By Gareth Davies
Of course, it wasn’t all about immigration. But that claimed flood of Eastern Europeans was certainly at the heart of the leave campaign, and, unusually for an immigration debate, it was their right to work in the UK that was the political issue: there were too many of them, they were pushing down wages, they were keeping the low-skilled native out of work, they were costing the government a fortune in in-work benefits, they were making towns and villages unrecognisable and alienating the more established inhabitants.
Whether or not they were true, a lot of these claims seemed to be shared by both sides. Cameron didn’t so much deny them, as offer counter-claims (but they do add to the economy) and promises of change (if you vote remain, we’ll have a new deal and be able to do something about it!).
So the question is this: if the government thought that free movement of workers was causing such terrible problems, why didn’t it impose restrictions years ago when the post-Enlargement flood was at its high point and the issue first became prominent?
Primary law and the possibility of restricting free movement
Because it couldn’t, you cry! Because free movement of workers is one of the sacred principles of the EU, enshrined in the Treaty! EU law doesn’t allow restrictions! That’s why Cameron had to beg for his emergency brake, and ultimately the UK had to leave!
Actually, I don’t think the law supports that position. The government could have, and assuming it believes its own rhetoric (something we’ll never know for sure) probably should have, imposed restrictions on the right of Union citizens to work in the UK. The argument goes like this:
Article 45 TFEU provides for free movement of workers, and spells out some of the rights which this involves – the right to move freely between states and look for work and accept it and so on. It also says that these rights are subject to limitations justified on grounds of public policy, public security or public health.
What’s the threat to public policy? Well, how about the political stability of the country, and its capacity to remain a member of the EU? These are serious policy matters. And the post-fact argument for this claim turns out to be rather strong, given that the threat actually materialised. There may well be issues of proof, to which I’ll return below, but it’s worth noting that the Court itself has recognised that public perceptions can also play a role in creating and responding to threats. The French Farmers case supports this obliquely, but more recently, the Court has recognised that public revulsion at crimes against children may be a legitimate factor in deciding on expulsion of such criminals. In the UK context, public anger at child abuse and public anger at the EU are rather more comparable than one might wish.
There are also the more socio-economic issues. If an extreme wave of migrating workers threatens the stability and sustainability of the benefits system, as well as the social fabric of certain areas of the country, that’s public policy too. There are several cases where the Court has recognised that generally permissible migration may be restrained where it reaches a point that undermines aspects of the welfare state: Bressol, on students, and the free movement of patients cases (see e.g. here). In these cases the issue was located within non-Treaty justifications, so called mandatory requirements, rather than public policy, but given the national scale and consequences of the claimed migration and the claimed threat, there seems no reason why it could not be brought within public policy too. The case law displays beyond doubt that public policy justifications and mandatory requirements are significantly overlapping categories.
Once again, the empirical question of whether these threats are real is contestable and contested, as they say. However, a nice twist here is that the Commission appears to have accepted that the claim would succeed: the emergency brake that it proposed to construct if the UK remained in the EU was to be triggered if migration reached a point that the functioning of the benefits system was threatened or the employment market seriously disturbed. In a rather contentious and deeply political little note they added that they considered the conditions for this had been met, and the UK should be confident that it could rely on the brake. So there we have it! The grounds for invoking a public policy restriction are officially met!
Some will be shaking their heads: but there is secondary legislation. Quite a lot of it. The Citizenship directive, the regulation on social security, and the regulation on migrating workers’ rights. When specialised law exists, we should look at this first. Yet secondary legislation is subject to the Treaty, not superior to it. The public policy derogations in the Treaty cannot be removed by directive or regulation.
