Cameron's migration speech and EU law: Can he change the status quo?

On November 28th, David Cameron delivered a long-awaited speech addressing public concerns on EU migration. Its essence was not anti-European: the British prime minister underlined Britain’s long-term commitment to the principle of free movement, as one of the cornerstones of the single market. Having understood that quotas or ‘emergency brakes’ on EU migrants were unacceptable to all Britain’s partners (including German Chancellor Angela Merkel), Cameron pulled back at the last minute from proposing such ideas. He therefore upset hardline Conservative eurosceptics, who knew that if the UK made a cap on EU immigrants its chief negotiating demand, a British exit would become much more likely.

The prime minister’s speech included five proposals:

• To deport EU job-seekers who have not found work within six months; and to stop such job-seekers accessing ‘universal credit’ (which will incorporate the current job-seeker’s allowance) when it is rolled out from 2015 onwards, for their first four years in Britain.
• To impose a four-year period before EU migrants have access to in-work benefits like tax credits and housing benefit.
• To stop workers in one EU member-state collecting child benefit there for children who live in another member-state. 
• To prevent workers from countries that join the EU from seeking work in the rest of the EU, until these countries’ economies have partially converged with those of the existing members.
• To make it easier to deport criminals, fraudsters and beggars from other member-states, and to ban their re-entry.

Are these proposals achievable through new EU legislation, or would the Union’s treaties need amendment? And how likely is it that other member-states would agree to the changes?

The principles of free movement and the equal treatment of workers have been enshrined in the treaties, developed through secondary legislation in the form of directives and regulations, and extended by rulings of the European Court of Justice (ECJ). Any new or amended directives or regulations would have to be proposed by the European Commission and adopted by a majority in the Council of Ministers and the European Parliament. Amendments to secondary legislation that do not amount to discrimination between EU citizens and those of the host member-state would not require treaty revision. However, fundamental changes to secondary legislation that affect the principles of free movement and equal treatment would require treaty change and hence the unanimous agreement of 28 member-states. This distinction is crucial for understanding the legal and political feasibility of Cameron’s proposals.

Restricting the rights of job-seekers: The prime minister’s proposals lacked precision. First, he mentioned the possibility of requiring EU citizens to prove that they had a job offer before coming to the UK. This may have been a wish rather than a concrete proposal, but it would in any case be contrary to the treaties and impossible to implement in practice. Later, Cameron said that Britain would seek to deport EU migrants who failed to find a job within six months of entering the country. Other member-states have already considered this. Under EU law, EU citizens need to be working, studying, or self-sufficient in order to live legally in another member-state.

The ECJ, however, has extended some of these rights to job-seekers, so that EU migrants are allowed to live in a member-state if they can prove that they have a genuine chance of getting a job. According to the Court’s case law, member-states are permitted to limit the period for which unsuccessful job-seekers can access unemployment benefits. Therefore, restrictions on job-seekers, if not unconditional (that is to say, if they are not solely based on time limits, but they also take into account the migrant’s personal situation and their chances of  finding a job) may well comply with EU law. They may also find some political support, notably from Western European member-states such as the Netherlands, Austria and Germany.

Cameron also said that he would stop EU migrants who had not yet worked in the UK from accessing the new ‘universal credit’, which will be introduced in 2015 if the Conservatives remain in power. This would mean they would have no access to unemployment benefit at all while looking for work in Britain. The ECJ’s case law has given job-seekers some rights of access to unemployment benefits, when they assist with integration into the host country’s labour market, so this proposal may put the government on collision course with the ECJ.

Limitations on EU migrants’ access to in-work benefits: The Conservatives may find it hard to impose temporary limits on EU migrants accessing in-work benefits: Article 45 of the Treaty on the Functioning of the European Union (TFEU) forbids discrimination against workers “as regards employment, remuneration and other conditions of work and employment”. Restricting migrants’ access to tax credits could amount to discrimination, since they are a condition of work and employment, and so the reform could require treaty change. Even if UK government lawyers managed to convince Brussels that tax credits should not be seen as a condition of work, and rather as social assistance or a tax advantage, a qualifying period would still be contrary to both a 2011 regulation on the freedom of movement for workers and ECJ case law. Reforming this regulation would need a revision of the underlying treaty principles, and hence require treaty change.

Stopping child benefits being paid to children abroad: Under current EU rules, the children of EU parents working in the UK are entitled to receive child benefits from the UK, regardless of where those children live, provided that neither parent works and lives abroad with the children. This rule is part of a 2004 regulation that addresses situations where the children of EU workers do not live with their parents. Several EU governments support reform of this regulation. Nevertheless to stop EU citizens from accessing child benefits in certain circumstances could be considered as discrimination against EU workers – so some would argue that it required treaty change.

Temporary restrictions on workers coming from new member-states: This proposal should be much less problematic: imposing restrictions on workers coming from new member-states until “their economies have converged with the existing member-states”, as Cameron put it, would be legally and politically feasible. Workers from Romania and Bulgaria faced temporary restrictions on their right to free movement for a period of seven years after those countries acceded. Since accession treaties require the unanimous agreement of all member-states, the UK could, if it wished, insist on restrictions that endured until the accession state’s per capita income had reached a certain percentage of the EU average. But this proposal will not make much difference in the short term: no country is due to join the EU in the next five years.

