Bringing together researchers, practitioners and policy makers working with migrants, refugees and asylum seekers in Scotland
Throughout the EU implementing free movement law still poses significant challenges to Member States, these challenges are not only practical ones about the application of law by the Courts and the executive, but ones that can also have a legal cultural dimension. At the Universities of Edinburgh and Glasgow we undertook a project to explore the difficulties faced by the system in the UK with a view to explaining what the underlying causes of friction or difficulty are.
Our aim was to research the application of EU free movement law in context in the UK. EU free movement is not hermetically sealed off from broader debates about immigration; it is affected by policy changes and popular perceptions about immigration and is integrated into national institutions alongside immigration decision making. Our project looks in detail at how these two legal systems, EU free movement law and UK immigration law, overlap and interact in practice.
The research combines doctrinal research with findings from detailed interviews with members of key stakeholder groups. In this fast moving area we have attempted to present a dynamic picture of the law and its application in the UK.
In the first phase of our research, we found that there are four main areas where we can see evidence of high levels of misfit or friction between EU law and UK law in the area of free movement:
• residence rights, especially in relation to third country national family members of EU citizens/EEA nationals;
• problems of access to welfare;
• problems of ‘probity’ and the perceived need to distinguish between ‘good’ and ‘bad’ migrants;
• issues raised by the transitional or special regimes for certain groups of citizens (new Member State citizens and Turkish citizens).
The common factor for each of these areas was that they pose challenges to the boundaries between EU free movement law, based on facilitative principles and rights and national immigration control, based on a system of permissions which draws stark distinctions between citizen and alien. The ‘edges’ of EU free movement law and UK immigration law each need careful study to help us understand how they operate in relation to each other.
We found that particular problems arise as regards the extent to which the ‘culture’ of EU free movement is effectively embedded into UK legal/administrative practice. The impact of this is most obvious where claimants are seeking to rely on the ‘edges’ of free movement law, for example, a third country national family member of a migrant EU citizen. Sometimes this means relying on the more controversial or contested parts of the EU’s Citizens’ Rights Directive but sometimes upon EU citizenship rights or upon the EU Charter of Fundamental Rights. Here lack of familiarity with the broader network of EU law plays a role in undermining the capacity of parties to make correct decisions within EU law timescales. We found that these problems raised both training issues for decision-makers and legal cultural issues relating to the character of EU law as distinct from immigration law which requires legal reasoning which is mindful of the difference.
Our research showed that internal system-level frictions represent a very significant challenge to the effective implementation of EU free movement law within the UK. These relate to the way in which rules are applied by decision-makers. For example, it was widely felt that the culture of immigration law, which sees the credibility of the claimant being placed at the heart of the enquiry, had ‘seeped’ or ‘leaked’ into EU free movement law, where it is a factual enquiry alone based on the principles of EU law that is the central task of the decision-maker. However, the evidence to be drawn from recent judgments of the Upper Tribunal (Immigration and Asylum Chamber), which has shown itself ready both to admonish the UK Border Agency and to refer difficult and unresolved questions to the Court of Justice for clarification, suggests that over time some of the legal problems of implementation identified by the research may be decreasing in scope and significance.
In addition to internal system-level friction, problems of friction can also stem from exogenous causes such as the politicisation of immigration and of attitudes towards the EU in the UK and the UK’s powerful ‘border identity’ as an island state opting out from membership of the Schengen zone and the policies which flow from the creation of a borderless Europe. This has led to public opinion across the UK becoming increasingly wary of free movement, so far as it concerns flows into the UK. In fact, immigration issues and EU issues were both identified as problematic areas in terms of press coverage in the 2012 Leveson Inquiry on the Culture, Practices and Ethics of the Press.
Conclusions and recommendations: towards a citizenship champion
Perceptions about EU free movement are changing, in both popular and political discourse, and this is reflected in what appear to be increasingly adversarial relationships around the boundaries of EU free movement rights and the relationships between EU law and UK law. Our research was not limited to observing the internal system-level aspects of friction, and we also considered how the UKBA works, what resources it has and how it trains decision-makers, all as part and parcel of an administrative justice system. Many of our interviewees felt that it does not match up to the best practice in the field. We concluded that these structural difficulties and the adversarial relationships that are emerging need to be addressed urgently because these are having a corrosive effect upon the effective implementation of EU law. Free movement goes to the very core of EU law and does not represent a competence for which the UK can opt out. While training and awareness-raising can help to militate some of the most egregious effects of poor decision-making, we feel that there is a need to discuss in more detail the institutional arrangements for the application of EU law in the UK.
It is well established in the UK that there are very few specific vehicles for the implementation of EU law, and this is true for the administration of free movement rights. In practice and especially without a lawyer, attempting to understand EU free movement rights and the related role of the UK Border Agency or the Home Office can be confusing and mad more challenging by a notoriously difficult to navigate website. What is more, issues raised by the proper implementation of free movement law are not often picked up and tested by bodies such as the Committees of the House of Commons and Lords that have responsibility for scrutiny and accountability matters in relation to both EU affairs and immigration more generally.
To overcome these obstacles, we propose the creation of a new office of EU free movement or citizenship ‘champion’. The role of this ‘Ombudsman-like’ office would be to support the effective development of a common citizenship area in a manner that promotes joined up policy-making and enhances the flow of information between government institutions and those who rely upon the law. It would not supplant the current decision-making processes, but it would help to ensure that the ‘EU flag’ was clearly visible when so-called EEA decisions are taken and when information necessary for EU citizens to make effective use of their free movement rights is made available. As with the investment in the creation of specific institutions which aim to protect human rights, raise awareness of issues around discrimination on grounds of sex, race or other protected characteristics, innovative institutional solutions bringing together expertise with political will can, without great expense, give visibility to certain issues which are often misreported in the media.
Dr Maria Fletcher and Nina Westoby will speak about this research project on Thursday 28th November 2013 at 4.15 pm, Forehall, Main Building, University of Glasgow. The title of the presentation is “The overlap between EU free movement law, immigration law and families: a socio-legal investigation into the friction experienced in the UK”. The presentation will focus on the issues surrounding the rights of EU citizens and their family members when they move to the UK and seek to rely on their EU rights, specifically those that touch on immigration questions such as first entry and residence, stability of residence and family reunion.
To register, please visit Eventbrite.
To learn more about our research, please see the report published on our website.