‘My government will bring forward a bill that further reforms Britain’s immigration system. The bill will ensure that this country attracts people who will contribute and deters those who will not.’
Every government in the post-WWII period has promised to reform the immigration system. Fortunately words have been chosen carefully – none promise to improve it. In times past, governments have tried to gain support for stricter immigration controls with a ‘sweetener’, usually in the form of simultaneous promises to improve integration. This trend is visible in the Queens Speech of May 8th, but the tone is quite different: previously, equality was promoted as a right; for the Coalition ‘fairness’ is a reward for those who ‘work hard’. In short, the Coalition ‘is committed to a fairer society where aspiration and responsibility are rewarded.’
Yet this fair treatment does not extend to immigrants who the Coalition plan to subject to further unfair treatment at the hands of private landlords. The intention is to impose upon landlords a requirement to check the immigration status of tenants or face heavy fines. It is not clear which of the above reform goals this is designed to address: it seems to be a general measure to disseminate throughout society a message of ‘crimmigration’ – the criminalization of immigration whereby those who cross borders are per se regarded as a security threat and subjected to constant policing and monitoring.
Many have already questioned how this duty will work, given that there is no current register of the millions of private landlords in the country. Why should they make the effort to comply, even with the threat of fines? In order to make such sanctions effective they will have to be closely enforced; surely it will undermine the Conservative goal of reducing ‘red tape’ to introduce the necessary enforcement regime? Furthermore, given that discrimination on the grounds of nationality has been prohibited under EU law since 1957, can the government introduce a measure which explicitly targets non-nationals, including those arriving from the European Union?
This question can also be asked of the other reform proposals announced as the ‘tough’ and ‘new’ measures to reform Britain’s immigration laws. These were presented as the centerpiece of the Queens Speech, perhaps unfortunate positioning as this flagship policy is already beset with so many problems that it may ultimately turn into a symbol for the flagging ship that the Coalition – most recently unable to agree on child-care ratios – seems to have become. In particular, of the four reforms listed above, the plans to limit access to social services and deport foreign nationals are also likely to breach of EU law. These will also be considered below.
Under the plans, if I see an advert for a flat in the newspaper and contact the landlord, the landlord will be obliged to check that I am lawfully present in Britain. A basic question immediately arises: how will the landlord know who to ask? How will the landlord differentiate white Britons from white Union citizens – will accent be used as a guide? Also, it does not require a wild leap of imagination to think that landlords may use skin colour as a proxy for immigration status. If they do so, black Britons and black Union citizens will likely be disproportionately checked making this rule will indirectly discriminatory under both national and EU race equality law.
Moreover, it is highly probable that such a duty will also be contrary to free movement of workers under EU law. Non-discrimination on the grounds of nationality in relation to housing is covered by Article 9 of Regulation 1612/68 on the rights of migrant EU workers and their families, which states that
A worker who is a national of a Member State and who is employed in the territory of another Member State shall enjoy all the rights and benefits accorded to national workers in matters of housing, including ownership of the housing he needs.
In order to avoid breaching this, national law will have to require the landlord to ask all workers to prove their immigration status, including British citizens. As the majority of workers in Britain rent on the private housing market, almost everybody will have to be checked. Has George Orwell’s 1984 arrived?
What about access to healthcare? Apparently, access to public services by ‘temporary’ migrants will be ‘regulated to ensure those accessing the NHS and other services are making a contribution’. It is not clear who is meant by a ‘temporary’ migrant. It is thought that this measure is intended to tackle ‘health tourism’ where people travel from other countries to take up the free service offered by the NHS. However, medical services are already available to people travelling temporarily to Britain from the EU under the E111, which provides access to emergency health care during a temporary stay. The only other groups of EU migrants that might be affected are seasonal workers, cross border commuters or those intending to provide a temporary service as per Article 46 TFEU – yet again, under EU law the economically active status of these groups will secure them access to the NHS. Beyond this, the CJEU has used case law (e.g. C 158/96 Kohll; C 157/99 Geraets-Smits; C385/99 Muller-Faure; C372/04 Yvonne Watts) to develop a right for EU citizens and workers to access medical services in any member state, including that provided free of charge, if this is not available in their own member state. Who then will this new regulation apply to? It will mainly affect those coming from countries beyond the EU in Africa, Asia, Australisia and the Americas, who already have limited access to the NHS under increasingly inhuman immigration rules. It is therefore questionable whether this will be a useful reform.
The Bill announced in the Queens Speech also promised to introduce measures to make clear that foreign national offenders shall be deported, except in extraordinary circumstances. No further detail is given but this too will be hard to activate against the majority of migrants from the EU. Under EU law, deportation of a Union citizen, EU migrant worker or family member is an exception not the norm. In fact, deportation is a derogation from the free movement rules and as such is both narrowly defined and interpreted by the CJEU.
The national regulatory authority is set out very clearly in Chapter VI of the Citizenship Directive, which begins with a reminder that any restriction on the freedom of movement and residence of Union citizens and their family members ‘shall not be invoked to serve economic ends.’ In particular, exclusion measures ‘taken on grounds of public policy or public security shall comply with the principle of proportionality’ – this means that they must serve a legitimate aim and be both appropriate and necessary to achieve that end. A glance at the recent cases on age discrimination shows how closely the CJEU conducts this test.
In addition, according to Article 27 of the Directive the measures ‘shall be based exclusively on the personal conduct of the individual concerned’ and this conduct
‘must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.’
In particular ‘previous criminal convictions shall not in themselves constitute grounds for taking such measures’ – this seems fatal to this reform plan. It appears that the very premise of this headline-grabbing goal conflicts with EU law. It is hard to see how a blanket policy of deportation of foreign offenders can be lawful taking these agreed Union obligations into account.
Furthermore, the Directive clearly states that national authorities may not adopt a blanket position: any expulsion decision must be preceded by careful consideration of individual circumstance including ‘how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.’ Case law has shown that the CJEU carefully reviews these provisions and ensures that where deportation is sought, the decision-making procedures and the possibility for appeal are clear and transparent.
A Bill will not appear until August, making it hard to know precisely what is planned but initial indications are not promising. The main problem with the proposals discussed above is that they are premised upon nationality – the highest number of non-nationals arrive from other parts of the EU; these migrants are protected under EU law from discrimination on the basis of nationality. If entrenched in legislation, it is therefore doubtful that these reforms will resolve any of the major issues emanating from EU migration. The reforms will predominantly pinch upon the rights of the usual victims – migrants from the global South fleeing conflict, under-development and poverty.
Reflecting upon these proposals, it is hard not to wonder whether Ministers in the Coalition government are simply in denial about the impact of EU law. EU law does not preclude national immigration rules but removes certain discriminatory options by requiring controls to be formulated with the interests of non-nationals in mind. It has been this way for a while now. Ministers need to face up to this reality – at least while Britain is still in the EU. They should also take the government’s austerity message to heart: every day of denial costs the tax-payer in delayed decision-making and potential heavy fines from infringement proceedings in Luxembourg.
 For more on the precarious situation of temporary migrants see http://www.rawstory.com/rs/2013/03/28/temporary-and-migrant-workers-face-systemic-problem-of-workplace-dangers/
 See http://europa.eu/youreurope/citizens/work/index_en.htm on rights tto receive medical treatment abroad.