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2015–2016 United Kingdom renegotiation of European Union membership

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The UK renegotiation of EU membership was a package of changes to EU rules proposed by the Prime Minister of the United Kingdom David Cameron, and agreed to by EU leaders on 19 February 2016.[1] These changes are intended to take effect following a vote for 'remain' in the EU Referendum at which point suitable legislation will be presented by the European Commission.

The changes agreed are legally binding insomuch as the intentions and statements made by the EU leaders are enshrined in an international treaty. The actual implementation of the some of the changes will require legislation or treaty change within the EU and so the details may alter, although it would be hard for the European Commission or the European Parliament to directly defy national governments[2].

Emergency brake

The emergency brake mechanism would allow member countries to limit access to in-work benefits for new EU immigrants. This needs the agreement of the European Parliament and the UK will need the agreement a majority of other governments through approval in the EU's Council[3].

Under current rules EU citizens can ultimately claim most of the same benefits as a UK national. Some of the benefits are subject to a test on Right to Reside[4] for which EU citizens will almost certainly qualify. Most benefits also require Habitual Residence[5] which means that for the most EU Citizens they will have to wait three months before claiming Jobseeker's Allowance, Child benefit or Child tax credit[6][7].

Under the emergency brake EU lawmakers could authorise a country who experiences migrant flows of 'exceptional magnitude' to restrict benefits for new migrants for four years (with migrants starting with no entitlement then gradually gaining rights to benefits). These restrictions could be kept in place for up to seven years[8][9]. In this case 'lawmakers' means the EU Commission putting forward a proposal for approval by the Council. Following approval of the legislation required to enact this emergency brake the UK could request and apply it to migrants reasonably quickly, with the Commission already expressing that they believe the UK would be justified in doing so[10].

The 'Red Card'

The 'red card' allows a member of the Council of the European Union with the support of 15 other members to return a law to the European Parliament for further changes. This is not a veto as EU lawmakers could still go ahead if they judge that they have addressed the concerns raised by the 'red card'[11].

Mr Cameron backed the 'red card' as a means to support the EU's principal of subsidiarity, which he believes is not fully realised[12]. In this way the 'red card' is intended for groups of EU leaders to block or reform EU laws where they think its their job, rather than that of the EU, to make laws on a particular subject. The 'red card' will join the existing 'yellow card' and 'orange card' (which has never been used[13]) that already exist. The use of the 'red card' will require backing of 55% of governments at the Council which is slightly less than is required to approve laws - which is 55% of all countries and votes representing 65% of the EU's population[14].

Deporting EU immigrants

Free movement of people is an important tenant of the European Union and enshrined in primary law in treaties[15]. The EU deal subtly changes the free movement rules to make it easier for countries to deport EU immigrants. This is achieved by 'beefing up' the exceptions to the general rule that EU citizens can live and work where they choose in the EU[16].

National governments have a carefully restricted ability to restrict the free movement of people about the EU[17]. Once a citizen lives in another EU country the threshold of reason for the local government to remove them becomes progressively higher[18]. The changes planned in the EU-deal are subtle changes of wording to permit governments to take in to account where migrants' behaviour is 'likely' to represent a threat, rather than that it 'does'[19], and allows government to take in to more account a person's past behaviour rather than just their present.

Until they are implemented and tested in European Law through the Court of Justice and, possibly, in the European Court of Human Rights, it will be hard to quantify the impact of these changes. The consensus from the EU leadership is that they will give nations more power to deport criminals and prevent their return[20] but not necessarily restrict movement for other reasons.

Child benefit

The deal makes no changes to the principle that child benefit should be paid to citizens no matter where their children reside. However following the deal governments will be able to adjust the payment they make to reflect the standard of living in the country the child lives and the amount of child benefit that would normally be paid in that country[21].

Although many people have questioned the idea of paying child benefit for children living in other countries[22], it is a logical consequence of the EU's principal of non-discrimination - as migrants are more likely to have children in another country and would therefore be discriminated against by restricting those benefits[23]. Once the changes to law were passed to reflect this agreed change it would be up to the Court of Justice to clarify if it is legal or there are any unintended consequences if it was subsequently challenged.

