BREXIT Impact on free movement of people
By KEERTHI KUMBURUHENA
(LL.B (Sri Lanka), LL.M (Aberdeen) Attorney-at-Law)
The Free Movement of People (FMP) is a principle which conveys the right to live and work within any European Union (EU) State and certain European Free Trade Association (EFTA) States which are members of the European Economic Area (EEA). According to Article 45 (1) of the Treaty on the Functioning of the European Union (TFEU), the freedom of movement of workers should be protected within the Union.
Any kind of discrimination relating to work, remuneration and other employment conditions on the grounds of nationality is prohibited. EU 'citizens' could accept job offers and move freely to occupy themselves within any of the 28 member countries and EFTA-EEA States like Iceland, Liechtenstein and Norway. They could stay in any member country not only during the employment but also after the completion of service.
Citizens' Rights & FMP
EU citizenship has been established by Article 20 (1) of the TFEU. Citizens have freedom of movement, residence, voting rights in EU elections, right to diplomatic protection and petition right (Art. 20 (2) (a)-(d)). It is prohibited to discriminate any citizen on the grounds of nationality (Art.18).
The Article 21 (1) of the TFEU says that 'Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.' Therefore, even an economically inactive person is entitled to the right of free movement despite his nationality.
However, according to EU Directive 2004/38/EC, an economically inactive person should have enough resources to prevent him being a burden on the social security benefits. Hence, member States have a right to reject social benefit claims if the claimant cannot prove that he is a job seeker and there is a higher possibility of being engaged (Art. 24 (2) &14 (4) (b), Directive 2004).
Economically Inactive Citizens
There are many economically inactive EU citizens in Britain. Economic inactivity has a negative impact upon the social security system of Europe. Although moving and working in another EU country is a fundamental right of all citizens, it would be unfair to have free and unconditional access to social benefits of another country.
The concept of EU citizenship has been continuously strengthened by the judgments of the ECJ - 'the Court'. It has recognised the rights of economically inactive citizens while interpreting the Articles 18 and 21 (1) of the TFEU when deciding citizenship cases.
In 'Michel Trojani Vs. Centre Public d'AideSociale de Bruxelles (CPAS) 2004', the Court has interpreted Article 18 and held that even an economically inactive citizen has a freedom of residence like an economically active person.
In the matter of 'Horst Otto Bickel and Ulrich Franz 1998,' the Court held that an EU citizen has a right a to have criminal proceedings conducted in a language in which he is conversant, and such a right should not be discriminated on the grounds of his nationality.
In 'Maria Martinez Sala Vs. Freistaat Bayern 1998,' a Spanish lady was unemployed at the time she applied for child raising benefits in Germany. Her social benefit claim had been rejected on the basis that she was not a national of Germany. The Court held that though she was not a national she was a legal resident of Germany and therefore entitled to the benefits.
In 'Baumbast and R Vs. Secretary of State for the Home Department 2002', while interpreting Article 18, the Court held that even a person is economically inactive, he has a legal right to reside in any member country if he was an EU citizen.
Significant retreat by ECJ
Recent decisions of ECJ indicate a significant retreat from its past view in terms of FMP. In 'Peter Brey Vs.
Pensionsversicherungsanstalt 2013,' it was held that if an economically inactive person claims social security benefits, he should have satisfied the primary conditions required for legal residencies. In other words, if a citizen is unable to comply with the said conditions then he would not be entitled to social security benefits.
The Court further held that a citizen who does not have enough resources to maintain himself and family, is a burden and consequently it could have an impact upon the social benefits system of that country. Therefore, before granting social benefits, individual conditions of the person should be considered.
In the matter of 'Elisabeta Dano and Florin Dano Vs. Jobcenter Leipzig 2014,' it was held that a person who was not capable of being a legal resident could not be entitled to have equal treatment in terms of social assistance benefits.
In 'Jobcenter Berlin Neukolln Vs. Nazifa Alimanovic and Others 2015,' it was held that instead of individual condition test, an accumulative impact test should be followed. This means, instead of considering the burden placed upon individual claims, the overall impact by accumulation of such claims should be considered in determining the policies relating to social assistance benefits.
The said judgment indicates that the Court has left more discretion to the member countries to decide upon the policies relating to economically inactive persons, because only a member country could easily measure the accumulative impact of claims affecting the benefits schemes.
Furthermore, due to the strict application of legal residence test in terms of social benefits, there were many complaints from non-British EU residents in Britain as their social benefits were refused because they had no legal right of residence. Consequently, commission filed a case against UK saying that UK authorities have discriminated against EU citizens.
In the said case 'European Commission Vs. United Kingdom of Great Britain and Northern Ireland 2016,' it was held that there was no discrimination perpetrated by UK in requiring legal residencies in order to provide social benefits and therefore Article 4 of Regulation No. 883/2004 had not been breached.