It is certainly true that one expects the legislature to take account of possible threats and problems in adopting legislation, so that where a complete regulatory framework exists one would expect it to be far less likely that a good reason for invoking a Treaty derogation would remain. The kinds of systemic threats that free movement might cause would ideally have been defused and addressed within the secondary law. However, it is the nature of matters such as public policy and public order that the threats to them cannot entirely be predicted. These derogations exist precisely for the situation where a generally desirable and functional set of rights have unexpected and dangerous results. Then, the Treaty makes clear, the urgent and serious policy interest prevails. No secondary law can detract from this.
Secondary law can, however, interpret the Treaty, in persuasive, if not formally binding, ways. The Citizenship directive specifically addresses public policy derogations from free movement, so that one might think that these articles of the directive should frame any public policy discussion. That would be discouraging for the UK, for the directive takes a distinctive approach: public policy may only be invoked based on the personal conduct of the migrant, not for reasons of ‘general prevention’. ‘Justifications isolated from the particulars of the case’ shall not be accepted. All this comes from early case law too, so it is not just secondary law, but also the Court’s own interpretation of the Treaty. But if the Treaty means this, then how can it be invoked for mass restrictions?
Well, these provisions of the directive, just like the case law they came from, are to do with expulsion of individuals whose behaviour is a threat to society, usually because it is criminal. It is easy to see the justice of insisting that an individual can only be expelled because of what they have done, and not just because of their nationality or race or religion, for example, or because others like them tend to behave badly. Moreover, if an individual is expelled for reasons nothing to do with his behaviour, it is hard to see this as an effective – and therefore justified – measure protecting public policy.
This is a quite different context from the kinds of restrictions that the UK wanted to impose. It could, for example, have limited the right to ‘in-work benefits’ for a number of years, or limited the number of migrant workers that could live in a certain area or work in a certain industry, for a certain period, in the event of truly exceptional inflows having significant socio-economic consequences. These measures would affect groups, but it would do so because precisely the number of people exercising certain rights was perceived to create the threat. Such general actions would be appropriate given the nature of the public policy threat, in contrast to the prejudice-based expulsions prohibited by the directive.
Bressol and the free movement of patients cases are relevant again here: these both involved the systemic threat created by large numbers of educational or health migrants, and the Court recognised that if such a threat existed then restrictions on the right to such migration were an appropriate response. There seems no legal problem with the idea of imposing benefit, residence or employment restrictions on migrant Union citizens if the policy threat is genuine and demonstrable.
Proving the existence of a threat
This is of course the rub: can it all be proved? Many remain voters consider migrants from Eastern Europe to have enriched the UK, socially as well as materially, and many of the claims made by both Cameron and the leave campaign about their consequences for employment and benefits were ridiculed. Yet the question for a lawyer is not so much whether the claims were right, as whether they can be defended according to the standards of the relevant judicial review.
One critique of any public policy claim would be that the UK’s socio-economic problems are not caused by migrant workers, but by indigenous policy decisions. If the minimum wage was higher, then wage levels would be less vulnerable to migration, and the need for ‘in-work benefits’ would be lower. If there were serious attempts at addressing the enormous problems of Britain’s poorest areas, then people would be less threatened and angered by incoming migration. If public services were at a level appropriate to a rich country, then the sense that there is not enough for everyone, and migrants must be kept out, would be less prevalent. So sure, the argument goes, migrant workers have aroused a significant public backlash, but that is because the government has done far too little to create a resilient, fair, supportive society, in which there are opportunities for all and migrants can be easily absorbed.
On the political threat, there is another argument: the anger generated by large numbers of migrant workers, and the transfer of that anger to the EU, is not really caused by the migration, but caused by years and years of opportunistic government rhetoric, in which everything short of a rainy summer was blamed on ‘Europe’. The public policy threat was created by the government, and could have been removed by the government, if only they had stopped lying so loudly and persistently.
Any public policy measure must be proportionate – which is to say it must be the least restrictive necessary. Both these arguments suggest that there are alternative things that the UK could do, or could have done, to solve its political and social problems with migration, and these alternatives would be less restrictive of free movement rights.