'Ever closer union'

In the EU deal there is a statement specifically exempting the UK from 'ever closer union.' The precise phrasing of the aspiration, which was in the preamble of the EU's founding treaty[24] and every one since is "ever closer union of the peoples [of Europe]". Although the phrase has symbolic political impact there is little or no legal effect of the phrase in the treaties or the UK's exemption[25]. However, just because there is no specific legal power of the declaration, it may still provide reassurance and the fact that the deal is explicit in saying the presence of the 'ever closer union' phrase does not grant the EU any specific competences or powers may be referred to in future[26].

The UK and the Eurozone

The EU deal attempts to reassure non-Eurozone countries including the UK, that decisions will not be made favouring Eurozone members over them. There will now be a system for non-Eurozone members to object to laws being passed that might harm them but it will not give them a legal opt-out. However EU law already bans discrimination so this is merely an additional protection[27].

Along with Denmark the UK has an opt out to the 1992 Maastricht Treaty which means they are not obliged to join the Euro.

Prior to this EU deal there was concern[28] that Eurozone members may discuss matters of the EU and single market separate to the wider membership and therefore come up with a deal they could impose on non-Eurozone countries. In the Council, Eurozone members would have sufficient majority to pass laws if they wished, although those laws would need to be proposed and drafter by the Commission first and also approved by the European Parliament.

In addition to specifically banning such discrimination it also contains a statement of intent that any measures for 'economic and monetary union' will be voluntary for non-Eurozone countries, and that those countries will not stand in the way of such measures for those in the Eurozone.

Limiting residence rights for family members

The European Parliament intends[29] to bring forward legislation to change EU law to limit the ability of a non-EU national to gain the right to live and work anywhere in the EU (including the UK) by becoming the spouse of an EU citizen. There has been some back-and-forth on the matter in the Court of Justice with existing laws being inconclusive[30]. This change to the law, if approved, should clarify the matter[31]. The changes to the law could still be challenged in the both the Court of Justice and the European Court of Human Rights which is separate to any EU institutions.

This change in law is not intended to deal with deliberate abuses of the immigration policy (sham marriages) for which existing tools exist[32].

Is it legally binding?

The EU deal is International Law as it was made by European heads of government acting outside the structure of the EU. The UK intends to register it as such[33]. This means that statements and intentions made within it cannot be challenged by the Court of Justice. However, certain aspects of it will need treaty change within the EU in order to actually make anything happen and where anything could conflict with EU law, it could be challenged[34].

Although certain elements will need legislation to become part of EU law, it is unlikely they will be prevented from doing so as the Commission has already indicated its intention to bring these to the EU Council and Parliament for passage[35]. The Council is unlikely to object to the passage of the laws (as they are representatives of the same governments that agreed it). The European Parliament will also need to approve the laws.

Once passed some of the laws are likely to be tested in law if a claimant brings a legal challenge, although this could be some years away. The European Court of Justice would then decide if the changes were legal under the EU treaties. Most of them are classed as being at 'low' or 'low to medium' risk of being overturned but there may be more risk to the emergency brake[36].

The main legal text of the EU-deal is called the 'Decision of the Heads of State or Government'.

[37][38] Further approval needed from Will it stick?
EU Commission EU Council EU parliament What will it take? Legally binding? Reversible by other EU countries?
'Ever closer union" Remain vote (and new EU treaty to fulfil promise) International law No
'Red card' Remain vote International law No
Protection for non-eurozone countries Yes Remain vote and rules changed EU law Yes
Child benefit Yes Yes Yes Law tabled and passed EU law Yes
Bringing family to the EU Yes Yes Yes Law tabled and passed EU law Yes
Free movement Yes Yes Yes Law tabled and passed EU law Yes
'Emergency brake' Yes Yes Yes Law tabled and passed EU law Yes


