July 04 2022

EU migration: Theresa May’s Groundhog Day

EU migration: Theresa May’s Groundhog Day

Government risks another Windrush scandal over EU settlement scheme

Euro flag (From Flickr, under Creative Comms)

The 1993 comedy movie Groundhog Day takes place in Pennsylvania. The main character played by Bill Murray is forced to relive the day over and over again until he can learn to give up his selfishness and become a better person. In popular culture, the phrase “Groundhog Day” has come to represent going through a phenomenon over and over until one spiritually transcends it. Pic from Flickr, under Creative Comms licence (fdecomite)

I am reminded of the film every time the Government poses the question: What on earth can be done to prevent or restrict the right of Bulgarians and Romanians from working in the UK after 1 January 2014?

The home secretary, Theresa May, now says she wants a clampdown on the way EU citizens are permitted to come to the UK, but has studiously avoided confirming leaks coming from her department suggesting she wants a cap of 75,000 EU workers.

At present the government cannot impose a limit on the number of EU citizens coming to the country because of the free movement of workers, which is a cornerstone of the EU.

May said: “There is a growing concern about the abuse of free movement in the EU.” She added that this was not something that was just being raised in the UK, though her words were rather obviously timed amid continuing fears of a large-scale Tory rebellion over the lifting of restrictions on Romanians and Bulgarians. David Davis, the former shadow home secretary, has apparently joined the revolt, calling for the government to tell the EU that the deadline for allowing Romanians and Bulgarians should be put back a further two years. A vote in the Commons was due in the New Year, but has now apparently been postponed by government whips.

Although I have written about this before, and whilst I don’t want to end up in my own Groundhog Day, or risk sounding like a broken record, the continued sound-bites on this issue make it something worth re-visiting.

In 1993 the European Communities concluded agreements with Bulgaria and Romania which entered into force in February 1995. Bulgaria and Romania joined the EU in 2007. The accession agreement with the two countries was ratified in 2005 by all EU Member States, including the UK, and accession took place on 1 January 2007. From that date on citizens of Bulgaria and Romania had all the rights of the EU acquis (the agreed and accumulated legislation, legal acts, and court decisions which constitute the body of EU law) in relation to citizenship and freedom of movement, with the exception of the right to free access to the labour market.

This was because the agreement allowed Member States to impose national measures which could limit Bulgaria and Romania nationals from working in their state for up to a maximum of five years. Exceptionally Member States could then seek a further, and final, extension of 2 years if their labour markets were seriously disturbed or at threat of serious disturbance by the ending of the transitional arrangements. And this is precisely what the UK did in 2011, informing the European Commission that they were seeking to extend the transitional arrangements till the end of 2013, arguing that the state and risk to the UK labour market at that time warranted it.

It is worth repeating that none of these measures affected the EC based rights which Bulgarian and Romanian citizens had enjoyed since 1995, namely to come to the UK and to carry out activities as self-employed persons or to establish themselves in business (see e.g. Case 235/99 Kondova). Nor did they affect the enjoyment of all the other rights of citizenship including freedom of movement which they had enjoyed in full since Bulgaria and Romania joined the Union.

Can the Government really prevent or restrict Bulgarians and Romanians from working in the UK after 1 January 2014?
The legal answer is pretty straight forward. Under EU Law, the current restrictions cannot continue beyond the end of 2013 and will therefore be automatically end on 1st January 2014 (Ireland lifted these restrictions in July 2012)

To do otherwise, the UK would have to convince the other Member States (including Bulgaria and Romania) to amend the accession agreement and remove the right of Bulgarian and Romanian nationals to work in other Member States. This is highly unlikely, not least because only Malta and the UK are actually applying the transitional restrictions fully. All the other Member States have either completely abandoned them and come to terms with free movement for Bulgarian and Romanian nationals (20 Member States) or partially done so (another 5 Member States). So in reality only two Member States, Malta and the UK, might actually be in favour of such an amendment to the accession agreement.

The UK has no other legal option, given it ratified the accession agreement back in 2005, unless of course Theresa May can defy the current limitations around the law of physics, and find a way to travel back in time so as to change history.

Can the UK take any other measures after 1st January 2014?
The answer is again a resounding no.

Bulgarian and Romanian nationals will have full rights as workers. They will be entitled to full equality with British workers in all aspects of assistance to find work and once in a job to equal working conditions, wages, access to social benefits etc.

EU law does not permit discrimination among EU workers on the basis of their EU nationality. This prohibition of discrimination on grounds of nationality within the scope of application of the EU Treaty is contained within article 18 TFEU (ex art. 12 EC) (‘Within the scope of application of the treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited’). It benefits all nationals of the EU Member States (also as regards free movement of workers (art. 45 TFEU (ex art. 39 EC)) and freedom of establishment (art. 49 TFEU (ex art. 43 EC))

Any efforts to exclude Bulgarian and Romanian workers from things such as social benefits or the NHS, and which are available to British workers, would be unlawful and constitute an obstacle to free movement guaranteed by Article 21 of the Treaty.

If the UK government places conditions or abolishes certain social benefits or free access to the NHS for British workers, then Bulgarian and Romanian workers will no longer be entitled to those benefits either. But action cannot be taken against only some EU citizens and not others. (Francovich and Bonifaci joined cases c6/90 and 9/90)

What are the possible consequences for the UK if it acts in defiance of EU law and continues to restrict Bulgarians and Romanians from working in the UK after 1 January 2014?
As a matter of EU law, Bulgarians and Romanians will be entitled to work. Therefore if employers refuse them employment because they are following any (unlawful) UK national restrictions that remain in force in national law, they will be susceptible to a Francovich damages action for the loss caused to any Bulgarian or Romanian who is refused employment. It would also prove to be further problematic for employers in the sense that, if they hired the Bulgarian or Romanian worker, they might risk being fined by the UK authorities. The employer is caught either way. Not great for the UK economy or small business growth is it Mr Osborne?

The Bulgarian or Romanian authorities would also be entitled ( Art 259 TFEU) to commence court proceedings in the Court of Justice against the UK for its failure to comply with the accession agreement though this is very unlikely to occur. The affected states are much more likely to put pressure on the Commission to act. The European Commission could start infringement proceedings, as they have done over the right to reside test. Since the Lisbon treaty came into force such proceedings, brought under Art 258, can also attract financial sanctions (Art 260(3) TFEU

What next?
As the recent furor over Isa Muazu has shown, Theresa May remains deeply entrenched in her own personal Groundhog Day. However, whilst it may be too much of a stretch to believe that recent events will lead her to re-examine her life and priorities, she should at least take this opportunity to stop pretending that she can change legal reality.