Can migration be controlled inside the EEA?

Today, in response to the announcement by Labour’s Keir Starmer about the possibility of the UK remaining in the EEA after Brexit; Labour Member of Parliament for Aberavon Stephen Kinnock tweeted the below message:

 

In non-twitter speak:

“Keir Starmer calls for a settlement on immigration. Article 112 of the European Economic Area (EEA) agreement allows for a quota-based immigration system.” 

What does Mr Kinnock mean? Is it feasible? Should the Government go down this route in relation to Brexit? In this article we will try to address those issues. 

Before we go any further, we should make something clear – the UK is currently a member of both the EU and the EEA, and the absolute right of free movement has never existed in either. 

UK governments (of both Labour and Conservative parties) have however repeatedly failed to use the tools at their disposal to manage migratory flows. 

A prime example of this was the government’s failure to use transitional controls on the A8 countries during the enlargement of the EU. 

As European Commission President Jean-Claude Juncker explained:

“In 2004, the U.K. did not use the transitional periods that would have allowed it to phase in the right of free movement of the citizens of eight new member states.

As a result, over the past decade the U.K. attracted a record number of mobile EU citizens.”


The rules and regulations that cover the rights of EU citizens in other EU states are set out in Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004. 

Here is a description of the rules from the EUR-Lex European union Law website. We have highlighted relevant parts in red:

KEY POINTS

  • EU citizens with a valid identity card or passport may:
    Enter another EU country, as may their family members – whether EU citizens or not – without requiring an exit or entry visa.
  • Live in another EU country for up to 3 months without any conditions or formalities.
  • Live in another EU country for longer than 3 months subject to certain conditions, depending on their status in the host country.
  • Those who are employed or self-employed do not need to meet any other conditions. Students and other people not working for payment, such as those in retirement, must have sufficient resources for themselves and their family, so as not to be a burden on the host country’s social assistance system, and comprehensive sickness insurance cover.
  • Have to register with the relevant authorities if living in the country longer than 3 months. Their family members, if not EU nationals, require a residence card valid for 5 years.
  • Have the right to be treated on an equal footing with nationals of the host country. However, host authorities are not obliged to grant benefits to EU citizens not working for payment during the first 3 months of their stay.
  • EU citizens, or family members, may be expelled if they behave in a way that seriously threatens one of society’s fundamental interests.

These rules are also explained in the EUROPEAN COMMISSION document ‘Freedom to move and live in Europe: A Guide to your rights as an EU citizen’.

In this document it says:

“Every EU citizen has the right to reside on the territory of the host EU country for a period of up to three months without any conditions or formalities other than the requirement to hold a valid identity card or passport.

EU citizens benefit from the right to reside without any conditions and formalities for a period of six months and even longer, if they continue to seek employment in the host EU country and have a genuine chance of getting work

You and your family members might be required to report your presence within a reasonable period of time after arrival. This allows the public authorities of the host EU country to be fully aware of population movements in their territory

What if you want to stay for longer than three months?
It depends on your status.
Your right to reside for more than three months is subject to certain conditions. The nature of these conditions depends on your status in the host EU country. Workers and self-employed persons have the right to reside without any conditions other than being a worker or self-employed person.

Students…
Students must meet the following three conditions:
• be enrolled at an establishment for the principal purpose of following a course of
study or vocational training;
have comprehensive sickness insurance cover there; and
• assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family not to become a burden on the host EU country’s social assistance system during their residence.
… and other economically inactive persons
Other economically inactive persons (e.g. unemployed, retired, etc.) must also have sufficient resources for themselves and their family not to become a burden on the host EU country’s social assistance system during their residence and have comprehensive
sickness insurance cover.”


Some of the powers the UK government has to manage migration are described in The Immigration (European Economic Area) Regulations 2016 which states:

REFUSAL OF ADMISSION AND REMOVAL ETC
Exclusion and removal from the United Kingdom
23.—(1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation
11 if a refusal to admit that person is justified on grounds of public policy, public security or public health in accordance with regulation 27.

