To be free or not to be – that is the question for the UK government as it continues to struggle to implement the free movement of people provision, some 50 years after the establishment of the EU.
The European Commission has lambasted member states for what it has called a ‘rather disappointing’ implementation of the free movement of people and worker provisions, first established under the 1957 Treaty of Rome and further defined and codified through a litany of subsequent EU regulations and directives, including 2004/38/EC. In a recent report, the commission found that not one member state had effectively and correctly complied with all the provisions contained in the most recent directive, 2004/38/EC, on the right of European citizens and their family members to travel, reside and work freely among member states.
Predictably, the UK was cited on more than one occasion as having failed in its compliance with the directive.
BackgroundIn April 2004, the commission introduced the directive requiring member states to transpose these free movement rights into domestic legislation. Certain restrictions on free movement remain for A8 and A2 nationals, countries which became EU member states in 2004 (the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia) and in 2007 (Bulgaria and Romania).
The free movement of people and worker provisions of the EU can be controversial and have historically been met with resistance by member states. The commission is required every three years to inform on the implementation of the treaty and its directives. In December 2008, the commission reported to the European Parliament and the council on the application of the directive, and, while the report concludes that member states have adopted national laws to protect the rights of European Economic Area citizens and their families to travel, reside and work freely among member states, the overall implementation of the directive has been unsatisfactory. So what issues have arisen in the UK?
Family membersThe commission found that member states had interpreted the definition of ‘family members’ under article 3 (to include the ascending line in addition to descendants) correctly but some member states, including the UK, had failed to transpose the rights of family members into domestic legislation with adequate clarity.
In September 2003, following case C-109/01, Secretary of State for the Home Department v Hacene Akrich, the UK made the right of residence of third-country family members conditional on their prior lawful residence in another member state. On 25 July 2008, in case C-127/08, Blaise Baheten Metock and Others v Minister for Justice, Equality and Law Reform, the European Court of Justice ruled that this requirement of lawful prior residence is contrary to the directive.
Nothing in the directive or the ruling in any way curtailed member states from enacting legislation to refuse applications where a marriage was found to be one of convenience. However, Metock has caused significant controversy in some member states, including the UK. It has been suggested that it has created a loophole in immigration law that could make it easier for third-country nationals to ‘regularise’ their immigration status by means of marriage to an EU citizen.
It took the UK several months to publish guidance on the incorporation of the Metock ruling. In the past, the UK failed to interpret correctly article 3 of the directive, though recently it seems that this is in the process of being remedied. However, at the time of writing the UK regulations requiring prior lawful residence in another member state of a third-country national to apply for entry to the UK have yet to be amended.
Several decisions made by the United Kingdom Borders Agency after the Metock judgment, refusing applications on the basis that the third-country nationals lacked prior lawful residence, are now being successfully challenged.
Right of entryArticle 5 of the treaty permits member states to require that family members of non-EEA nationals obtain entry visas before travelling to the host state. However, in instances where the family member does not obtain a visa, the host state must allow ‘every reasonable opportunity… to prove by other means that they are covered by the right of free movement and residence’. The commission’s report concluded that article 5(4), providing for the right of entry for EU citizens and their family members arriving at the border without the necessary travel documents (or if required, entry visas), is often transposed and applied incorrectly.
Currently, the UKBA states on its website that all non-EEA family members must obtain an EEA family permit before travelling to the UK. Most UK immigration officers are now aware that, under the treaty, a non-EEA national who does not hold an EEA family permit can make an entry clearance application on arrival and should be allowed entry to the UK if satisfactory evidence of their right under the directive is provided. However, there continue to be instances of officers refusing to allow entry to family members without EEA family permits, contrary to the article. Furthermore, national and international airline carriers are often misguided on the legislation, and there have been several instances of airlines refusing to allow non-EEA family members to board planes in the country of origin without valid EEA family permits.
Additionally, the commission found that the UK does not provide for the visa exemption for family members holding a residence card issued by another member state, and has therefore failed to transpose this provision under article 5(2). Residence cards issued by other EEA countries are not recognised as a substitute for the requirement for a UK visa, despite this being a requirement of the directive.
The UK has therefore not fully implemented article 5 of the directive.
Article 16 of the directive provides that EEA nationals who have resided legally for a continuous period of five years in the host member state shall have the right of permanent residence there. The commission found that the UK failed to implement the directive properly as it incorrectly takes no account of periods of residence acquired by EU citizens before their countries acceded to the EU. Therefore, in the UK, A8 and A2 nationals and their families can be disadvantaged with respect to the acquisition of permanent residence in the UK in comparison with EU national counterparts from older member states.
Under article 27 of the directive, member states may restrict free movement on the grounds of public policy, security or health. Articles 30 and 31 provide for written notification of any decision taken under article 27, with access to judicial and administrative redress where appropriate. The commission has found that most member states have incorrectly transposed the directive into domestic legislation. The commission was specifically critical of the transposition of articles 30 and 31 in the UK. In particular, the report noted that: ‘In the UK, the right to appeal is granted only to those EU citizens and their family members who produce evidence that they have the right of free movement. Those with regard to whom the UK authorities consider that no evidence was produced are not informed about the right of redress. The directive requires all decisions to be open to redress’.
The UK has not fully implemented articles 30 and 31.
Unfortunately the commission’s report did not address the lengthy processing times for EEA residence card applications in the UK.
Under article 10(1), non-EEA national family members must be provided with residence cards by the host member state, as evidence of their right of residence under the directive, within six months from the submission date of application. At the time of writing, the processing times for these applications, in contravention of the directive, is over 12 months.
While the EEA family permit, which facilitates a non-EEA national family member's initial entry to the UK, is valid for only six months until the residence card is issued (unless the non-EEA national travels overseas to obtain a further EEA family permit), returning to the UK from abroad can be as problematic as attempts to seek medical care, register with a GP or, in the case of a child, register to attend school.
The commission is currently considering taking action against member states which fail to issue residence cards to non-EEA national family members within the time provided in the directive.
ConclusionThe UK has successfully applied most provisions of the directive on the right of European citizens and their family members to travel, reside and work freely among the member states. But significant issues are still present in the implementation of the specific provisions outlined above, which need to be addressed and amendments made to UK regulation. In light of the government’s most recent clampdowns on non-EU national workers, the wildcat strikes and the roll-out of an even more fervent ‘British jobs for British workers’ campaign, it is unclear whether the UK will take the necessary steps to ensure more complete compliance.
Laura Devine, Laura Devine Solicitors, London
Meghan Vozila, a trainee solicitor at Laura Devine Solicitors, contributed to this article