The EU Rights Clinic: One Year On

The UK is at the forefront of countries where EU citizens experience problems when exercising their right of free movement.

In the twelve months since its establishment, the EU Rights Clinic has received over 60 requests for assistance. 44% of the Clinic’s cases related to problems encountered by EU citizens in the UK. Several problems were also reported in Belgium (12% of cases), Spain (11% of cases) and France (8% of cases).

The Clinic assisted over 160 individuals throughout the EU – of which over half comprised British citizens – and helped them to resolve problems in 14 different European countries.

The problems encountered by the Clinic’s clients span a wide range of issues, but the vast majority of problems related to residence formalities (46%) and visa problems faced by non-EU family members (21%).

During the course of the year, the Clinic provided its assistance in a number of notable cases. The nature of the assistance ranged from assisting EU citizens in completing forms and signposting to EU information services, to providing advice and helping them to appeal before the national courts.

One of the first cases registered concerned a British citizen whose disability benefits were suspended by the UK authorities when he moved to Norway. The Clinic considered this breached the EU Regulation on the coordination of social security on the basis of a judgment handed down by the EU Court of Justice in 2007. The client assisted the client in lodging an appeal before the UK’s First Tier Tribunal and arranged for the client’s free representation at the appeal hearing. In December 2013, the UK Tribunal ruled in favour of our client and ordered the UK’s Department for Work and Pensions to pay back the benefits that had been withheld from the client since 2007. The DWP has sought to appeal the case and we are presently assisting our client in resisting the appeal.

In March, the Clinic assisted ECAS in securing the release of internal documents of the European Commission relating to negotiations over the UK’s so-called “Opt out” from the EU Charter on Fundamental Rights.  ECAS made the initial request for these documents in October 2007, prior to the signing of the Lisbon Treaty. The request was made under EU Regulation 1049/2001 which allows the public to request the release of documents from the EU institutions. After an initial refusal from the European Commission, ECAS took the matter before the European Ombudsman.  The Ombudsman issued a final decision in December 2012 ruling that the Commission was guilty of “a serious instance of maladministration” and that “the Commission’s position constitutes a substantive violation of the fundamental right of access to documents foreseen in Article 42 of the Charter”. Following a new request by ECAS, the Commission released the contested documents on 31 January 2013. The EU Rights Clinic examined the released documents and issued a detailed briefing on their contents.  The released documents indicate that the Council Presidency initially proposed the removal of any reference from the Charter to its binding effects on the Member States as a way to address UK concerns.  The Commission disagreed with this interpretation and considered that an opt-out was preferable to amending the Charter. The case was reported in the European press.

Another notable case involved making an official complaint to the European Commission against the delays faced by EU citizens when crossing the border between Spain and Gibraltar. The Clinic received over 100 complaints from residents of Gibraltar, frontier workers and tourists affected by delays of almost eight hours resulting from border control formalities imposed by the Spanish authorities during the summer of 2013. The Clinic lodged an official complaint arguing how the delays breached the EU rules on free movement, the EU Charter of Fundamental Rights and the Schengen Border Code. Despite the overwhelming evidence provided that the Spanish authorities had imposed excessive and arbitrary border control measures that breached EU law, the European Commission issued a statement in November in which it found that EU law had not been infringed. The EU Rights Clinic has since made an official request for the Commission’s internal documents to determine the precise reasons for its finding of no infringement. Once these internal documents are released, the Clinic will proceed to examine the documents and issue a report.  The Clinic’s involvement has been reported in the Spanish and British press among others.

Our annual report for 2013 will be available in due course.

The views expressed on the blog are personal to the authors and should not be seen as constituting legal advice. It should not be relied upon instead of consulting a lawyer or immigration adviser.

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Swiss vote for renunciation of EU/Swiss free movement agreements

Today, Switzerland voted in a referendum that signals an end to the EU/Swiss Agreement on the Free Movement of Persons that was signed in Luxemburg on 21 June 1999. The Agreement had last been approved by Swiss citizens in a referendum held less than three years ago.

This time, a slim majority of 50.3% of the Swiss population voted in favour of a popular initiative entitled “against mass immigration”. 56% of registered voters reportedly took part in the vote. 17 federal cantons voted in favour, while 9 voted against. In order to be approved, a popular initiative requires a dual majority: the initiative needs to obtain the consent of the majority of the voters, and it must be approved in a majority of the cantons.

The Swiss Ministry of Justice has already indicated it will start work on a legislative proposal to give effect to the new constitutional provision. The Ministry also specified that it would seek to renegotiate the Agreement on the Free Movement of Persons with the EU within a three year transitional period. The Agreement remains in force for now.

