24 Oct 2016, 04 mins ago

European Union (EU) rights associated with the free movement of persons principle have been the subject of considerable debate recently where particular emphasis has been placed on restricting such movement based on public security grounds.

The free movement of persons is understood as one of the EU’s four ‘fundamental freedoms’ and has developed in a sphere where European mobility and integration is considered a part of a dynamic and harmonised Common Market. Initially the concept was introduced in the 1957 Rome Treaty as part of this mutual market comprising free movement of goods, people, services and capital. The free movement of persons element was extended with the Schengen Agreements, which were signed in 1985, and led to the single external border within the Common Market to become effective in 1993. The concept is moreover linked to European citizenship established to complement national citizenship for all EU nationals. The Court of Justice of the European Union (CJEU) has held that European citizenship gives rise to a right to reside, and in certain circumstances, that right can preclude the expulsion of a third party, namely where the EU citizen would be forced to leave the territory of the EU with that third party (the classic example is where the third party is the sole carer of a child who is an EU citizen).

The free movement of persons principle is also a part of the Agreement on the European Economic Area making the principle effective within the so-called European Economic Area (EEA). The EEA consists of the EU member states, Iceland, Lichtenstein and Norway. Citizens from these countries enjoy certain rights, such as the right to freedom of movement under EU law. Swiss nationals also enjoy these rights following a bilateral agreement between the EU and Switzerland. In essence, free movement of persons covers the right to enter and move about within the territory of another EEA State. The principle also covers the right to stay in another EEA State, to work and live there, under certain conditions, as a worker, as self-employed, as a student, or an EEA national who is medically insured and self sufficient. The main legislation covering the free movement of EEA nationals is EU Directive 2004/38 (the Citizen Directive). In the United Kingdom, EU freedom to enter and reside in the UK is governed by provisions of EU Treaty law, EU secondary law as well as domestic law.

In order for the free movement to run efficiently within the EEA, the applicable rules provide EEA nationals with an easy right to enter a Member State and to stay for up to three months in that state. The Citizen Directive provides that member states shall grant EEA nationals leave to enter their territory with a valid identity card or passport. Derogation from EEA national’s right to enter can be justified if the restriction is based on public policy, public security or public health grounds, and on the personal conduct of the person concerned (general grounds of deterrence do not suffice). The test for expulsion becomes harder for the State to satisfy the longer the individual has been in the Member State. The Citizen Directive specifically provides that member states cannot apply restrictions to the free movement as means to serve economic ends.

In 2013, the CJEU and the EFTA Court delivered judgments covering the issue of restriction to the free movement based on public security grounds and the question of what due process involved. In case CJEU C-300/11 (ZZ v Secretary of State) the Court was faced with a situation where an EU citizen, residing in the United Kingdom, was refused admission when returning from Algeria to the UK. The Secretary of State did not inform the EU citizen of the essence of the grounds upon which it based its decision to restrict free movement, claiming that withholding information was necessary on grounds of national security. Following a request for a preliminary reference by a UK court, the CJEU issued a judgment stipulating that in such a situation the gist of the basis for the restriction of free movement must be communicated to the individual.

In the EFTA Court case E-15/12 (Jan Annfinn Wahl v the Icelandic State), the Court found that restriction on free movement of an EEA national could be based on an assessment of dangerous issued by the Icelandic Police Commissioner. The said assessment linked the arrival of the individual, as a member of the Hells Angels motorcycle group, to a scheduled accession of an Icelandic motorcycle group to join the former organisation.

Restriction on free movement of persons based on public security reasoning is justifiable where:

a) the restriction on freedom of movement is based exclusively on the personal conduct of the individual concerned;
b) this personal conduct represents genuine, present and sufficient serious threat to one of the fundamental interests of society;
c) the ability to challenge the existence and validity of reasons invoked by national authorities is present via effective judicial review;
d) authorities disclose to the individual concerned the essence of the grounds for a decision. This rule may exclude evidence that strictly necessarily needs to be withheld;
e) in cases where evidence is to be withheld, an independent examination by the national courts is carried out, where the state has to prove that national security would be compromised if the individual has access to the withheld evidence;
f) if the state fails to prove that withholding evidence is strictly necessary, but still maintains to withhold this evidence from the individual, the national court is bound to determine the legality of the state’s decision by the evidence available to the individual;
g) any restriction on freedom of movement of persons must comply with the principle of proportionality;
h) limitation to the freedom of movement of persons must be necessary and genuinely meet the objectives of general interests recognised by the European Union.

The free movement of persons has clearly changed the face of Europe and served to benefit many of its citizens. In the current climate, little is heard about the positive aspects of free movement of persons, while much of the debate is focused is on its negative sides, and at times quite unfairly so. This serves to distort the value of this fundamental freedom. Whether we will experience further increase in cases where states will restrict the free movement of persons in future has yet to be seen. Hopefully we will however not be faced with a situation where states use arbitrary means of restricting this fundamental freedom, which essentially has served the EU well, and has the ability to continue to do so.

Hildur Hallgrimsdottir