Expulsion and re-entry bans on EU criminals, beggars and fraudsters: On December 1st the UK opted back into 35 measures of police and judicial co-operation (such as the Schengen Information System and the European Arrest Warrant), which help governments to exercise tighter controls over convicted and suspected criminals across the EU. The current migration debate makes the case for opting back into these measures even clearer: the more police and judicial co-operation there is, the more control the UK will have over EU criminals entering the country, including fraudsters. The ‘citizens directive’ allows member-states to expel EU citizens on the grounds of public policy or public security. Member-states can also ban expelled EU citizens from re-entering the country.

The ‘citizens directive’, however, requires a case by case analysis of expulsion and re-entry bans, and offers a system of procedural guarantees to ensure that EU citizens are protected from arbitrary expulsions and expulsions en masse. Article 27 of the directive has incorporated the ECJ’s case law and says that a criminal conviction is not sufficient reason to expel an EU citizen. Furthermore, the grounds for expulsion cannot be “invoked to serve economic ends”. Therefore, the UK, like any other member-state, is allowed to expel EU citizens on the basis of public policy or security, provided that the decision is based on a solid examination of the citizen’s personal circumstances. Indiscriminate expulsions of criminals, fraudsters or beggars are not allowed under EU law and would require legislative change, although probably not a revision of the treaties.

In sum, several of Cameron’s proposals might require treaty change in order to be legally watertight, since they would discriminate against EU workers. Indeed, Cameron himself said that treaty change would be necessary. In particular, imposing temporary restrictions on access to in-work benefits and expelling job-seekers after six months might violate the principles of the free movement of workers and equality of treatment. Banning parents from drawing child benefits for children abroad could also be regarded as an obstacle to the free movement of workers and might require treaty change.

The UK could, however, try to achieve limited reforms to the rules on access to benefits which would be both treaty-compliant and politically attractive to some other governments; for example, limiting the time that job-seekers can stay in the UK when they have failed to prove that they have a real chance of finding employment or that they are actively looking for a job. The UK could certainly impose restrictions on the right of free movement of workers from future accession countries. Britain can exercise more stringent controls on EU criminals entering the country through the effective implementation of the 35 JHA measures the government has just opted back into. The UK does not need to change EU law in order to expel criminals from its territory, since the ‘citizens directive’ already allows for it.

Cameron will still have to contend with the possibility of the European Court of Justice scrutinising secondary legislation that challenges the principle of free movement. The ECJ has in the past sought to extend the rights of EU citizens working or looking for work in other member-states. Amendments to secondary legislation could be quashed by the Court, on the basis of its interpretation of the treaties. That is why in the long run Cameron may need to underpin several of his proposals by treaty change.

Changing the treaties through the normal method – the holding of a convention of MEPs, national parliamentarians and government representatives, followed by an inter-governmental conference (IGC) leading to an unanimous agreement among 28 member-states, each of which then has to ratify the new treaty – would take many years. At the moment virtually no member-state other than Britain has an appetite for treaty change. Many of them fear that parliaments or electorates (in those countries that would need to hold referendums) would reject the changes, given the strength of eurosceptic feeling in much of Europe. Furthermore, the economic situation in the eurozone, though far from healthy, is not so dire that its leaders believe its rules must be revised in a new treaty. Governments are also reticent because they know that embarking on treaty change would be like opening Pandora’s Box: almost every government has demands that it wishes to see fulfilled in a new treaty. There is no chance of getting a major new treaty ratified by Cameron’s self-imposed referendum deadline of 2017.

Could Cameron find a speedier method? Possibly. The ‘simplified procedure’ allows changes to internal policies that do not involve the transfer of competences to the EU. Under this procedure, EU leaders could dispense with the convention and the IGC. But the procedure cannot be activated without a unanimous agreement to do so, and then the new text still has to be agreed unanimously and then ratified by all members. None of which would be quick or easy.

Probably the only sort of ‘treaty change’ that is feasible by 2017 is a political agreement among heads of government to make specific changes in the future. British officials are thinking about emulating the method used to deal with Ireland’s rejection of the Lisbon treaty in the referendum of 2008. A protocol was drawn up, with language that reassured Ireland over the Lisbon treaty’s provisions on abortion, tax and neutrality. These reassurances helped to persuade the Irish to vote Yes in a second referendum – though they had to wait for the Croatian accession treaty, to which the Irish protocol was tied, before the protocol became legally binding.

If the UK aims to change the rules through this kind of ‘post-dated cheque’, it will face many problems. In a referendum campaign in 2017, would voters believe promises of change that depended on other countries ratifying future treaties? Furthermore, the provisions of the Irish protocol were uncontroversial. Any British attempt to push through the revision of EU rules on free movement via a similar protocol – requiring unanimity – would be fraught. Central European governments have already criticised some of Cameron’s ideas, but many in Western and Southern Europe will also oppose attempts to undermine free movement for workers and job-seekers.

If Cameron bangs the table, resorts to Eurosceptic rhetoric and challenges the principle of free movement, he may achieve very little. But if he embarks on a charm offensive in Europe, building alliances and forging friendships with other EU leaders, he may be able to achieve parts of his package.

Camino Mortera-Martinez is a research fellow at the Centre for European Reform.