Death of FMP
On 29 March 2017, the British Government formally informed EU regarding its exit following Article 50 (2) of the Treaty on European Union (TEU). The scheduled departure is on 29 March 2019. Now the UK should renegotiate trade deals with other EU States and organise how the exit should be performed. A two year period is given under Article 50 (3) to organise such an exit.
If the UK is unable to organize a proper exit, it could request for an extension of another two-year period with the consent of Member States. Otherwise, it would be automatically out from all trade deals with the Union. Until a proper exit is organised, the UK should follow EU law as usual, which means FMP is still alive.
However, sometimes it would be impossible to conclude all negotiations with EU and its members within the period given in Article 50 (3). Additionally, as an internal exit solution, European Union (Withdrawal Bill) was introduced in July 2017 to repeal the 1972 European Communities Act. After the exit, the UK could anytime re-join the EU by following the procedure in Article 49 and enjoy FMP benefits (Art. 50 (5), TEU).
Hard Brexit - No FMP
A hard Brexit means the UK would leave both EU Single Market and the Customs Union. Consequently, there would be no FMP between the UK and the EU. The British Government does not have to pay any contributions to the EU. UK may adopt WTO and UNCITRAL Model Laws and trade with EU States based on them. In addition, British Parliament could prepare more national legislation governing trade, tariffs, borders and customs.
One of the main benefits of a hard Brexit would be, the UK could easily and freely engage in free trade contracts with any country in the world. However, WTO Regulations may limit the freedom of UK and therefore future trade deals with the EU would become more difficult. A soft Brexit means the UK would remain either in the EEA or Customs Union. A significant benefit of this is the possibility to continue FMP. For instance, though Norway has joined the EEA, they are not part of the Customs Union.
Norway is member of the EFTA which was founded in 1960 to allow European countries which are not EU members, to enjoy benefits of free trade among them. FMP is included in the objectives of EFTA Convention. An issue in the Norway Model is though it does not confer voting rights in theEU decision making process, it is bound to follow EU policies governing the EEA.
If the Norway Model could be followed by the UK, then the right of FMP would be protected, and the UK could remain part of the Schengen area. In addition, the UK would be able to follow any trade policies with non-EU countries because it would not be bounded by the EU Customs Union. However, the UK would be bound by EU laws in certain areas except in defence, agriculture and fisheries, although they leave the EU, and UK would have to continue paying contributions to the EU.
Medium Brexit with (out) FMP
A medium Brexit option such as the Swiss Model has certain benefits. Switzerland is neither a full member of the EEA nor of the Customs Union. They have a limited access to EEA. In addition, Switzerland is also a part of EFTA. There are separate bilateral agreements between them and the EU including recognition of FMP. Although the FMP was refused by a referendum due to migration issues in 2014, it was recognised again in a 2016 agreement with EU.
Another example is Turkey, which is a part of the Customs Union and adheres to a common tariff system when entering the EU and therefore movement of goods into EU have become much easier. However, FMP does not exist in this model. Although the objective of FMP was included in Turkey - EU agreement 1963, it is still under negotiations. In the Turkish Model, it is difficult to pursue separate isolated trade policies with non-EU countries.
Towards a better option
Since Article 50 has been almost invoked, it is high time the UK Government renegotiated its trade deals with the EU. In view of the recent citizenship cases, there is a significant retreat by the ECJ from its past view and suggests a more limited version of FMP.
To avoid complex trade issues, remaining in the EEA and the Customs Union with a limited form of FMP would be a better option.
Finally, such economic cooperation between UK and the EU would allow EU citizens to enjoy the benefits of FMP while delivering their services across the Europe.
