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
- Article 45 TFEU
- 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'
- Make it possible for any Member State ('Union citizens') to enter any Member State freely and to reside wherever they wish
- 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.
- s7(1)
- 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
- Treaty Provisions
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