European Union Migration and Free Movement - Essay Example

European Union Migration & Free Movement Number Department Introduction It is a fact that the free movement of persons is considered one of the most fundamental legal provisions and frameworks of the European Union (EU). The sacrosanct nature of this freedom is underpinned by economic and civil expedience, so that it is impossible to sidestep it. Particularly, while free movement is integral to the realisation of the single market, it also provides people and their families to exercise the right to mobility. The flipside of this provision has been its penchant for predisposing member states to the inability to control entry and residence within their territory. Eventually, this has led to the member states’ trying to minimise to stem the burden that unbridled movement of persons place on them. The EU and its member states have attempted to salvage this situation by proposing and ratifying laws such as directives, regulation and articles in law, as shall be seen forthwith. First, it is important to note that even in the face these challenges, EU has never made any dereliction on the right to free movement. Particularly, according to Barnard (2007, 23) and Cholewinski (2005, 252), Article 21 (1) of the Treaty on the Functioning of the EU (TFEU) continues to make provision for EU citizens to exercise free movement. The same applies to Regulation EEC 1612/68 and Regulation EU No 492/2011. In this light, there are already over 2 million EU citizens who are exercising this right. EU has tried to resolve this problem that tries to harmonise the dynamics of free movement and the burden that accompanies it through the issuance of directives such as the Directive 2004/38/EC. The Directive 2004/38/EC for instance acknowledges the fact that free movement is attributable to citizens of the EU or the EEA and the direct family members of EU citizens. The latter qualification is relevant since it expunges the non-direct family members of EU or EEA from accessing this right. However, Directive 2004/38/EC is categorical that these family members must be direct dependents of the EU citizen. The Directive 2004/38/EC is also important in absolving EU member states from the burden of free movement because it specifies those who are not qualified to enjoy the right to free movement. For instance, the Directive 2004/38/EC rules out those citizens who live in their home EU member states but have not worked in other EU member states. In this respect, all movement by non-EU family members into the home estate is subject to national law. Again, Directive 2004/38/EC also recognises the right of older EU member states to exercise the provisions catered for in the transitional arrangements. The transitional arrangements inhibits EU citizens’ ability to move freely to work, provided that these citizens originate from new EU member states such as Romania and Bulgaria. The inhibition in this case can be protracted up to 7 years. It is important to note that even during this time when there is the imposition of this limit, citizens of the new EU member states are still legible for travel throughout Europe, together with their non-EU family members. The crux of the matter herein is that while free movement is not restricted, the ability to access jobs is. Thus, this is a way by which scarce economic values such as employment are safeguarded against unfair competition and infiltration. Again, it is important to note that the Directive 2004/38/EC also excludes those citizens of non-EEA or non-EU countries who are not accompanied by members of EU/EEA citizens from accessing some of the privileges that are extended to EU citizens. Some of these privileges include free and fast issuance of visas; the right to work and play for up to 90 days prior to the issuance of visas; permanent residence of 5 years; and easy right to stay in the EU country longer, should the EU citizen be working, learning. In this case, during applications, Directive 2004/38/EC retains individual states’ right of scrutinisation. For instance, individual member states have he power to deny applications that are not in line with national security policies, public policy and public health policies. The same may apply in situations whereby a marriage has been found to be fraudulent. Therefore, it is clear that through this directive, states still have a room to disassociate the freedom of movement from the extension of national resources and economic values. Thus, states still have the power and means by which to extend the right to free movement, without being overburdened (Eurofound, 2008, 2 and EUROPA, 2005a 6). One of the ways in which the EU has tried to govern the free movement of persons as a way of staving off the danger of member states being chocked by high demographic burdens is Article 45 and Article 46 of the TFEU. These articles contain the Treaty which provides EU member states with relatively wide discretionary powers, to limit movement into them (Cholewinski, Perruchoud and MacDonald, 2007, 75). There are also case laws that help reinforce EU laws that seek to modify movement. For instance, there is the Comm v France (French Seamen) which makes specifications on non-discrimination. This case law, as was held by the European Court ruled that there is not to be any form of direct discrimination, save that which has been occasioned or justified by Article 45 (4) EC. There are other case laws such as Ministere Public v Even which specify that there should be limitations on those who access public resources, in accordance with their relationship with the EU citizen. Ministere Public v Even rules