Catherine Barnard and Sarah Fraser Butlin*
*The authors are both at the University of Cambridge and funded by
the ESRC’s UK in a Changing Europe programme. An expanded version of some of
these arguments can be found in Barnard and Fraser Butlin, ‘Free movement v.
Fair Movement: Brexit and Managed Migration (2018) 55 Common Market Law Review
in this series we began to outline our notion of ‘fair movement’. In the first
blog we argued for a clear linkage between the ability to migrate into the UK
and undertaking an economic activity. In
the second blog we argued that current restrictions on the principle of equal
treatment should be utilised, particularly residence requirements, before
allowing access to social security benefits.
This final blog focuses on the third element of the proposed scheme: the
emergency brake provisions. We argue that combining our approach to equal
treatment with an emergency brake would achieve a managed but flexible approach
to migration. This approach reflects
both the origins of free movement and other existing agreements, including with
EEA states. Such an approach based on fair movement may, therefore, be
acceptable to the EU in a future trade agreement while at the same time go some
way to meeting the concerns of UK voters. As with the previous two blogs, we
locate our arguments in the context of the original discussions about the shape
of free movement rules to show continuity between what we propose and what the
EU has considered in the past.)
Origins of Free Movement
Although the question of an emergency brake was a difficult issue
during the discussions establishing the Common Market, the need to restrict
free movement in certain circumstances was a consistent theme. Thus, a note by the Inter-Governmental
Committee (IGC) in November 1955 recognised the need for certain safeguarding
clauses in case of an influx of a workforce that would cause a particular risk
to certain industries in a particular country.
This reflected the concerns of several delegations: the French
delegation was worried that migration should be limited according to the
capacity of the member state to absorb migrant workers; Luxembourg was
concerned about its ability to implement free movement of workers, given its
social and demographic structure; and Belgium had concerns about the burden
created by possible large scale migration.
The Spaak report of 21 April 1956, which provided the foundations
for the negotiations establishing the Common Market, supported earlier
proposals for the gradual introduction of free movement by way of a 1% increase
in migrant worker numbers each year. However, the report also noted the
reluctance of workers to move, even within one country and this indicated that
some sort of controlled migration might not in fact be necessary. Ultimately, it seems that this latter view
won the day: the final version of Article 48 EEC on free movement of workers
(now Article 45 TFEU) included no reference to quotas, nor to a gradual
introduction of free movement nor an emergency brake.
Nevertheless, the history of the provision shows that the possible
need for an emergency brake of some sort was a concern for many of the
delegations, albeit that so little migration occurred between 1957-2004 that
any further discussion of an emergency brake on migration proved unnecessary.
The world has since changed. While continued free movement would be what the EU
would like, political realities indicate change is needed. So we ask: Is there
a way of facilitating free movement while meeting the political need to take
back some control of migration? We argue there is and existing agreements
provide the way.
people have suggested that an emergency brake of some sort can be read into the
express derogations of the Treaty. However, we focus on four other agreements
which, we argue provide a more secure template for an emergency brake
Firstly, Article 112 of the European Economic Area (EEA) Treaty
contains a broad safeguard clause:
If serious economic, societal or
environmental difficulties of a sectoral or regional nature liable to persist
are arising, a Contracting Party may unilaterally take appropriate measures
under the conditions and procedures laid down in Article 113.
Article 112(2) adds that ‘Such safeguard measures shall be
restricted with regard to their scope and duration to what is strictly
necessary in order to remedy the situation. Priority shall be given to such
measures as will least disturb the functioning of this Agreement.’ Article 113
EEA prescribes the procedure for triggering the procedure, involving the
notification of Contracting Parties and consultation with the EEA Joint
Committee. When exceptional
circumstances requiring immediate action exclude prior examination, protective
measures may be applied. Safeguard measures
that are taken must be reviewed every three months with a view to their abolition
or to the limitation of their scope of application. A safeguard clause of this
kind has been borrowed for the purposes of the Northern Ireland/Ireland
Protocol in the draft Withdrawal Agreement.
Secondly, the EEA agreement did contain one specific limitation on
free movement of people for the tiny state of Liechtenstein. Before
Liechtenstein joined the EEA, the EEA Council recognised that it was vulnerable
to excessive migration due to its very small inhabitable area. Upon joining the EEA, temporary measures were
put in place allowing Liechtenstein to impose ‘quantitative limitations’ on
immigration until 1 January 1998.
Towards the end of the transitional period, no permanent solution had
been found and Liechtenstein unilaterally invoked Article 112 EEA. On 17 December 1999 it was decided that the ‘specific
geographical situation’ of Liechtenstein still justified the maintenance of
certain conditions on the right to taking up residence. Text was added to the
EEA Agreement, providing that EEA citizens may take up residence in
Liechtenstein but were required to have a residence permit if they were
remaining for more than 3 months of the year or to take up employment or other
permanent economic activity. A permit was not required for those providing
cross-border services. A quota for residence permits was applied although no
permit is required to be able to work in Liechtenstein, only to reside there.
These arrangements are reviewed every five years.
Thirdly, Switzerland has introduced a new provision giving priority
for local hires following the Swiss Referendum in February 2014. The Swiss
electorate had voted to amend the Swiss Constitution to limit immigration
through quotas and restrict the rights of foreign nationals to permanent
residence, family reunification and access to social benefits. This was
incompatible with the bilateral EU Agreement on Free Movement of Persons within
the EU and the EU reacted by suspending Switzerland’s participation in the EU
research and student programmes, Horizon 2020 and Erasmus+.