However, while tempting, this position may overstate the intensity of the judicial review required. In practice, governments are not required to show that there is no other policy path they could have taken to solve their problems. In Bressol, the Belgian government could have limited the inflow of Dutch students by raising student fees. A different kind of policy in France might have led to French farmers being better able to cope with globalisation and imports of agricultural produce. In general, where states impose necessary restrictions one could often argue that different policies would have prevented the problem arising in the first place. Such hypothetical approaches are not used by the Court. The broad choices of policy are the subject of politics, and a state embracing inequality is not expected to become one which embraces redistribution, just as a state believing in free education is not expected to give that up. States make their choices, and if these lead to situations in which their society or institutions are threatened, the public policy invocation is assessed in that context, not retrospectively (you could have done this….). Moreover, the standard of review is not so intense that courts must explore whether governments could choose or have chosen different approaches to high political issues such as centralisation, redistribution and liberty. A public policy measure responds to the world as it is now, not as it ought to have been made to be.
The Commission has already accepted that the UK is facing a ‘threat’ justifying restrictive measures. The UK government has been claiming it for several years. It would seem that if they were able to marshal the numbers and data to support the claim of exceptional flows, exceptional burdens, and exceptional social and political risks, they would have had a good case, and probably still do. There is nothing legally stopping restrictions being imposed now.
Nevertheless, the quality of a legal argument is not just dependent on its coherence, but also on its chance of actually persuading a court. Despite their recent flexibility, had the UK taken this approach two years ago the Commission probably would have screamed, many Member States would have cried foul, and it is far from clear that the Court of Justice would have been sympathetic.
In fact, as the cases mentioned above show, the Court is more nuanced than the leave campaigners liked to suggest. In Bressol it left it to the national court to decide whether the actual threat had been proved. It is quite possible that it would do so on a reference concerning UK imposition of benefit or employment restrictions.
The division of functions between the Court of Justice and national courts
More interestingly, even if it did not, it would be perfectly open to national courts to ignore it: the division of functions between national courts and the Court is clear, and the final assessment of facts, and of proportionality, is for the national judge. The Court often oversteps its limits to effectively decide on a case, and this is often welcomed by national judges who simply want an answer to their concrete problem. However, a robust government lawyer, and a robust national court, could reasonably say that the only issue for the Court is whether serious threats to the stability of the benefit system, and whether the threat of serious political instability, fall within public policy. Obviously they do. The rest is for UK judges. They could even make a good case for refusing to refer: the legal parts are Acte Claire. It is judging the facts that is tricky.
So perhaps all this could have been dealt with in UK courts. Was the dominance of the Court of Justice which leave campaigners were so angry about just the result of sub-assertive UK government behaviour? What an irony! Must we leave the EU because we are too weak to stand up for ourselves within it?
It is not quite so easy: the Commission would certainly have brought an enforcement action against the UK, and in such an action the Court decides the case. There is no division of judicial functions any more. So the UK could not take matters completely into its own hands.
Still, surely the UK should have welcomed such a case, and fought it fiercely. It would have given the government the chance to make good its claim that migrant workers were creating a serious threat. It would have been able to put data on the table and explain its position in law, and would quite possibly have enjoyed considerable support. Perhaps it would have lost, but is that risk a good reason to not even attempt to defend a position it claimed both to believe in, and to consider important to the national interest? And if it had won, that would have changed the course of the EU, in ways too complex to easily conceive. The UK, in saving itself, might have reformed Europe too.
It is not too late. I have little sympathy for the argument that migrant workers threaten the UK, but if across the political spectrum this is believed to be true then even now, for the last few years of UK membership, any government claiming to represent and protect its voters should surely feel obliged to take corresponding action. Let us have a serious discussion about the limits of free movement of workers, for contrary to much of what is being cried out in Brussels it is far from absolute. The problems of the EU extend well beyond Brexit, and migration of persons and workers is contested in many places. The Member States of the Union deserve a chance to learn what their Treaty really means.