that there should be the extension of benefits to the worker’s family, since by extending such benefits, the worker will also be benefiting, indirectly. Again, if there is substantive proof of labour from the new EU Member State being disruptive to the old Member States’ market, then the probation period may be further extended with 2 more years, for the last time. In the event that even the final 2 years do not meet the conditions of the older EU member, then such a matter may be taken to the Commission for determination. This provision which is akin to vetting, underscores greatly, the notion that EU Member States have a significant control over migration from one EU country to another. Because of this, such member states are able to control the socio-economic burdens that unmitigated migration may bring (Communication from the Commission, 2008, 11, Communication from the Commission to the European Parliament & Council, 2009, 12 and Communication from the European Commission, 2010, 10). Another case law that has contributed to the fine-tuning of the EU laws includes the Parliament v Council [2006]. Initially, the EC had taken the Directive 2003/86/EC which maintained that a national of the non-member state living in EU lawfully is entitled to bring his children (and spouse) with him by way of family reunification. Despite this, the directive allowed Member States in specific circumstances to make applications on national legislation that were derogating from the rules that applied in principle. The European Parliament took the notion that several provisions were in opposition to fundamental rights, specifically, the right to nondiscrimination and the right to (respect) family life. Serious matters such as the status of a child who arrived in any EU country independently arose immediately. After thorough scrutiny and analysis of the first EU Charter, the European Court of Justice (ECJ) made the ruling to the effect that the Community legislature never exceeded the limit that the fundamental rights imposed, in permitting EU Member States which wished to, or had adopted specific legislation to adjust specific aspects of the freedom and rights to family reunification. This is to say that the ECJ had dismissed the action that Directive 2003/86/EC was making an attempt at (Communication from the Commission, 2008, 22). Another case law that helped the EU place further specifications on EU free movement laws was Hosse [2006]. This case came against the backdrop of Mr. Hosse a man of German nationality who had been employed in Austria as a teacher in Salzburg Province, and was affiliated to sickness insurance, within the same state. In these circumstances, an application was made for care allowance for Silvia Hosse, under the law of Salzburg. This application was thrown out on the premise that under the laws of Salzburg, the dependent on this care must have his principal residence in Salzburg in order to access this care allowance. The ECJ made a ruling to the effect that grant sickness benefits ought not to be treated conditionally on the residence of the worker’s family members, in the Member States. This grant of sickness must also not be restricted to the place of work, so as to desist from deterring Community workers from exercising their freedom of movement. The ECJ continued to state that to maintain a contrary position would be tantamount to contravening Regulation 140/71 which was made to stave off chances for denying daughter(s) of an EU worker from accessing the benefits she would be entitled to, as a citizen of any EU member state. The ECJ concluded that were Silvia Hosse to fully satiate other conditions specific to the grant, she could claim from the competent Austrian institution payment of a care allowance, to the point that at issue, in so far as she is not entitled to similar benefits under the existent and operational legislation of the state in whose territory Hosse resided. Another important case law that helped EU states regulate free movement is Commission v Netherlands [2007]. In this case, scores of EU citizens had been sentenced to imprisonment in Netherlands. They appealed to the Commission about this measure that the Dutch authorities had applied against them, describing them as undesirable on public policy grounds. As is explained by Council of the European Union (2007, 1328), after examining facts on the complaints, the Commission ruled that general legislation relating to foreign nationals was equally applicable to and commensurate with nationals hailing from other EU Member States. This made it possible for the establishment of automatic and systematic connection between measures ordering expulsion from a territory and criminal conviction. At the same time, it is true to remember the fact that the Treaty Establishing the European Community (TEC) acknowledges the power of EU member states to exercise discretion when it comes to extending the right to free movement. Particularly, since the TEC came into force in 1993 Articles 17-22 and Article 255 have been made to help states with the means to control the high influx they would be exposed to. Articles 17-22 and Article 255 were made as part of Amsterdam Treaty to mainly strengthen the protection of civilians’ rights (Communication from the Commission, 2003, 22 and Communication from the Commission, 2002, 16). According to EUROPA (2007a, 1) and EUROPA (2005b, 2), there are also court rulings that have helped reconcile the extension of free movements and the need to stave off the unnecessary burdens that uncontrolled movement may bring. Lately, the European Court of Justice has been instrumental in helping set precedence for the application of secondary Community Law- a situation which was different before Sala. Particularly, in Baumbast, the European Court of Justice declared that Article 18 which made specifications on the establishment of the TEC grants conditional right of residence to all EU citizens, and is directly effective to so do. However, it is important to note that the European Court of Justice acknowledged the efficacy of secondary Community law which are to be kept in mind when interpreting regulations such as Regulation 38/2004 that have been set. By this, it is meant that it is possible that one has his right of free movement granted in all European Union states, but this not being an automatic guarantee to the right to access an EU country’s economic values and resources such as jobs (EUROPA. 