The EU single market in labour and migration

by George Hatjoullis

There is a great deal of misunderstanding on the issue of free movement of labour within the EU. It is a wilful misunderstanding perpetrated by those that have an interest in using the latent xenophobia in all populations to achieve their political aims. Facts and arguments tend not have much influence on issues of xenophobia. It is, as the term implies, a social condition rooted in the psychology of identity. People tend to believe whatever makes their xenophobia justifiable. Unfortunately the forthcoming debate on whether the UK should stay in or come out of the EU is rooted in xenophobia. There needs to be a strategy for keeping the facts at the forefront of the debate and eroding the seductive nature of xenophobia. First a little digression into social psychology.

The host population often has a need to feel more privileged than newcomers. This need has to do with how the host population forms its social identity. It is not inevitable and there have been cultures that have not exhibited this trait. However, since the rise of the nation state and nationalism, this has been an ever present characteristic of host populations. The single market has created problems within the EU because it has not allowed for this national characteristic. It does not afflict all populations equally not does it affect all within a population to the same extent. It depends on how the individual forms social identity. The young upwardly mobile professional that may travel extensively and work abroad may have a very different perspective to that of an immobile poorly educated worker that has only ever travelled abroad to lay on a beach or drink cheap alcohol and would never imagine themselves working abroad as they can barely speak their own language let alone anyone else’s. Even this caricature is not accurate (recall ‘Auf Wiedersehen Pet“). The point is if a significant part of the host population has a need to feel privileged there will be resistance to the single market in labour, and political consequences.

The single market in labour does not in itself generate immigration into the UK. This is not simply a semantic issue. Immigration is a permanent change of residence usually involving (eventually) a change of citizenship. The single market does not require host member states to grant citizenship to EU citizens. This is a matter for the host member state. Nor are EU workers necessarily travelling to work abroad as a permanent change of residence. The point of the single market is that labour can move freely to where there is demand and then move freely back again or somewhere else. The point is to create labour mobility. Some will choose to stay and settle (see below on the right of permanent residence*) in other member states and some from those member states will choose to live elsewhere. The countries that are net recipients of workers for sustained periods are those with successful economies and an excess demand for labour. This has been the UK experience since 2010 but need not be the UK experience for always and nor has it always been the UK experience (Auf Wiedersehen Pet again).

The idea that the single market automatically exposes the UK to net immigration for ever is patently false. If economic conditions change then the UK could experience net outflows of workers. UK nationals might go to work abroad and EU citizens could return to their home countries or other growing EU states. In contrast, if someone has come to the UK from  Commonwealth country (as UKip seem to favour) then the move is likely to be permanent and involve a change in citizenship. In the long run the UK could, in principle, experience greater immigration outside of the EU than within it. The difference is of course in control. Outside of the EU the UK can control migration. It can use any system it chooses to determine immigration. It can clearly privilege the host community over newcomers and fulfil this need. Of course, it also limits the host community in its ability to travel and work abroad.

The perception is that the single market requires that any EU citizen coming to the UK to seek work has the same privileges as a UK citizen. This is not really true and if people would just look they will see it is not ( EU citizens have a right to move to another country to look for work. You have 6 months to find work. However,

…during your stay as jobseeker, you don’t have a right to non-contributory welfare benefits.

Ask anyone in the street and they will be unaware of this. The common view is that you can just turn up and start claiming benefits. There is no EU requirement. Go to the website and read for yourself if you do not believe me. If after 6 months you have not found a job:

…the national authorities can assess your right to stay.

For this, they will want evidence that you:

  • are actively looking for a job and
  • have good chances of finding one.

You can be asked to leave. The single market confers some rights of free movement to work but they hardly unconditional. Moreover, you cannot just turn up and start claiming benefits. EU labour movement is about finding work.

If you have worked in the UK and lose your job your situation rather depends on how long you have been here:

If you had a permanent contract or a fixed-term contract for less than 1 year and you lost your job before the end of the one-year period, you have the right to live there for at least another 6 months, provided you are looking for work. The 6-month period will start from the moment your work contract ended.

You must register with the employment services as involuntarily unemployed and look for work.

If you do not find work then you can be asked to leave.

If you have worked continuously for more than one year:

If you lose your job after working in your new country for more than 1 year, you have the right to continue to live there, provided you are registered as a jobseeker and continue to meet the conditions to count as a jobseeker.

To keep the right to stay in your host country when you lose your job or are not professionally active (self-employed), you must register as looking for work with the employment office in your new country.

You can stay as long as you are registered as a jobseeker with the employment service and continue to meet the conditions to count as a jobseeker.


Equal treatment

During the time you’re allowed to stay in your host country after being employed there and then becoming involuntarily unemployed (see above), you should continue to enjoy the same rights as nationals of that country (welfare benefits, access to employment, pay, benefits to facilitate access to work,etc.)

Herein lies the privilege issue. Once you have worked here you move on to the same footing as nationals with respect to rights and benefits and if you have worked for longer than one year you have a right residency as long as you can demonstrate that you are looking for work. It is in this area that David Cameron sought to ‘renegotiate’ on behalf of the UK. Did he succeed? Cameron needed to re-establish host privilege in the mind of the population. He has achieved an ’emergency brake’ on in-work benefits for EU citizens coming to work in the UK and some reduction in the payment of child benefit to children not resident in the UK. Some element of host privilege has been established. For some it will not be enough. Nothing short of complete control of borders will do. For others it may just move them off the fence.

*Right of permanent residence

Union citizens acquire the right of permanent residence in the host Member State after a five-year period of uninterrupted legal residence, provided that an expulsion decision has not been enforced against them. This right of permanent residence is no longer subject to any conditions. The same rule applies to family members who are not nationals of a Member State and who have lived with a Union citizen for five years. The right of permanent residence is lost only in the event of more than two successive years’ absence from the host Member State.

Union citizens who so request receive a document certifying their right to permanent residence. The Member States issue to third country family members permanent residence permits which are valid indefinitely and renewable automatically every ten years no later than six months after the application is made. Citizens can use any form of evidence generally accepted in the host Member State to prove that they have been continuously resident.