EU Law - Introduction to Free Movement of Persons

  • Created by: Alasdair
  • Created on: 15-11-20 14:36
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  • Introduction to Free Movement of Persons
    • Treaty Provisions
      • Article 45 TFEU
        • 'Freedom of movement for workers shall be secured within the Union'
        • People exercising these rights often referred to as 'migrant workers'
      • Article 49 TFEU
        • deals with rights of self-employed people and their businesses
        • 'restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited'
      • Article 56 TFEU
        • also deals with free movement of rights of self-employed people and their businesses
        • 'restrictions on the freedom to provide services within the Union' shall be prohibited.
      • Treaty Articles aim to provide nationals of any Member State may enter and stay or live in any other Member State ('host state')
        • in order to be employed or run business in host State
        • Also, they must not be discriminated against in any way
          • Treated in same way as nationals of host State
      • Treaty Articles are directly effective
        • can be relied upon by individuals in national courts
    • Directive 2004/38
      • Simplifies and codifies great deal of law both derived from previous secondary legislation and developed from case law
      • Main aims of Directive
        • Make it possible for any Member State ('Union citizens')  to enter any Member State freely and to reside wherever they wish
          • Rights apply whether they are workers, self-employed people, students or 'economically inactive persons'
    • Impact on UK Immigration Law
      • Profound impact on UK immigration law
      • Immigration Act 1971 and the Immigration Rules
        • UK immigration law primarily set out here
        • A person who is not a British citizen may not enter or stay in UK unless permitted to do so by 'leave to enter' and 'leave to remain' respectively
      • Immigration Act 1988
        • s7(1)
          • Person who has an 'enforceable [Union] right' (a directly effective right of entry and residence under EU Law) does not require leave to enter or remain in UK
        • Union citizens and their family members benefitting from rights of free movement have enforceable rights under EU Law, and so do free movement under EU Law.
      • Immigration (European Economic Area) Regulations 2006 (the 'EEA Regulations')
        • Transpoed relevant provisions of Treaty and Directive 2004/38 directly into UK Law
      • Direct effect of Articles 21, 45, 49 and 56 TFEU and Directive 2004/38
        • Union citizens can invoke them to challenge attempts by UK immigration authorities to refuse them entry to UK or to deport them.
        • Although Directives have only vertical direct direct effect, they can be invoked against UK immigration authorities as organ of the State
        • In UK immigration authorities involving Union citizens
          • British courts often directly consider provisions of relevant EU legislation and apply them as interpreted by ECJ
          • Where there is doubt about interpretation of EU Legislation
            • British courts may make Article 267 TFEU reference to ECJ
      • EU legislation has significantly curtailed ability of British Government to deport Union citizens
        • EU legislation together with ECJ's case law makes it virtually impossible for Government to achieve this objective until end of transition period
      • Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2020
        • Will end free movement rights for EU citizens following end of transition period and paves way for points-based immigration system
      • UKs exit from EU will deprive British citizens of their free movement rights
        • Therefore, become harder for British citizens to live, work, study and retire in the EU


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