(2) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if
that person is subject to a deportation or exclusion order, except where the person is temporarily admitted pursuant to regulation 41.
(3) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if the Secretary of State considers there to be reasonable grounds to suspect that the person’s
admission would lead to the misuse of a right to reside under regulation 26(1).
(4) A person is not entitled to be admitted to the United Kingdom as the family member of an
EEA national under regulation 11(2) unless, at the time of arrival—
(a) that person is accompanying the EEA national or joining the EEA national in the United
Kingdom; and (b) the EEA national has a right to reside.
(5) If the Secretary of State considers that the exclusion of the EEA national or the family
member of an EEA national is justified on the grounds of public policy, public security or public
health in accordance with regulation 27 the Secretary of State may make an order prohibiting that
person from entering the United Kingdom.
(6) Subject to paragraphs (7) and (8), an EEA national who has entered the United Kingdom or
the family member of such a national who has entered the United Kingdom may be removed if—
(a) that person does not have or ceases to have a right to reside under these Regulations;
(b) the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 27; or
(c) the Secretary of State has decided that the person’s removal is justified on grounds of
misuse of rights under regulation 26(3).

Refusal to issue or renew and revocation of residence documentation 24.—(1) The Secretary of State may refuse to issue, revoke or refuse to renew a registration certificate, a residence card, a document certifying permanent residence or a permanent residence card if the refusal or revocation is justified on grounds of public policy, public security or public health, or on grounds of misuse of rights in accordance with regulation 26(3).

(2) A decision under regulation 23(6) or 32(4) to remove a person from the United Kingdom, or a decision under regulation 31 to revoke a person’s admission to the United Kingdom invalidates a registration certificate, residence card, document certifying permanent residence or permanent residence card held by that person or an application made by that person for such a certificate, card or document. (3) The Secretary of State may revoke or refuse to renew a registration certificate or a residence card if the holder of the certificate or card has ceased to have, or never had, a right to reside under these Regulations.

Cancellation of a right of residence 25.—(1) Where the conditions in paragraph (2) are met the Secretary of State may cancel a person’s right to reside. (2) The conditions in this paragraph are met where— (a) a person has a right to reside in the United Kingdom as a result of these Regulations; (b) the Secretary of State has decided that the cancellation of that person’s right to reside in the United Kingdom is justified on the grounds of public policy, public security or public health in accordance with regulation 27 or on grounds of misuse of rights in accordance with regulation 26(3)”

_______________________________________________________________

The EEA Agreement (which all EU countries and three members of EFTA are signatories to), allows for “Freedom of movement for workers…among EC Member States and EFTA States.”

However, please note that it states “for workers” and it also specifies that the right of freedom of workers should be used:

“to accept offers of employment actually made.

The same agreement allows members to block citizens from the EU or other EFTA states from residing in their countries:

“On grounds of public policy, public security or public health” – Article 28 EEA Agreement


In order to to live and work in Iceland (a country that is in the EEA but not in the EU) you need  a residence/work permit from the Directorate of Immigration.

The Directorate of Immigration website states this about EEA/EFTA citizens and their relatives:

“A citizen of an EEA/EFTA member state may stay and work in Iceland without a permit for up to three months from his/her arrival in Iceland, or stay up to six months if he/she is seeking employment. If the individual resides longer in Iceland, he/she shall register his right to residency with Registers Iceland

Documents to be submitted:

Checklist for relatives of citizens of EEA/EFTA states. Print the checklist and check when gathering documents. Please include the completed list with the application.
Registration form, original, completed and signed by the applicant.
Copy of passport (does not need to be confirmed).

The copy should be of the main page and the page with the applicant’s signature.
Confirmation of family ties as applicable (for example: marriage certificate, birth certificate, death certificate, custody document, divorce document).

The document must be a confirmed copy of the original. The document must be confirmed by apostille stamp or double authentication if issued abroad, see here.

The copy must be stamped by the competent authority that is authorized to do so.
Support must be secure for the residence period, see here.

Medical insurance.

Applicants must submit a confirmation of insurance that is valid for at least six months, minimum coverage ISK 2,000,000, from an insurance company that is licensed to operate in Iceland, see here.
Housing certificate or rental agreement, unless the relative in Iceland owns the property.

The Directorate of Immigration may request additional documents in some cases.”


 While not a EEA member, Switzerland has signed a Free movement agreement with the EU.

Swiss rules for EU nationals mean that:

“Nationals of the EU/EFTA member states do not require a work permit. Within 14 days upon arrival in Switzerland and before commencing work for the new employers, they have to register with the local authorities and apply for a residence permit.

[EU Nationals] must register with the local authority (commune of residence) within 14 days of entering Switzerland.

No residence permit is required for a stay of less than three months, e.g. as a tourist, if you do not work in Switzerland. But if you plan to stay for more than three months you will require a permit. Cantonal law lays down which authority is responsible. The permit is valid for the whole of Switzerland, but you must notify the communal authority of any change in where you live.