Lengthy negotiations followed and eventually on 16 December 2016 a
new law was adopted, coming into force in the summer of 2018, giving priority
to Swiss-based job seekers, that is, both Swiss and foreign nationals
registered with Swiss job agencies, in sectors or regions where the
unemployment rates are higher than average. ‘Higher than average’ unemployment
has been defined as the 12 month average unemployment rate plus 5 percentage
points. During the transitional period,
this will rise to being the 12 month average unemployment rate plus 8%. In those sectors or regions, an employer must
advertise any role with the central employment agency for five working days.
Only after that period, may the job be advertised through all the usual channels
and the employer may recruit from abroad.
An employer will be fined for non-compliance.
Fourthly, the text of the (now defunct) New Settlement Agreement,
negotiated by David Cameron with the EU in February 2016, contained not only
provision for an emergency brake on benefits but also a potentially significant
provision of a putative emergency brake on the volume of migration:
Whereas the free movement of workers under
Article 45 TFEU entails the abolition of any discrimination based on
nationality as regards employment, remuneration and other conditions of work
and employment, this right may be subject to limitations on grounds of public
policy, public security or public health. In addition, if overriding reasons of
public interest make it necessary, free movement of workers may be restricted
by measures proportionate to the legitimate aim pursued. Encouraging
recruitment, reducing unemployment, protecting vulnerable workers and averting
the risk of seriously undermining the sustainability of social security systems
are reasons of public interest recognised in the jurisprudence of the Court of
Justice of the European Union for this purpose, based on a case by case
analysis. (emphasis added)
So where is the emergency brake? It is buried in the language.
According to the orthodoxy, direct discrimination can only be saved by express
derogations, indirect discrimination can be saved by a broader range of
objective justifications. The striking feature of the Brussels text is that it
does not restrict objective justifications (or ‘overriding reasons of public
interest’ as they are referred to) to indirectly discriminatory measures. This
might suggest that even directly discriminatory measures could be justified on
the grounds of ‘encouraging recruitment’ and ‘reducing unemployment’. This
might suggest that there was scope to read into the New Settlement Agreement a
means of developing the EU’s own emergency brake on the volume of migration.
We therefore argue that there are models for what might become the UK’s
emergency brake. How might they be applied in the context of a model based on
IV The Future?
We would call for the introduction of an emergency brake, not at
national level but at regional level, perhaps at the level of devolved administrations
or other regional groupings, to take account of the substantial variation in
the needs of the regions. At present Scotland is calling for more migration,
parts of England less so. Thus, an emergency brake mechanism would need to
apply on a regional basis. Relying on both economic data (such as labour market
criteria e.g. relative levels of unemployment, demands for unemployment
benefits, wage levels), demand for public services (e.g. population growth,
population churn, waiting lists) and political experience (e.g. what
constituents are saying through the ballot box and in person at surgeries),
these regions could make a request to national government to impose
restrictions on migration for a time limited period. These restrictions might
be sectoral, based on skill levels, or more general and for a defined period of
time. The operation of the registration
system outlined in blog 1 would be the vehicle for controlling those who could
work in a particular area.
Who might pull the emergency brake?
There is clearly a need for both an objective evidence base for its
application such as economic data. However, given the highly politicised nature
of the issue, the decision of when to pull the emergency brake could not simply
be left to a body separate to the Government.
Nevertheless, we would suggest that there would also need to be certain
safeguard provisions in place requiring minimum objective indicators in the
economic data to be met before any subjective political decision might be made.
The EU is unlikely to concede on any such mechanism without a dual control by
the EU. So a mechanism like the one in Article 113 EEA would also need to be
Would such mechanisms satisfy Leave voters or would they regard them
as merely window dressing? Much depends on the seriousness with which the
mechanism is regarded, the rigorousness of the objective criteria and the
willingness of local politicians to engage.
For purists, what we are proposing does serious damage to the
principles of free movement of persons. We
know that. However, we recognise that, following Brexit, the UK will no longer be
in the EU’s paradigm of free movement. While universities and other big
employers have benefitted from free movement, we recognize that politically free
movement is unlikely to be the outcome of the negotiations (except possibly for
a short transitional period). The economic
benefits of migration are not in doubt but we recognize that the political will
for continued free movement is simply not there.
admittedly crude, options for a way forward.
What we propose is a scheme which demonstrates to the British public
that the government is taking back control of migration while at the same time
offering flexibility for those employers, including farmers
and those in the hospitality
sector, who argue they need access to EEA workers but without facing the
bureaucracy and costs associated with a full blooded visa regime.
Some might argue that our proposed scheme, discussed across the
three blogs, is not so different from the current free movement rules as
applied in the UK. We disagree. First, our proposal for fair movement introduces
a registration scheme and requires those registering generally to be engaged in
economic activity. Second, we have argued that economic activity must be
accompanied by a meaningful salary threshold or have a relatively high skill
level. Third, our scheme would allow restrictions on access to social security
benefits. Fourth, we argue that there should be an emergency brake which is not
currently available under EU law.
We recognize that a scheme which is neither free movement nor highly
restrictive access risk pleasing noone but at the moment there is little else
on the table. We also recognise that concerns about migration are many and
varied and that they interconnect with concerns about other policy choices: cutbacks
in public services, the failure of the planning system to deliver sufficient
and affordable housing to meet local needs, and the failure of the enforcement
agencies (where they exist) to ensure that EU workers’ employment rights are
The system we propose would show that the UK is responding to the
basic calls to take back control of immigration, while giving the government time
to tackle the deeper seated, more intractable problems concerning lack of
skills and training in the UK and the need to provide proper funding for public
Barnard & Peers: chapter 27
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