References

  1. ^ General Secretariat of the Council (2016-02-19). "European Council meeting (18 and 19 February 2016) – Conclusions". European Council.
  2. ^ Steve Peers (2016-02-02). "The draft renegotiation deal: EU immigration issues".
  3. ^ Eleanor Spaventa (2016-02-22). "Explaining the EU deal: the 'emergency brake'". fullfact.org.
  4. ^ Dept for Work and Pensions (2014-11-12). "Right to reside". gov.uk. UK Government.
  5. ^ Dept for Work and Pensions (2014-07-11). "Freedom of Information request 3160/2014" (PDF). UK Government.
  6. ^ Dept for Work and Pensions (2013-12-13). "Improved benefit test for migrants launched". UK Government.
  7. ^ Dept of Work and Pensions (2014-04-08). "Further curbs to migrant access to benefits announced". UK Government.
  8. ^ General Secretariat of the Council (2016-02-19). "European Council meeting (18 and 19 February 2016) – Conclusions". European Council.
  9. ^ Eleanor Spaventa (2016-02-22). "Explaining the EU deal: the 'emergency brake'". fullfact.org.
  10. ^ General Secretariat of the Council (2016-02-19). "European Council meeting (18 and 19 February 2016) – Conclusions". European Council.
  11. ^ Derrick Wyatt QC (2016-02-22). "Explaining the EU deal: the 'red card'". fullfact.org.
  12. ^ Prof Catherine Barnard (2016-02-17). "Cameron's subsidiarity battle". The UK in a Changing Europe.
  13. ^ "The Subsidiarity Control Mechanism". European Commission. 2015-06-23.
  14. ^ Vaughne Miller (2013-05-13). "Voting Behaviour in the EU Council" (PDF). House of Commons Library.
  15. ^ "EU treaties". European Union.
  16. ^ Catherine Barnard (2016-02-22). "Explaining the EU deal: deporting EU immigrants". fullfact.org.
  17. ^ "DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL". Official Journal of the European Union. 2009-04-29.
  18. ^ Catherine Barnard (2016-02-22). "Explaining the EU deal: deporting EU immigrants". fullfact.org.
  19. ^ General Secretariat of the Council (2016-02-19). "European Council meeting (18 and 19 February 2016) – Conclusions". European Council.
  20. ^ David Cameron, Prime Minister (2015-11-10). "A NEW SETTLEMENT FOR THE UNITED KINGDOM IN A REFORMED EUROPEAN UNION" (PDF). 10 Downing Street.
  21. ^ Charlotte O’Brien (2016-02-22). "Explaining the EU deal: child benefit". fullfact.org.
  22. ^ Eleanor Mills; Jack Grimston (2014-01-12). "Ban migrant welfare for two years — Duncan Smith". Sunday Times.
  23. ^ Charlotte O’Brien (2016-02-22). "Explaining the EU deal: child benefit". fullfact.org.
  24. ^ "Treaty Establishing the European Community" (PDF). European Community. 1957-03-25.
  25. ^ Sionaidh Douglas-Scott (2016-03-05). "Explaining the EU deal: an "ever closer union"". fullfact.org.
  26. ^ "Draft Decision of the Heads of State or Government, meeting within the European Council, concerning a New Settlement for the United Kingdom within the European Union". European Council. 2016-02-02.
  27. ^ Paul Craig (2016-02-22). "Explaining the EU deal: the UK and the eurozone". fullfact.org.
  28. ^ David Cameron, Prime Minister (2015-11-10). "A NEW SETTLEMENT FOR THE UNITED KINGDOM IN A REFORMED EUROPEAN UNION" (PDF). 10 Downing Street.
  29. ^ "Draft declaration of the European Commission on issues related to the abuse of the right of free movement of persons". European Council. 2016-02-02.
  30. ^ "Right of Union citizens and their family members to move and reside freely in the territory of a Member State – Family members who are nationals of non-member countries – Nationals of non-member countries who entered the host Member State before becoming spouses of Union citizens". European Court of Justice. 2008-07-25.
  31. ^ General Secretariat of the Council (2016-02-19). "European Council meeting (18 and 19 February 2016) – Conclusions". European Council.
  32. ^ "Helping national authorities fight abuses of the right to free movement: Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens" (PDF). European Commission. 2014-09-26.
  33. ^ "Oral Answers to Questions". 2016-02-03.
  34. ^ Steve Peers (2016-02-24). "Explaining the EU deal: is it legally binding?". fullfact.org.
  35. ^ "Draft declaration of the European Commission on the Safeguard Mechanism referred to in paragraph 2(b) of Section D of the Decision of the Heads of State or Government, meeting within the European Council, concerning a new settlement for the United Kingdom within the European Union". European Council. 2016-02-02.
  36. ^ Steve Peers (2016-02-24). "Explaining the EU deal: is it legally binding?". fullfact.org.
  37. ^ "Explaining the EU deal: is it legally binding?". Full Fact. Retrieved 2016-05-14.
  38. ^ "EU Law Analysis: The final UK/EU renegotiation deal: legal status and legal effect". eulawanalysis.blogspot.co.uk. Retrieved 2016-05-14.
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