Reflecting on Brexit: migration myths and what comes next for EU migrants in the UK?

Abstract

This article considers the potential impact of Brexit on the family and welfare entitlement of EU migrants living in the UK and of UK migrants living in other EU Member States. Whilst the vast majority of those campaigning for the UK to leave the EU (publicly at least) argued in favour of those already present in the UK at the time of the referendum having their status protected, the government has been considerably less vocal in its support for this outcome. As such, EU migrants living in the UK presently face considerable uncertainty as to their own and their families’ future legal status and entitlement to welfare rights. The article will expose some of the evidential and legal gaps in the assertions made about EU migrants’ socio economic entitlement with a view to providing a more informed, legally accurate appraisal of how the Brexit negotiations could unfold.

Keywords:

• Brexit
• free movement
• welfare rights of migrants
• EU citizenship

Notes

1. Such as Article 45 TFEU, which establishes the free movement of workers, and Article 21 TFEU which sets out a general right of free movement for all EU citizens subject to the limitations and conditions set out in the Treaties and secondary legislation.

2. Particularly, Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States OJ [2004] L158/77, and Regulation 492/2011 on freedom of movement for workers within the Union OJ [2011] L141/1.

3. European Council, ‘A New Settlement for the United Kingdom within the European Union’ OJ [2016] C 69 I/01.

4. In contrast, the entitlement of economically inactive migrants, including students, are more dependent on satisfaction of “resources requirements” so as to avoid becoming a burden on the host state’s social security system (Article 21 TFEU; Article 7(1)(b) of Directive 2004/38).

5. See also Case C-456/02 Trojani ECLI:EU:C:2004:488 and Case C-209/03 Bidar ECLI:EU:C:2005:169.

6. E.g. Article 24(2), Directive 2004/38.

7. For a further example of the Court’s increasingly restrictive approach, see also: Case C-299/14 Garcia Nieto ECLI:EU:C:2016:114.

8. Draft Declaration of the European Commission on the Safeguard Mechanism, 2 February 2016, EUCO 9/16.

9. Particularly Article 7(2) of Regulation 492/2011 which specifically provides migrant workers should be able to access the same social and tax advantages as nationals.