A residence permit will be issued if you have enough financial resources for yourself and your family members to ensure that you will not have to claim welfare in Switzerland; you have health and accident insurance for as long as you are to stay. You are not entitled to welfare payments in Switzerland while you are looking for a job.”

Source: European Nationals in Switzerland, Swiss Federal Department of Foreign Affairs FDFA, Directorate for European Affairs DEA

Liechtenstein has (citing its small size) negotiated a quota system controlling the number of workers allowed to enter the country from other EEA countries.

Liechtenstein is a member of EFTA and the European Economic Area (EEA) – it participates in the four freedoms of the Single Market, but it has been permitted opt-outs over immigration. As Vicky Ford, a Conservative MEP has said:

“If you look at a country like Liechtenstein, in the EEA, they have access to free movement of goods within the single market [but they] have an absolute cap on the number of people given residency a year – and it is only 90 people. The ability to put an upper break is a concept that has been adopted by EEA members and they have been given access to the single market.”

Critics will argue that Liechtenstein has only been given its special status because of its small size – which is partially true. But the precedent of a special status nevertheless exists.

As well as it’s size, another reason for Liechtenstein’s opt out was that the EEA Council acknowledged “the vital interest of Liechtenstein to maintain its own national identity.”


So to sum up what we have already outlined, whether a state is in the EU or EFTA or the EEA doesn’t mean that it has totally open borders. These states are perfectly entitled to exclude those foreign citizens who fail to follow correct procedures, become a drain on their welfare systems or engage in criminality. 

Getting back to Mr Kinnock’s Tweet, what is article 112 and what does that mean for migration post Brexit? 

Several figures involved in the Brexit debate, most notably Dr Richard North, believe that the UK should apply to rejoin EFTA, retain EEA membership and use Article 112 to negotiate Liechtenstein-style controls over migration from the EU:

“Article 112 is part of the “safeguard measures” – popularly known as the “emergency brake”. Where serious economic, societal or environmental difficulties of a sectorial (sic) or regional nature arise, which are liable to persist, it allows Efta states (but not EU Member States) unilaterally to take appropriate measures to resolve them. EU Member States have to rely on the Commission to take action.

Liechtenstein unilaterally invoked the Article 112 safeguard measures. 

Under the current arrangement, Liechtenstein issues 56 residence permits for economically active and 16 permits to economically non-active persons each year. Half of the totally available permits are decided by lottery, held twice a year.

The numbers involved are, of course, small beer, but Liechtenstein is a tiny country. What matters is that a precedent has been set. Within the framework of the EEA Agreement, an Efta state has suspended freedom of movement and replaced it with a quota system for what amounts to an indefinite period.

Whatever the EU might declare in terms of freedom of movement being “non-negotiable” for EU Member States, it is undeniable that it is negotiable within the framework of the EEA Agreement, as it applies to Efta states. 

Therefore, if the UK chooses to follow the Efta/EEA option as an interim solution to expedite the Article 50 settlement, once the agreement is adopted it can follow the procedural steps pioneered by Liechtenstein. And by this means, it can impose limits on immigration from EEA states.”

Perhaps the UK would be able to use this approach to negotiate further migration controls, perhaps not. [Below we reproduce articles 112-113] 

 

Our view is that the EU would be loathe to grant the UK a ‘special status’, given all their insistence about no “cherry picking”. 

So what do we suggest?

Firstly, the UK government should apply to rejoin EFTA and signal our intention to remain in the EEA after Brexit.

As the UK would make a significant financial saving in terms of contributions and costs as a EFTA/EEA member instead of a EU/EEA member; some of the money could be channeled into providing extra resources into computer systems, training and staff.

Once we have left the EU, these extra assets would ensure that the full toolkit of legal measures to control migration are used to their full potential.

The Government could then set up a commission to investigate the efficacy of these measures, and a cost/benefit analysis of EU migration. 

If this commission shows that there are serious issues in this area, the UK should raise them (attempt to resolve them) in the EEA Joint Parliamentary Committee and the EEA joint Committee. This could be by amending the EEA agreement to ‘toughen up’ rules around low-skilled workers, for example.  

Only if our fellow EEA countries refused to countenance such changes should we be tempted to invoke Article 112. But if we did, it would certainly be a guaranteed way of getting all parties back around the table. 

In summary then, if the UK was to rejoin EFTA and retain EEA membership, there might be no need to use Article 112.

If we want to make Brexit a success, we should be as cordial and diplomatic as possible, and we should at least attempt to enforce the existing rules before trying to change them.  

 

 

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