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Can the UK suspend free movement?

No Borders, by Carrie on 1000 Blackbirds
No Borders, by Carrie on 1000 Blackbirds

In an interview with The Telegraph this weekend Home Secretary Theresa May appeared, at least to those wearing magic-rabidly-Eurosceptic-wishful-thinking-specs, to suggest that the UK Government was contemplating suspending free movement rights for southern Europeans if the Euro collapses:

And what if a eurozone collapse sent thousands of economic migrants heading north from Greece or Spain? Could she legally restrict their right to come to Britain?

This is another eyes-narrow moment. “As in every part of government, it is right that we do some contingency planning on this,” she says. “That is work that is ongoing.” But could you restrict entry in an economic emergency? “We will be doing contingency planning.”

You can see yourself from the words she uses that she herself never suggests suspension of free movement rights, she merely fails to refute it. This circumspection on May’s part did not, however, prevent The Telegraph then putting words into her mouth in the headline for a separate article entitled Theresa May: we’ll stop migrants if euro collapses, followed then by the BBC and, amongst others, Channel 4 News. That last link is to an interview I did with C4N in which I express polite astonishment at the whole idea whilst wearing my nicest red tie:

So, if we read what May actually said, it looks like a storm in a teacup and no-one really seems to be suggesting that one of the four fundamental freedoms of the European Union, that of people, be suspended.

But… what if the UK Government were contemplating suspending free movement rights for at least some European citizens? Well, the short and legal answer is that they should stop because it simply can’t be done, at least without leaving the EU entirely.

The common market is the whole point of the EU and free movement of people is one of the four essential pillars holding it aloft. It would be surprising if the drafters of the EU Treaties had inserted somewhere a mechanism that would permit suspension of such a basic, founding principle of the EU, one that is embedded into the fundamental Treaty on the Functioning of the European Union at Article 45. On top of that, the right to freedom of movement for EU citizens (every citizen of every Member State is also an EU citizen) is enshrined separately at Articles 20 and 21 of the Treaty. And that is before we get started on the Citizens’ Directive. Or the fact that discrimination on the basis of nationality is prohibited by Article 18, so any restrictions on Greeks would need to be applied universally to all EU citizens.

The idea that freedom of movement could be suspended also ignores the reciprocal nature of the common market. I once heard that Brits are the third highest users of free movement rights in the EU. There are many, many Britons living in other EU countries, including Greece, or who own property there. If the UK were unilaterally to take action against Greece and Greeks, surely it must be expected that retaliation would follow?

In short, a new Treaty would be needed.

To support the idea that restrictions might legitimately be considered, The Telegraph points out that free movement for some new Member States was restricted, but this is a completely different kettle of fish. It is possible to delay implementation of full free movement rights for workers of new Member States for up to seven years. Greece joined the EU in 1981, so that ship has pretty much sailed, I think. We already have restrictions on Bulgarians and Romanians, and these cannot legally be tightened up any more than they are already.

The Telegraph also points to discussions within the Schengen area last year about reintroduction of border controls in response to the Arab Spring. It is indeed possible to suspend the Schengen agreement and reintroduce border checks in an emergency. The Schengen area consists of some states within the EU that have agreed to remove border controls between one another. For example, there are no border controls between Italy and France and so on. As the UK has never been part of Schengen, this is utterly irrelevant to the UK and I imagine that even if the UK for some reason would prefer that other Member States themselves reintroduced border checks, those Member States would tell the UK that it is none of our business.

Article 347 TFEU might at first blush appear to offer a means of looking again at the common market, but it rather looks like the apocalypse would need to happen first:

Member States shall consult each other with a view to taking together the steps needed to prevent the functioning of the internal market being affected by measures which a Member State may be called upon to take in the event of serious internal disturbances affecting the maintenance of law and order, in the event of war, serious international tension constituting a threat of war, or in order to carry out obligations it has accepted for the purpose of maintaining peace and international security.

Maybe the apocalypse is in fact on its way. Even then, though, it is hard to see how destroying the internal market could possibly be seen as saving it.

Free Movement
Free Movement The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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