The initiative aims to insert a new article into the Federal Constitution of the Swiss Confederation to give the Swiss government absolute control over immigration by imposing caps on migrants living or working in Switzerland. It also mandates that no international agreement concluded by Switzerland can provide for the contrary.

The new constitutional provision that was approved in the referendum reads as follows:

‘Article 121a (new) Management of immigration

1 Switzerland shall regulate immigration as it sees fit.

The number of permits entitling foreigners to reside in Switzerland shall be subject to annual ceilings and quotas. The ceilings shall apply to permits issued pursuant to the immigration laws, including the rules on asylum. The right to permanent residence, family reunification and social welfare entitlements can be restricted.

The annual ceilings and quotas for foreigners exercising a gainful activity will be determined in accordance with Switzerland’s global economic interests and in accordance with the principle of preferential treatment of nationals; these shall also cover frontier workers. The criteria for allocating residence permits shall be based upon the needs of the employer, the capacity to integrate and the existence of adequate and self-sufficient resources.

4 No international treaty shall be concluded which contravenes these provisions.

5 Legislation shall give further effect to this provision.’

The initiative also provides a transitional period of three years during which international treaties must be renegotiated:

Art. 197 Transitional Measures relating to Article 121a

1 International treaties which are contrary to Article 121a shall be renegotiated and amended within a period of three years from the date of approval of the provision by the people and the cantons.

2 In the event that the laws giving effect to Article 121a have not entered into force within three years of the approval of the provision by the people and the cantons, the federal Council shall adopt provisional measures to give effect to the provision by way of decree.’

However, it remains to be seen whether there will be appetite among the EU institutions and the Member States for a whole-scale renegotiation of the Agreement on the Free Movement of Persons.

The negotiations relating to the current Agreement began not long after the rejection of Swiss participation in the EEA Agreement by a referendum held on 6 December 1992. The no vote in the referendum was swiftly followed by an official request by the Swiss authorities to start negotiations for an agreement on air transport. However, the EU prevailed in tying the conclusion of an agreement on air transport to the negotiation of a further six bilateral agreements covering free movement of persons amongst others. The Agreement on the Free Movement of Persons was eventually signed in 1999 and only entered into force some three years afterwards. This was followed by a transitional period of five years, so that it was only in 2007 that the Agreement finally took full effect.

In any event, regardless of the EU’s willingness to renegotiate the terms of the Agreement on the Free Movement of Persons, the Swiss government does have the option to renounce the Agreement by giving notice to the EU under Article 24. In such a case the Agreement then comes to an end six months after notification of a Swiss withdrawal.

Moreover, the Agreement on the Free Movement of Persons contains a “guillotine” mechanism covering all EU bilateral agreements, so that renunciation of this Agreement automatically triggers the termination of the other six bilateral agreements on air transport, rail and road transport, agriculture, mutual recognition of technical standards affecting goods, government procurement, as well as scientific and technical cooperation (collectively known as “Bilatérales I” in Switzerland). Renunciation of the Agreement on the Free Movement of Persons would therefore have wider far-reaching implications for Switzerland’s relations with the EU.

While a Swiss withdrawal from the Agreement on the Free Movement of Persons does not trigger the automatic termination of the separate agreements on Switzerland’s participation in the Schengen area and the Dublin Regulation signed in 2004 (referred to as “Bilatérales II” by the Swiss), both Switzerland and the Council of the EU also have a right to terminate those agreements (Articles 17 and 16 respectively) . There is a strong possibility this could happen given that the EU appears to consider the Agreement on the Free Movement of Persons as a pre-condition for participation in the Schengen Area, as reflected by the penultimate recital of the agreement concerning Swiss participation in the Schengen area. Renunciation of that agreement by Switzerland would then trigger cancellation of the agreement concerning the Dublin Regulation under Article 16.

The referendum affects an estimated 1.15 million foreign workers in Switzerland or 23% of the Swiss workforce according to EU Commissioner for employment and social affairs László Andor. A further 453,000 Swiss citizens living throughout the EU will also be affected by the popular initiative.

This development strikes a serious blow against the free movement of persons – one of the cornerstones of the European integration process – which is already under challenge from a number of EU governments and will no doubt provide ammunition for those calling for a renegotiation of the EU rules on free movement.

EU citizens and Swiss citizens who have questions about the effects the referendum will have on their personal situation are invited to contact Your Europe Advice for further assistance.

**Postscript**: For a discussion of the implications of the Swiss referendum in both Switzerland and the UK, please visit the EU Law Analysis blog. 

The views expressed on the blog are personal to the authors and should not be seen as constituting legal advice. It should not be relied upon instead of consulting a lawyer or immigration adviser.

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