Free Movement Background
Membership of the European Union has had a profound impact on immigration and residency rights in Ireland. Most rights apply to both EU, EEA nationals and Swiss Nationals. The rights have been extended in scope over time, beyond the initial rights which were broadly the right to take up employment or establish a business. The rights now apply as part of so called “EU citizenship.
As originally constituted, the right of free movement allowed a national of an EU state to travel to another state to engage in employment, establish himself as a self-employed person, establish a company, branch or agency, provide or receive services. He was entitled to equal treatment with nationals. Ultimately, case law has progressed to removing restrictions and obstacles on free movement which ostensibly neutral, but which are including indirectly discriminatory
There were significant limitations to the free movement of labour and traders in practical terms. Employees and other workers who have connections with a state such as social welfare benefits and pensions were not necessarily protected. The inability to move with a family and connected persons was a significant limitation.
Later, EU legislation and decisions of the European courts on the meaning of the fundamental Treaty freedoms has given greater effect to the free movement principle. In particular, there are rights for family members to come and settle in the host state. There is greater protection for pensions and other social benefits.
EU Treaty Rights
Article 45 of the Treaty on the Functioning of the European Union Treaty provides that freedom of movement for workers shall be secured within the EU. Freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the member states as regard employment, remuneration or other conditions of work and employment.
It encompasses the rights
- to accept offers of employment actually made;
- to move freely within the territory of states for this purpose;
- to stay in a state for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
- to remain in the state territory after having been employed subject to conditions as may be embodied in implementing regulations drawn up by the commission.
The above freedom is subject to limitations justified on grounds of public policy, public security and public health. The provision does not apply to employment in the public service.
Scope of Treaty Freedom
The Article is directly effective. The protections apply to EU citizens and their families. The requirement applies not only to the actions of public authorities but also includes rules of any nature and it regulating in a collective manner employment or other provision of services. The EU institutions have adopted legislation to give effect to free movement of workers.
Initially, the freedom applied to the 15 older pre-2004 EU states. Citizens of Cyprus and Malta obtained the immediate benefit of free movement on accession in 2004. Citizens of the other eight 2004 accession states (followed by Romania and Bulgaria) did not enjoy the full rights, until after transitional periods ended. Some states including Ireland and the UK opened the labour market to all ten new member states as on from 2004.
Article 45 applies to a worker, which includes any person insured under social insurance schemes. “Worker” has been interpreted widely by the courts. It includes persons performing any service of economic value in return for remuneration. It covers relationships which are not strictly employment relationships including those of trainees and apprentices.
Application of Treaty Rights
The broad Treaty rights require that the EU national is engaged in economic activity, in the absence of independent means. The rights granted to non-economically active persons are in different terms.
The EU rights arise where there is an interstate element. This typically involves the movement of a worker or service provider from one state to the other or the provision of a service cross-border. The Treaty and Directives have no application to purely internal matters. However, the effect in some cases may be that nationals who have exercised EU freedom of movement rights may enjoy greater rights than nationals who have not done so.
A matter which may appear entirely internal may, in fact, may involve free movement on the basis that it might otherwise have a deterrent effect. The citizen might be otherwise deterred from exercising his rights.
Right to Enter State
There is a right to enter a state for the purpose of searching for work. There is no fixed time limit. Six months is generally considered reasonable. A migrant worker who has not found employment at that time may be deported in accordance with case law unless he can provide evidence that he is actively seeking employment.
There must be a genuine service or work. The activity performed need not be full time. A person who is employed part-time may qualify if the activity is genuine and effective, even if the salary is insufficient to support himself and he relies on social assistance to bring his income to minimum levels.
The activity must be economic in nature. Participation in a social scheme may not suffice. Work for a charity where a pocket money is paid may be sufficiently economic in nature. If the work is marginal only, the person may not be regarded as a worker.
A citizen of the EU does not need to register his presence in the State with the immigration authorities. Formerly residence permits were required granted to establish identity and entitlement. The permit was valid for five years and was renewable automatically. A residence card is no longer required.
The rights potentially continue for persons who have been employed, and who continue to reside in Ireland. Termination of employment does not terminate one’s status as a worker for this purpose. Rights may subsist for training and education as well as social assistance.
Citizenship Type Rights
In 1990, the European Communities enacted Directives giving the rights of movement and residence for retired persons, students and persons with their own independent means. They were entitled to travel to and reside in other EU states provided they had sufficient resources and health insurance.
The Citizens’ Rights Directive in 2004 improved rights for EU migrants and their families. In particular, they need not demonstrate economic activity after five years and in the first three months. During the interim period, they must either have sufficient resources and medical insurance or be engaged in an economic activity such as to support themselves and their families.
