The past, present and future of free movement in the EU

Dawid Krawczyk: The European Union is going through a difficult time. Although some federal „United States of Europe” were not pure political fiction in the early 2000s, no one seems to be thinking about them seriously today. The French and the Dutch have rejected the European constitution, thus burying any dreams of full integration in the Old Continent. A dozen or so years later, the Brits have eventually showed the EU the middle finger and are getting ready to exit the community. Yet, apart from the Nobel Peace Prize awarded to the Union in 2012, there is something that Euro-enthusiasts continue to mention as a great achievement: the European freedom of movement. Was the idea of a Europe with no border control present from the conception of the EU?

Anthony Valcke: The contemporary framework for the European Union was created in the 1950s, after World War Two. The creators of the European Economic Community believed that if European countries were connected by strong economic ties, they would not get into military conflict with one another. In an attempt to strengthen those ties, the founders established the principle of the free movement of people, goods, services and livestock.

That’s history. What about modern practice? Could I go wherever I wanted and stay however long I wanted to?

Every EU citizen has the right to travel inside the European Union and reside in the territory of any member country for a period of three months without any special permits or documents. All the citizen needs is a photo ID: a passport or an identity card.

What if I wanted to stay longer than three months?

Practically speaking, you would have to work or study. If you weren’t working, you would at least have to prove that you possess enough means to support yourself instead of burdening the country’s social security system.

It seems that only employees and people of leisure are allowed to move freely.

Not so fast. Don’t forget about students who are entitled to residing in the territory of the member state where they are receiving their education for more than three months. If you are not working and you do not have the means to support yourself, but you are looking for work – this also counts. You can stay longer, because you are allowed some time to find a job.

Can I look forever?

No. Here, we are talking about a minimum of six months. However, if you prove that you are looking for work and have realistic chances of finding it, a court should extend your right to reside in the member country.

Let’s consider a different scenario. I am a Polish citizen looking for a better life on the British Isles. Once again, I do not succeed. I stay there, penniless, for more than half a year. What is going to happen? If I do not have a job, I am not looking for it, and the three months have passed, will I be deported?

That’s a great question. Most countries do not forcibly remove EU member state citizens from their territories. It is not completely clear whether this would be legal at all. In order to deport someone, the person would have to be detained. According to EU law, detention is lawful only if the person has committed a crime. I believe that it is impossible to legally deport someone unless they are a criminal. Certainly, the authorities can send you a letter informing you that you have lost your right to residence and you should leave their country’s territory immediately. Still, they cannot deport you.

I can’t believe that all these member states are so conscientious. After all, the UK has deported some homeless people to certain Eastern European countries.

Indeed, reliable media sources have reported this. The officials claimed the returns were voluntary.

The freedom of movement can become restricted even before we reach the destination. Some time ago, the Polish media had a field day reporting the plight of a former priest, Jacek Międlar, who was denied entrance to the United Kingdom.

Member countries are entitled to restricting the freedom of movement for people who pose a justified threat to public order, security or health. As far as I remember, Międlar was stopped on the grounds that he incited to hatred. I also remember a case of a Norwegian member of the motorcycle gang Hells Angels who was forbidden from entering Iceland. Authorities in Reykjavík argued that he would pose a security threat to their country.

I’m sure thousands of such individual stories could be found in the history of the EU. Still, can the right to free movement be restricted for entire groups?

Here, the answer is clear. This is illegal. If any country barred a selected ethnic minority from entering its territory, it would be an example of discrimination.

But this has happened. In 2011, some Roma people were forcibly removed from France and sent to Romania and Bulgaria.

At that time, France defended itself by insisting that it had examined each case separately. In every specific case, the officials were supposed to demonstrate the existence of a justified threat to public order, security or health. The latter can only be claimed within the first three months of a given person’s arrival in a member state. Again, the media reported what this looked like. The police would arrive at a Roma camp, ask the residents for their papers, and put their personal data into previously filled-in notices to leave the country. The reason? Aggressive panhandling, persistent panhandling, and other such bogus charges.

If the charges were true, would this be legal in France?

Yes. But the doubts proved to be fully legitimate. Once lawyers had appealed in some cases, the French courts annulled individual decisions on the deportations. NGOs in France successfully called on the European Commission to investigate whether discrimination was at play in this affair. I don’t want to get into details, but the Commission found that the French authorities had committed violations in particular cases, but the whole procedure had not been discriminatory.

While preparing for our interview, I looked through the EU treatises that regulate the right to free movement. Its foundations are laid in the Treaty on the Functioning of the European Union. This is supplemented by directives which determine how to adjust domestic law to European law. It’s not a page-turner, but all the rules seem pretty clear.

In theory, everything should work like a well-oiled machine. My experience with law clinics shows that, in reality, various things can happen to the right of free movement.

You work with the EU Rights Clinic. How many cases do you get each year?

The EU Rights Clinic deals with particularly complicated cases, which amount to around one hundred a year. On the other hand, Your Europe Advice, a platform run by the European Commission for over 20 years, has serviced 210,000 cases. There are more ambiguities than we may expect.

What are the complicated cases that the EU Rights Clinic examines?

For example, we took on a case of a Japanese citizen who married a European. She was refused the right of residency and detained. She was set free only when our lawyers had accidentally taken interest in the case.

She was a European citizen’s spouse. Where did the problem come from and why was she detained at all?

Her husband lost the right to residency in the territory of the country where they were living. He was still an EU citizen, so he couldn’t be deported. She, in turn, was treated as an illegal immigrant. It is often the partners of EU citizens who get hit the hardest in life crises. Suddenly, they realize that they have much fewer rights than they previously thought.

I assume that you also work with people who lose benefits after they have moved to another country.

Yes; this is fairly common. There is a case we have been working since 2013. A Brit had lost his capacity to work due to a disability, and gained the right to benefits. He met a woman. He married her and moved to her home country, Norway. Then, the UK decided that it would no longer provide him with his disability pension. First, we tried the case in domestic courts, and won. The British government appealed. Meanwhile, a similar case emerged in Luxembourg. We are waiting for its solution in order to continue fighting our legal battle.

Many EU citizens from Eastern European countries such as Poland, Bulgaria or Romania worry about the future of free movement after Brexit. Likewise, Brits living outside the isles are not sure of their fates either. Are these concerns reasonable?

Let’s not forget that even before the referendum was announced, David Cameron had negotiated the possibility of suspending the free movement of people in the UK on his very own terms. Nevertheless, the voting took place, and the Brits opted out of the community. Cameron’s arrangements lost their validity. What if the remaining countries wanted to deviate from this fundamental principle of EU’s functioning? If the UK can do it, why not Germany, Italy, Holland, and so forth?

From what you are saying, it seems that Brexit is conducive to preserving internal free movement in the EU.

Not necessarily. The United Kingdom’s exit from the EU is such a great change that according to some lawyers – including me – renegotiating treatises will be indispensable. If this takes place, we can’t be sure about the fate of free movement.

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Anthony Valcke – founder of the EU Rights Clinic, the first legal counseling center specializing in European Union legislation. He received his law doctorate from the Università degli Studi di Palermo. He also studied at the King’s College in London, the Sorbonne in Paryżu and the Free University of Brussels.

Translated from the Polish by Aleksandra Paszkowska

This article has been produced within the frame of the ACT4FreeMovement program, funded by the European Program for Integration and Migration (EPIM), a collaborative initiative of the Network of European Foundations, and run by European Alternatives, Krytyka Polityczna, the European Citizen Actions Service (ECAS), the Good Lobby and the EU Rights Clinic.