Free Movement under Assault

We tend to assume that the freedom of movement is confined solely to migration and travel, but there are different aspects to the freedom of movement, and migration or travel is only one. As a whole the freedom of movement includes movement of persons, goods, services and capital.
All facets of the freedom of movement and the interrelationships among them are critical to the development of civilization.As reported on the website, the European Union is defined as a single market, that is an area without internal borders in which the free movement of goods, persons, services and capital is, in principle, guaranteed. To bring this into being, EU legislators have adopted hundreds of directives to remove barriers and to harmonize rules and standards within the EU (for example the mutual recognition of diplomas).
When we talk about free movement of capital, this means complete freedom for capital transactions, without restrictions on capital movements and payments, both between Member States and between Member States and third countries (for example, the possibility for investors and savers to buy foreign assets).
When we talk about free movement of goods, this means the elimination of customs duties and quantitative restrictions, in addition to the promotion of standardization (for example, the possibility for building contractors to buy machine tools from Germany)
When we talk about free movement of services, this means the freedom to establish a company in another EU country and the freedom to provide or receive services in an EU country other than the one where the company or consumer is established (for example, the possibility to use foreign phone companies).
When we talk about free movement of persons, this means the right of EU citizens and their family members to move and reside freely within the EU, as established by the Treaty of Maastricht in 1992 and reinforced by the Directive 2004/38/EC, and representing the cornerstone of Union citizenship (for example, the opportunity for an Italian  journalism student to apprentice to a famous Spanish newspaper).



I would like to analyze the concept of the free movement of persons within the EU because it affects directly or indirectly all the european citizens (and not only), but also because this “taken for granted” right has became an hot topic following the Brexit vote.

Free movement of people gives all citizens of EU countries the right to travel, live and work wherever they wish within the EU. The idea of free movement of people originates from the consideration that allowing people to move (and reside) across the continent, from countries where there were no jobs to countries where there were labour shortages, would not only boost European growth, but would help prevent war by getting people to mix more across borders (indeed the historical scenario is post-WWII).
However the original concept of the free movement of persons has changed in meaning since its beginning in the 1957 Treaty establishing the European Economic Community: the big shift came in the early 1990s, with the Treaty of Maastricht, that changed the nature of the EU from an economically-oriented project towards a more politically-oriented project, introducing the notion of EU citizenship; thus no more rights exclusively for economically active people, but also students, retired, relatives and so on.
This agreement established the Schengen area, characterized by the abolition of internal border controls for all persons, a common visa policy for short stays, the police and judicial cooperation across borders and the adoption of measures to strengthen and harmonize external border controls (for example all EU citizens need only show an identity card or passport to enter the Schengen area).

The Schengen area has recently been faced ongoing challenges, from the unprecedented influx of refugees and migrants into the EU to the numerous terrorist attacks, from the criticisms of nationalists and Eurosceptics to the perceived abuse of free movement rules for the purposes of ‘benefit tourism’ (which means intra-EU migrants accessing social security in a Member State other than their own). These facts underline partly the link between robust external border management and free movement inside those external borders.



As before-mentioned to preserve a single area without internal border checks, the Schengen area, requires a common policy on external border management; the EU therefore sets out to establish common standards with regard to controls at its external borders and to gradually put in place an integrated system for the management of those borders. In summary this system is mainly composed of the Schengen Borders Code (which lays down rules on external border crossings and conditions governing the temporary reintroduction of internal border checks), the Schengen Information System and the Visa Information System (centralised databases for the purposes of migration and border management) and Frontex, also called European border and coast guard agency (an agency with the task to identify, screen and register migrants on entry into the EU, and to organize return operations for those who have no right to stay).



There are currently 26 full Schengen members, whose 22 are EU Member States, plus Norway, Iceland, Switzerland and Liechtenstein (which have associate status). The UK wanted to maintain its own borders, and Dublin preferred to preserve its free movement arrangement with the UK – called the Common Travel Area – rather than join Schengen, thus the UK and Ireland began taking part only in some aspects of the Schengen agreement, such as the Schengen Information System, which enables police forces across Europe to share data on law enforcement.