2007b, 2 and European Commission. 2003b, 101). There are also transitional clauses that help states control movement inwards, by other European nationals. The transitional clauses on EU movement, two years within EU membership national laws and policies of the new Member State must be abrogated or amended to match with the EU’s labour market and to provide a window for the provision of work permits. The European Union Commission must be informed, should the new Member State foresee a situation whereby the two years as inadequate for these arrangements. In this respect, countries may continue to apply restrictions for two more years. In the event that these countries informed the Commission on the serious disturbances being experienced in their labour market, all of these restrictions on these new Member States’ populations are to be annulled after 7 years (European Commission. 2002b, 72 and European Commission. 2003a, 73). According to EUROPA (2006a, 1) and EUROPA (2006b, 1), the foregoing means that EU Member States have the power impose the 2+3+2 rule that is provided for in the transitional period. This means that before employees from new EU Member States become employable on equal and non-discriminatory terms by their older EU counterparts, the same will be subservient to the older EU Member States’ right to exert transitional periods for at least two years. This period may further be protracted additional 3 years, in case of any eventuality. References Barnard, C. 2007. The Substantive Law of the EU – the Four Freedoms. Oxford: Oxford University Press. Cholewinski, R. 2005. “The need for effective individual legal protection in immigration matters.” European Journal of Migration and Law, Vol. 7, pp. 237–62. Cholewinski, R., Perruchoud, R. and MacDonald, E. (Eds). 2007. International Migration Law: Developing Paradigms and Key Challenges. The Hague, International Organization for Migration/TMC Asser Press. Communication from the Commission. 2002. Movement of Workers: Achieving the Full Benefits and Potential. Communication from the Commission. Communication from the Commission. 2003. “Second Commission Report to the Council and Parliament on the Implementation of Directives. 90/364 (Right of Residence). Communication from the Commission. Communication from the Commission. 2008. Compliance across All Member States in Implementing Directive 2004/38/EC: A Horizontal Study. Communication from the Commission. Communication from the Commission to the European Parliament & Council. 2009. Guidance for Better Transposition and Application of Directive 2004/38/EC on the Right of the Citizens of the EU. Communication from the Commission. Communication from the European Commission. 2010. Reaffirming the Free Movement of Workers: Rights and Major Developments in Brussels. Communication from the European Commission. Council of the European Union. 2005. Prum Convention. Brussels. Retrieved from: http://www.libertysecurity.org/IMG/pdf/Prum- Council of the European Union. 2007. Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No. 883/2004 on the coordination of social security systems, and determining the content of Annex XI. 15514/07 SOC 479 CODEC 1316-9. Accessed from: http://register.consilium.europa.eu/pdf/en/07/st15/st15514.en07.pdf Eurofound. 2008. “Free movement of workers.” European Industrial Relations Dictionary. Retrieved From: http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/ EUROPA. 2005a. 2006. European Year of Workers’ Mobility, the importance of the mobility of workers to the implementation of the Lisbon strategy. Retrieved from: http://europa.eu/rapid/pressReleasesAction.do?reference= MEMO/05/229&format=HTML&aged=1&language=EN&guiLanguage=en EUROPA. 2005b. Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005, on the recognition of professional qualifications. Retrieved From: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:255:0022:01 EUROPA. 2006a. European Union Citizenship, a wide set of rights and obligations. Retrieved From: http://ec.europa.eu/justice_home/fsj/citizenship/fsj_citizenship_intro_en.htm EUROPA. 2006b. Right to move and reside freely. Retrieved From: http://ec.europa.eu/justice_home/fsj/citizenship/movement/fsj_citizenship_movement_en.htm EUROPA. 2007a. Summaries of Legislation: Free movement of workers: general provisions. Retrieved From: http://europa.eu/scadplus/leg/en/lvb/l23013a.htm EUROPA. 2007b. Treaty of Lisbon: the Treaty at a glance. Retrieved From: http://europa.eu/lisbon_treaty/glance/index_en.htm European Commission. 2002b. Action Plan for skills and mobility. COM (2002) 72. European Commission. 2003a. Communication from the Commission concerning the introduction of a European Health Insurance Card. COM: 73. European Commission. 2003b. Report to the Council and Parliament on the implementation of Directives 90/364, 90/365 and 93/96 COM: 101. Read More