In broad terms, the EU Treaty rights and legislation implementing them, allow nationals and citizens of other EU states to move to and reside in Ireland provided that they
- will be engaged in economic activity (employed or self-employed);
- will have sufficient resources and illness insurance to ensure that they do not become a burden on the social services of the State;
- will be enrolled as a student or vocational trainee;
- are a family member of a Union citizen in one of the previous categories.
Extent of Citizenship Rights
The EU rights apply to nationals of EU states. The Treaty provides that every person holding the nationality of a Member State shall be a citizen of the (European) Union.
EU Treaty Rights do not apply to non-EU family members of Irish nationals. There are also statutory for third-country national family members of EU citizens. They are on more restrictive terms.
There are rights for non-economically active persons from other EU states, to enter and reside in Ireland. This includes certain students, retired persons, economically non-active persons and their dependents. The applicant must show that he has sufficient means to support imself, and his dependants, without resort to social services.
In the case of companies, nationality is equivalent to the company’s seat. The state of the company’s seat is that in which the company or firm is formed; has its registered office, central administration or principal place of business.
Spouse and Family Rights I
The Directive on the right of citizens of the EU and their family members to move to and reside freely within the territory of the Member States applies to Union citizens who move to or reside in a Member State other than that of which they are a national.
The family of a worker enjoy certain rights dependent on the worker’s status. A spouse may accompany a worker in the host state whether or not he or she is an EU national. Spouses may take up activities as an employee or self-employed person in the state on the same conditions as a national. Partners of EU citizens may be admitted where they are in long-term relationships.
Permanent residence status for EU citizens and family members may effectively arise after five years. Non-EU family members must have been lawfully resident in another EU state before they can become entitled to reside in Ireland.
Spouse and Family Rights II
Regulations giving effect to the Citizenship Directive confer rights to reside on EU citizens and their families
The spouse’s right to travel to another state accompanying his or her spouse exercising a right of employment may be stronger than the right to enter the home state, which may choose to apply more stringent immigration criteria.
EU law requires that the marriage be genuine marriage and not a sham or marriage of convenience. The non-national must reside in the state of nationality with the spouse before exercising the right to move.
The children of the employee are entitled to admission into the host state. They are entitled to education, traineeship, apprenticeship services on the same conditions as nationals. They may be entitled to social and rehabilitative schemes and grants.
A child of a migrant worker exercising the right may continue education in the host state even after the parent has returned to the home state. This applies even his studies are interrupted and he subsequently returns because it was not possible to continue the studies in the host state. It applies even if the children are over age and independent.
National rules may not discriminate between host state nationals and other EU nationals. An individual who is lawfully admitted to an EU state must not be discriminated against on the grounds of nationality in relation to access to employment or in the exercise of the right of establishment. Similar provisions apply to access by non-economic migrants with independent means.
There are limitations on access to social assistance and maintenance. Persons exercising the above rights must do so in accordance with the conditions as to medical insurance and own resources etc.
Those with permanent residence (after five years) need not show that they are workers, self-employed or have their own resources. They are entitled to equal treatment in respect of social assistance and other social schemes, including educational maintenance and grants.
Discrimination against other EU nationals may be direct or indirect. The courts distinguish between distinctly applicable measures and indistinctly applicable measures.
A distinctly applicable measure or direct discrimination is unlawful in itself unless justified on one of the limited public interest grounds set out in that Treaty. It is not necessary to a show that they affect a substantially higher proportion of migrants than nationals. It is enough that they likely to or liable to have this effect.
Where migrants have complied with their national rules, there is a presumption that they should not be required to comply with unnecessary host state rules. This is said to be a double burden.
Indirect Discrimination I
Indirect discrimination or an indistinctly applicable measure is discrimination in effect in respect of an ostensibly non-discriminatory measure. It may be justified on one of the limited public interests ground in the Treaty or on one of a number of other grounds of justification developed by the EU courts.
Conditions imposed by national law are indirectly discriminatory, where although applicable irrespective of nationality,
- they principally affect migrant workers or the great majority of those affected are migrants where they can be more readily satisfied by national workers than by migrants or
- where there is a risk that they may operate to the particular detriment of migrant workers.
Indirect Discrimination II
Rules may be indirectly discriminatory where that they are discriminatory in effect even if not in their form. This is so if a greater number of nationals of the host state than of non-host state can comply with the requirements. The European Court of Justice has held that rules which although not explicitly discriminatory but which are an obstacle to movement of employees are invalid.