Solution must be acceptable to Tamils Separate State is not a reasonable request - Former Army Commander, General Gerry De Silva RWP, VSV, USP
- UN damns Lanka 14,000 minors in childcare centres Calls for urgent reforms
- Russia restricts Lanka tea over beetle scare Top-level delegation off to Moscow
- Call to criminalize marital rape Justice Ministry seeks Cabinet approval
- Jumbo killings Armed protection unit to be set up Fines, jail terms to be increased
- Crossovers loom prior to polls
- SC issues notice on Elections Chief
- Jilted SLFP shuns JO forever
- CEB TU threatens strike Gives 18th as ultimatum
- Gnanasara Thera’s request for foreign travel denied
- Chinese envoy says OBOR will take Sino-Lanka ties to new level
- Police Chief in pre-poll warning Errant officers will be dealt with strictly
- Court extends Stay Order on Gota case
- Sriyani as State Minister of PCs and LG JO crossover pledged support for MS
- Rains to prevail Landslide warning to Galle, Kalutara to be reviewed
- BJP lauds ‘Ram Setu’ findings Hits out at critics
- Two held for impersonation at exam centre
- Female Genital Mutilation Advice sought from medical experts
- Hambantota Port to China India raises security concerns
- Indian Air Force Chief at passing out parade
- Statement from the Embassy of the State of Palestine
- LG Governance first to collapse in N&E
- Asgiriya Secy criticizes Govt
- Namal’s Hello Corp case on 13 December
- Attanayake’s foreign travel request Court to consider on 4 Dec
- Drugs & alcohol abuse in NE Religious reps to address issue
- Interesting battle at Havelock Park
- Thurstan win inaugural golf tourney
- History making Pulisic US men’s footballer of the year
- Knicks down Nets despite early exit for Porzingis
- 34th Mercantile Individual Tournament 2017 McLarens shuttlers Overall Champions
- Retired Hewitt takes tilt at Aussie Open doubles
- Lamborghini World Final 2017 Malagamuwa finishes third
- Committee clears Thilaka as SL coach
- Basnayake uncontested president at SLCF
- Premier League Club Cricket Primosh scores second ton
- Vinod and Taniya win Junior golf titles
- Taveesh wins two Gold medals
- Austin Waugh, in Australia's U-19
- CH come back to win
- Smith foils England again
- Emphatic win for CR
- No Malinga in T20 squad
- ‘Singer Trophy’ Under-19 Cricket Paceman Bandara steers Kingwood
- Federer voted BBC overseas sports personality of the year
- SLC looking to re-launch showpiece T20 league
- Astron wins again at SLIM NASCO 2017
- NDB brings Santa to the doorstep
- Com Bank opens branch No. 259 in Yatiyantota
- Amãna Takaful relocates Matale Branch
- Lotus Tyres rewards sales agents
- DFCC Bank sponsors 2017 Inter-School Golf Tournament
- Huawei announces Christmas promotion
- Elephant House recognized by Interbrand
- Singer (Sri Lanka) partners with Pan Asia Bank
- Disney deal suggests the Tax bill may mean little for the economy
- Commonwealth Bank admits failures in money laundering case
- Japanese business confidence hits 11-year high
- Eurozone economy to grow at faster rate, says Central Bank
- SEC to mandate dual roles for CEOs & Chairmen
- Alumex to commence EU & Aus exports
- Fiscal Policy Act remains toothless: Governor
- Samantha Rajapaksa gives up all AMW posts
- 'Publish excuses for corporate governance non-compliance'
- Jetwing Symphony IPO oversubscribed
- Shares recover from an 8-month low
- Christmas cheer is in the air!
- So, this is Christmas!
- A Time of Gifts Winding up
- Landmine deaths soar in 2016 With record number of child victims monitors
- Unravelling Nietzsche’s ‘death of God’ mystery
- Canada’s pivot to China hits a snag
- Brexit: The UK’s four options
- When the heart calls out, on a starry night
- On eve of climate summit Macron reminds Trump of ‘responsibility to history’
- FGM/FGC Victims speak out
- Wigneswaran sowing seeds of communalism
- SLFP supports devolution of power – Lasantha Alagiyawanna
- If Bond scammers are not prosecuted…President will lose his credibility –Bandula Gunawardena
- All information security issues are not cyber crimes
- We want a change in Muslim representation– Hasen Ali
- Blessed are the peacemakers
- Disinformation campaigns and public mistrust
- Alleged human rights violations Lord Naseby defends Sri Lanka
- Neecha Dosha of planets and how it is cancelled Neechabhanga Rajayoga
- Vastu defects and bathrooms
- Are you endowed with Pancha Maha PurushaYoga?
- God Aiyanayake: Guardian Deity of Jungle and Village
- Good thoughts eliminate bad planetary influence
- The Disaster Artist: The (un)making of a movie
- Our children and our cinema
- INTERPRETING ASIAN CINEMA: CHALLENGES AHEAD
- How Sanskrit journalism is slowly hogging headlines
- ice manufacturing in South Asia
- CMSC’s season finale concert
- Two documentaries on Sri Lanka in Film South Asia 2017
- Politics of nostalgia
- Kite Surfing Lanka Kalpitiya An experience of a lifetime
- Ella and mini Adam’s Peak
- A cave of history -Ravana Cave
- Silvia Senanayake Dazzles at Mrs. Asia International
- Let’s Taco Colombo
- THE WRITER’S KITCHENNETTE MULLED WINE
- Hunger gnaws at Rohingya Children in camps
- Defeating IS Russia has ‘accomplished’ task
- Saudi Princess Ameera Aidan fights sex exploitation
- Hacking into the gate
- Review: A Bad Moms Christmas Relatable holiday humour
- A must watch superhero film!