed 19 July 2018]
23 Office for National Statistics, Short-term International Migration for England and Wales: year ending June 2016 (24 May 2018): https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/bulletins/shortterminternationalmigrationannualreport/yearendingjune2016 [accessed 19 July 2018]
24 Office for National Statistics, Short-term International Migration for England and Wales: year ending June 2015 (25 May 2017): https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/bulletins/shortterminternationalmigrationannualreport/mid2015estimates [accessed 19 July 2018]