Not quite free movement

In this, article, Law Centre (NI) immigration adviser Catherine Jackson looks at the recent accession of ten new member states to the European Union and the implications of this accession for free movement within the European Union in general as well as the broad implications for UK immigration law in particular.

On 1 May 2004, the European Union undertook the largest expansion since its founding in 1952. Eight former members of the Soviet bloc (the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia) known as the A8 countries and two island nations (Cyprus and Malta) acceded to the EU. These countries comprise approximately 75 million people, making Europe the world’s largest trading bloc. As a condition of accession, all ten nations had to withdraw from free trade agreements such as the Central European Free Trade Agreement with third countries with effect from the date of accession. This had obvious implications for the A8 countries that all had previous trade agreements with the Russian Federation. Also the A8 states are expected by the EU to implement EU external border control rules and much of the EU visa regime immediately.

Historically, the A8 nations have had extensive trade and other treaty relationships with bordering states such as Belarus, the Ukraine and the Russian Federation. In addition, the EU had to come to a separate arrangement with the Russian Federation regarding Kaliningrad, a detached Russian enclave located between Poland and Lithuania. This agreement involves the issuing of Facilitated Transit Documents for Russian citizens travelling between Kaliningrad and other parts of Russia by land. Otherwise Russian citizens would have to obtain visas (and presumably entry clearance) to pass through either Poland or Lithuania.

All of the countries involved had to demonstrate that they had met what is known as the Copenhagen criteria. In 1993, at the Copenhagen European Council, the EU developed a list of conditions that each potential accession state must meet before being accepted into the European Union. It was at this particular council that the question of enlargement became an issue of when, rather than if, enlargement should occur. The Copenhagen criteria require that all member states be democratic states which respect human rights and minority rights. Member states must have functioning market economies and the ability to cope with competitive market pressure. Finally, member states must have the ability to effectively apply EU rules and policies. The necessity for an applicant state to be a democracy respecting human and minority rights has meant that Turkey, with a history of problems with its Kurdish minority and an intolerance of dissent, is still awaiting an opportunity to begin accession negotiations. Bulgaria and Romania, which are scheduled to enter the EU in 2007, will also have to meet the Copenhagen criteria.

However, with respect to full membership, the eight former Communist nations referred to as the A8 were treated significantly less advantageously than Cyprus or Malta. Cyprus and Malta immediately became full members of the Free Movement of Workers Agreement upon accession to the EU on 1 May of this year. However, the A8 nations did not automatically become full members of the Free Movement of Workers Agreement upon accession. This state of affairs understandably has led to some resentment and ambivalence in A8 nations. Leaders of A8 nations have spoken with some bitterness about a two tier Europe. EU states have been allowed to block access to their employment markets for an initial two year transitional period. This block can be applied on a bilateral basis with individual countries (rather than across the board to all A8 nations). The transitional period can be extended a further three years if requested by member states from the European Commission on an individual basis. Finally, in exceptional circumstances, the block could be extended to a further two years. All work restrictions on A8 nationals in all EU member states will end seven years after accession.

Unlike other EU states, the Republic of Ireland and the United Kingdom have not opted to impose any block on the right of A8 nationals to work in their countries. The UK does not require A8 nationals to obtain entry clearance to enter the UK and does not place any limit on their length of stay. EEA nationals from all EU countries are removable from the UK on grounds of public policy, public security or public health. It is not clear what would be adequate grounds to remove an EU national on public policy grounds but this is likely to be a difficult burden for an EU government to prove.

Although the UK has not imposed a block on A8 nationals from working in the UK, A8 nationals (except those who already had leave to live and work in the UK on some other immigration basis prior to April 30, 2004) are required to participate in the Worker Registration Scheme. A8 nationals are required to register with the Home Office providing details about where and for whom they work. The obligation to register under this scheme automatically ends when an A8 national has been working in the UK for twelve months without an interruption of over 30 days. The rights of A8 nationals to means-tested benefits is a complicated area of law but basically a worker who is registered with the Worker Registration Scheme and working with an authorised employer will be entitled to claim Working Tax Credit, Child Tax Credit, Child Benefit, Housing Benefit, Income Support and Pension Credit. However, if an A8 national loses her/his job before s/he has worked for twelve continuous months, s/he will be treated as losing the right to reside in the UK and will not be entitled to Income Support, Income-based Jobseeker’s Allowance, Housing Benefit, Child Tax Credit, Child Benefit or Pension Credit. Les Allamby, director of Law Centre (NI), explained this in more detail in an article on the new social security arrangements for EU migrant workers written for the Writ, the journal of the Law Society.{footnote}Social security – new arrangements for EU migrant workers. Les Allamby, the Writ, Issue 157, July/August 2004.{/footnote} Peter Fitzmaurice, a former legal adviser at the Law Centre currently working at the Irish Centre for Human Rights EU-China Network of the National University of Ireland, Galway, wrote an article on immigration and employment rights which can be referred to for more specific advice regarding the employment rights of A8 nationals. This is also published in the Writ.{footnote}New EU states – immigration and employment rights. Peter Fitzmaurice, the Writ, Issue 156, June 2004.{/footnote}

Although public debate in the UK and other EU states has focused on the alleged threat of being ‘swamped’ with low skilled workers, more realistically A8 states fear that they may lose some of their more highly skilled workers especially in the health sector as they will not be able to pay salaries that can compete with the salaries available in established EU nations. Polish physicians for example can expect to earn between ten and fifteen times their current salaries in established EU states. Estonia is trying to use some of its EU accession funds to increase the pay of doctors and nurses in an effort to lessen the impact on its health care system of health care professionals emigrating to established EU nations because of the higher pay available. In this regard, it should be noted that the health sector in both the UK and the Republic of Ireland is very dependent on non-nationals.

Contrary to the dire predictions of the UK tabloid press, during May and June of this year, only 8,172 people from the A8 countries joined the Worker Registration Scheme. A further 14,422 people who were already in the EU also joined the scheme in order to legitimise their status. The tabloid press also predicted that there would be a flood of A8 nationals seeking to claim benefits. In fact, many A8 unskilled nationals are discouraged from seeking employment abroad because of a lack of language skills, poor job prospects and the higher cost of living in the UK. In this context, it is hard to see why a Worker Registration Scheme is needed as the UK is in need of both skilled and unskilled workers.

Finally it is patronizing and insulting to assume that people from the A8 countries would not want to stay at home and make a contribution to their own countries, especially as it is predicted that accession states will benefit from an infusion of investment as the result of accession. Hopefully, in the years to come, EU nations will not seek to extend work restrictions on A8 nationals and the UK will abolish the Worker Registration Scheme.