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The UK’s rights to control its borders and to check anyone entering the UK no matter where they come from are explained below.

  • Like all EU Member States, the UK is subject to obligations to ensure the freedom of EU citizens to move and reside freely within the EU.[1] Freedom of movement of workers and rights of establishment in other Member States were fundamental aspects of the common market well before the UK joined the EEC in 1973 and have remained of significance to the internal market programme.[2]
  • These rights do not undermine the UK’s ability to control its borders, for three principal reasons.
    • First, the largest category of migrants to the UK come from outside the EU, and are not entitled to rely on EU laws on freedom of movement.[3] The UK’s ability to restrict entry to this group is unaffected by its membership of the EU.
    • Secondly, whereas many Member States have replaced individual controls with a common policy at their common frontier (known as the Schengen Area),[4] the UK chose to retain its right to independent border control and is entitled to check the identity of every individual entering the country.[5]
    • Thirdly, EU law does not provide nationals from other EU Member States with an unlimited right to enter or remain in the UK. Most importantly, the right to live in the UK without any conditions or formalities only lasts for three months.[6] In addition, the right is subject to limitations “on grounds of public policy, public security or public health”.[7] Specifically, the UK retains the right to restrict the freedom of movement and residence of EU citizens and their family members, where their personal conduct represents “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”[8] and the home Member State of any expelled EU nationals must allow those nationals to re-enter their territory.[9]
  • The debate about economic migration within the EU needs to be put into context. While immigration is an emotive topic and can cause substantial social unrest, freedom of movement within the EU internal market helps address skill shortages and the consequences of an ageing population. According to the OECD, migrants are more likely to be net contributors if they are younger, in work and skilled. The evidence suggests that on average, EU migrants make a net contribution to UK public finances.[10] The Office for Budget Responsibility estimates that immigration will reduce public sector net debt as a share of UK GDP over the long term relative to the levels it would otherwise reach.[11]
  • As well as tightening up the rules on sham marriages and on suspected terrorists and criminals coming to the UK, the recently agreed Settlement introduces an “emergency brake” to restrict EU migrants in the UK claiming in-work benefits for a period of up to four years. This restriction is operable over a seven-year period.[12] The Settlement also gives the UK an option to index child benefit payments to the cost of living in the country where the child resides, for all new arrivals to the UK. This mechanism can be extended to all existing workers from 1 January 2020.[13]

 

  1. Article 21(1) TFEU – http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT.
  2. For example case 41/74 van Duyn v. Home Office [1974] ECR 1337 – http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:61974CJ0041&from=EN – was one of the first cases brought against the UK Government after accession, but it was based on a directive which had originally been adopted in 1964 – Council Directive 64/221, “on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health” – http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31964L0221:EN:HTML.
  3. By way of example, the Migration Observatory has calculated that in 2013, 47.1% of migrants to the United Kingdom were non-European nationals, while 14.4% were British nationals returning to the United Kingdom after a prolonged absence (38.2% were nationals of other EU Member States) – http://www.migrationobservatory.ox.ac.uk/briefings/immigration-category-workers-students-family-members-asylum-applicants.
  4. The Schengen Area first consisted of Belgium, France, Germany, Luxembourg, and the Netherlands following the conclusion of the Schengen Convention on 19 June 1990. All EU Member States, other than Ireland and the United Kingdom, became parties to the Schengen Convention in May 1999 on the entry into effect of the Amsterdam Treaty (though not all those Member States became part of the Schengen Area at that time and indeed certain countries still remain outside).
  5. Protocol 20 to the TFEU contains the opt-out from the prohibition of internal border controls. This authorises the UK to maintain border controls on persons seeking to enter the UK from other Member States. The protocol allows the UK and Ireland to maintain the Common Travel Area. It also allows other Member States to impose equivalent border controls on persons entering their territories from the UK and Ireland – http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT.
  6. Article 6(1) Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC – http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Al33152.
  7. Articles 45(3) and 52 TFEU – http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT.
  8. Articles 27(1) and (2) Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC – http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Al33152.
  9. Article 27(4) Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC – http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Al33152.
  10. The Centre for Research and Analysis of Migration estimates that EU immigrants arriving in the UK between 2001 and 2011 contributed a total of £20 billion more in taxes than they received in benefits. By contrast, the UK-born population over the same timeframe contributed £617 billion in taxes less than they received in benefits over that period – The Economic Journal, The Fiscal Effects of Immigration to the UK, Christian Dustmann and Tommaso Frattini, November 2014; see further at www.ucl.ac.uk/news/news-articles/1114/051114-economic-impact-EU-immigration.
  11. Office for Budget Responsibility, Fiscal Sustainability Report, July 2013 – http://budgetresponsibility.org.uk/fsr/fiscal-sustainability-report-july-2013/.
  12. European Council, European Council meeting (18 and 19 February 2016) – Conclusions – Section D: Social Benefits and Free Movement, EUCO 1/16, Brussels, 19 February 2016, page 23 – http://www.consilium.europa.eu/en/meetings/european-council/2016/02/euco-conclusions_pdf/.
  13. European Council, European Council meeting (18 and 19 February 2016) – Conclusions – Section D: Social Benefits and Free Movement, EUCO 1/16, Brussels, 19 February 2016, page 22 – http://www.consilium.europa.eu/en/meetings/european-council/2016/02/euco-conclusions_pdf/.