EU Treaty Rights
Free movement of persons as provided in the Treaty of Rome 1957 has evolved into a wider range of related rights under the various amending treaties since that time. There is a right of free movement for workers to come and work in a host EU state. There is a right of establishment for persons to come and work on a self-employed basis in another EU host state.
Workers and self-employed persons who establish business must not be subjected to discrimination on the basis of nationality. They must enjoy the same treatment as a comparable national in the same situation.
Under the European Union Treaty, directly discriminatory provisions are unlawful unless they can be justified on relatively narrow grounds of public policy, public health and security. Indirectly discriminatory provisions which are those which are discriminatory in effect or which hinder the free movement of persons are deemed invalid unless there is a legitimate objective, justifiable reason.
Over time, the original Treaty rights to the free movement of persons to come to the host state to work have been extended by amendments to the Treaty, EU Regulations and Directives and interpretation of Treaty rights by the Court of Justice of the European Union.
In the 1990s, the right to reside was extended to retired persons, students and those with independent means. Non-economically active persons must have sufficient means of support and medical insurance.
The European Court of Justice has expanded the concept of “free movement” through its case law. The European Court has held that the social benefits include access to measures of the financial nature intends to facilitate access to employment in the labour market. Although “social assistance” is excluded, the European courts have interpreted the concept narrowly distinguishing it from benefits of a financial nature, which were intended to facilitate access to the labour market. It was held to extend to elements of UK job seekers allowance, which were was a social benefit in so far as they might be on mere social assistance.
Workers retain their status as such while they are looking for work after termination of employment at least for a period while they continue to seek employment and have a genuine chance of being engaged. This right includes access to vocational training and grants to some extent.
The Maastricht Treaty introduced the concept of EU citizenship in 1993. The Citizens’ Rights Directive provides that all EU citizens with a valid identity card or passport and their EU and non-EU family members, including spouses, registered partners, dependent descendants and ascendants, have the right to travel to another EU state.
Each EU state must grant all EU citizens holding a valid identity or passport and their family members the right to enter.No entry visa can be required. All EU citizens and their EU family members have a right of residence for up to three months without any conditions other than holding a valid identity card or passport.
All EU citizens have a right of residence in another member state for longer than three months if they meet any of the following conditions:
- they are employed or self-employed;
- they are economically inactive but have sufficient resources for themselves and their family not to become a burden on the social assistance system of the host member state, and have comprehensive sickness insurance cover;
- they are accredited students and have sufficient resources for themselves and their family not to become a burden on the social assistance system of the host state, and have comprehensive sickness insurance.
The rights to extend to non EU family members of EU citizens who meet these conditions.
There is a common EU visa scheme to which both Ireland and UK are not a party at present. It provides the broad criteria in relation to visas on economic, personal and other bases.
EU citizens have a right of permanent residence after five continuous years’ residence in the host state while exercising that above treaty rights during that time. This right of permanent residence applies to both EU and non-EU family members of EU citizens who have resided for this period. Once these rights are acquired, they may only be lost by absence from the host state for more than two consecutive years. Certain temporary absences do not affect the rights.
Persons exercising EU rights are entitled to be treated equally with nationals of the host state. The host state is not obliged to grant social assistance to economically inactive persons or students during the first three months of their stay.
The right to expel on the grounds of public policy, public security and public health must not be invoked as a disguised legitimate ground, where the real grounds involved are economic. There must be a reasoned individualised decision referable to a genuine present and sufficiently serious threat affecting one of the limited grounds of exception.
Freedom of movement has been extended to residents of the European Economic Area. This is the European Union together with including Iceland, Norway and Lichtenstein. Most of the freedoms also apply to Switzerland under separate arrangements.