In the famous Bosman ruling, the European Court of Justice held that the football transfer rules which applied irrespective of nationality under the International Football Association rules had the effect of impeding the free movement of players and could not be objectively justified. The effect of the rule was that transferring players had to pay a sum of money, or their transferee clubs had to pay a sum of money on their behalf. It had the effect of constituting an obstacle to the free movement of workers.
Extent of Right
The principle of equality applies to all terms of employment including remuneration, terms and condition. The EU legislation prohibits discrimination against a person exercising the right of free movement to take up employment.
Equality extends to trade union rights. This includes the rights to participate in trade unions as well as membership. The same principle applies to membership of professional associations.
States may impose conditions relating to linguistic requirements where they are a requirement of the position concerned. They may also be applied where this is necessary for promoting a national policy expressing national identity notwithstanding, that it was not an objective requirement for the position.
The statutory rights of employees apply equally to nationals and non-national EU employees who exercise free movement rights. They must also have the same tax and social advantages, access to vocational education, rights to participate in union and rights to housing and other benefits. A social advantage for this purpose need not necessarily be linked to employment but may exist by reason of status as an employee or by virtue of residence.
Social advantages include social welfare schemes, social security and wider benefits. The entitlement extends to employees, their families and job seekers. Certain benefits may be limited to those in employment only. A residence requirement may be imposed as appropriate and proportionate.
Social advantages include entitlements to study and finance for migrant employees who become students in the host state. He may be obliged to undertake retraining by reason of labour market law. If the employee becomes involuntarily unemployed he may be entitled to finance if there is a link between the course of study and the previous occupation. He is not entitled to finance if the previous employment is not linked or is ancillary to current studies only.
Measures Hindering Access
Rules which are an obstacle to free movement are potentially invalid unless they are proportionate and capable of justification on public interest grounds.
Measures may be neither discriminatory in law or in fact but may hinder access to the labour market. A law prohibiting cult calling was held to directly affect access to the market in services in other states and be capable of hindering trade and services between the states, notwithstanding that it was not discriminatory. In the particular case, it was decided that the rule was proportionate.
It was held in a case involving the UK, that a third country spouse of a UK national who had exercised the right to work in another state was entitled to have the third country national join her in the home state on the same terms as would apply under EU law. Otherwise, the court reasoned there might be a deterrent from exercising the right. The exercise of the free movement rights must be genuine rather than temporary or a sham for the purpose of evading national rules.
Limits to Rights
There are limits to the extent to which rules or measures or restrictions which may impede the exercise of Treaty freedoms are invalidated. The courts have been conscious not to extend the Treaty provisions too far, as this could invalidate almost any conceivable national rule.
Rules which affect the terms and conditions on which goods are sold, and services are provided are generally matters for the EU state. The extension of the Treaty freedoms to potentially invalidate restrictions that might affect interstate trade is controversial. It may lead to the prospect of courts including domestic courts applying EU law to invalidate domestic policy decisions.
Indirectly discriminatory provisions may be justified by objective public interest or general interest requirements. If the measures are objectively justified and proportionate, they do not breach the Treaty freedoms.
The effect of the measure must be immediate rather than remote and hypothetical. Where a matter or event is too uncertain, indirect or remote to actually hinder movement, the courts have been unwilling to extend the principle further.Under the principle of proportionality, invalidation is possible only where measures are wholly disproportionate.
Abuse of Rights
The Citizens’ Right Directive expressly allows states to adopt the necessary measures to refuse, terminate or withdraw any right conferred under it, in the case of abuse of rights or fraud such as marriages of convenience. The measures must be proportionate and subject to procedural safeguards. The potential for the use of free movement rights for bypassing national immigration rules has been controversial and was addressed in the UK settlement decision prior to the Brexit vote.
Measures taken by states where justified, to deny Treaty rights, must comply with fundamental human rights. The European Union has for many years adopted the principles of the European Convention on Human Rights and its evolving human rights jurisdiction. In 2007, the EU adopted the Charter of Fundamental Rights containing similar but further protections, which has been given increasing effect in EU court decisions.
Rules are Directly Enforceable
The EU fundamental freedoms have direct effect in the Member States. They can be invoked against states including the home state and the host state, where applicable. The provisions apply not only to states but as between private parties. This has been held in respect of Article 45, the fundamental rights of workers. It is less clear if it applies to other provisions.
The Treaty rights apply to private persons where contracts and other arrangements have a prospective effect on the exercise of the freedoms. The Treaty rights are addressed to states, but they are applied to private regulatory bodies such as trade unions, professional regulatory bodies. They are also applicable as between purely private parties to the extent that they have an effect which is in breach of the terms of the freedoms.
Under general principles of the EU law, a right of action for damages is available where a rule of law which is intended to confer benefits on the claimant, the breach is sufficiently serious, and the breach causes loss and damage to the claimant.