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Currently in response to the migratory pressure placed on the Schengen area by the influx of refugees and migrants in 2015 (more than a million asylum seekers, many of them Syrian refugees), six states have temporary borders control in place: Austria, Denmark, France, Germany, Norway and Sweden.
Indeed under the Schengen rules, member states may reinstate internal border controls for “public policy or national security” reasons and for a variable period from 10 days to 6 months (even if in “exceptional circumstances” this can be extended for 2 years).
This marks the first time in the history of Schengen that temporary border checks have been instituted on such a scale.
The even more frequency of terrorist attacks in Europe has exacerbated this situation, revealing the difficulty of detecting terrorists entering and travelling through the Schengen area, but in particular the apparent lack of preparation to address such kind of threats.
In particular, to address the phenomenon of so-called ‘foreign fighters’ the European Commission adopted the proposal to introduce mandatory checks on EU citizens entering or exiting the Schengen Area at land, sea or air borders according to an amendment of the Schengen Borders Code (previously applied only to non-EU travellers).



There are many barriers to free movement and menaces that have compromised even more its functions; more and more countries are discussing about quotas, limitations or even ban on immigration for varied reasons. Even if it is only a facet of Brexit referendum, it becomes fundamental how this unprecedented event will be managed because it has implications for the future of the European project itself.

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The British public have voted to leave the European Union, thus it will be necessary to achieve new immigration controls agreements.
According to different researches (Social Research Institute at Ipsos MORI and Opinium Research) immigration was an important factor influencing the vote to leave the EU.
Although EU migration to UK has historically been quite low, between 1975 and 2003 it was only about 8,000 per year, net migration of EU citizens is now 180,000 a year, having more than doubled over the last five years, and it was probably this new wave of migration after 2004 that generated a sense of public unease about impacts on jobs and services among British citizens.
In particular, migration from the EU has increased substantially since 2004 following the expansion to include eight more East European countries, which were considerably poorer than Western Europe (one important driver of East European migrants has been the massive difference in average wages, which is less than a third of the minimum wage in the UK).
Much discussion in the media has focused on whether the UK should opt for a ‘soft’ or ‘hard’ Brexit. A ‘soft’ Brexit means Britain remaining in the Single Market but leaving the EU and this implies that free movement of people will continue; a ‘hard’ Brexit would mean leaving the single market and negotiating a trade deal and relating to immigration control, the UK would no longer be subject to free movement.
Whatever migration policy the UK will adopt, more favorable for free movement (the Norway model or the Swiss bilateral agreement model) or not (the Turkish system, a Continental Partnership or the targeted work permit system), the British Government will have to take into account the 1.2 million UK citizens currently living in other parts of the EU.

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According to Floris de Witte, a Belgian political scientist at the London School of Economics, free movement is often understood in terms of its economic costs and benefits to the Member States of the EU, but it becomes something very different when we consider its effect on individuals, instead on states. From this perspective, freedom of movement is primarily an emancipatory force, that allows individuals to live their lives without the limits that their place of birth imposes on them; freedom of movement allows Europe’s citizens to move for love, work, family, language, social or cultural reasons.

Despite De Witte’s inspiring words, it is important to remember that the free movement rights are subject to ‘limitations justified on grounds of public policy, public security or public health’ (as established in the Treaty of Maastricht); moreover in order to challenge benefit tourism it has been established that an EU national does not have the right to reside in a host Member State if they become an “unreasonable burden” upon the social welfare (which means not having a minimum contribution level).
The same treaty sets out the ‘categories’ of people with an EU-law based right to reside in a host Member State for longer than three months (usually maximum tourists’ length of staying): essentially, workers/the self-employed and their family members, students, and the self sufficient. As a whole in the EU exercising the free movement rights typically means being a worker.

Crucial challenges are at the threshold of Europe (and not only), there are not moves absolutely right or easy, but it is fundamental to consider the freedom of movement in its entirety, in the interrelationships among movement of persons, goods, services and capital, remembering that it is quite difficult setting limitations in one free movement right without affecting the others.

Alice Querzoli



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