EU Law and Free Movement: Rights of Individuals in the UK Context

This assignment addresses the free movement rights of individuals in the UK under EU law, focusing on the cases of Bernadette, David, Stijn, and Katya. It examines relevant EU treaties, directives, and court cases, including the Treaty of Rome, the Schengen Agreement, and the Schengen Borders Code. The analysis covers the rights of EU citizens and their family members regarding entry, residence, and employment, along with exceptions and limitations to these rights. The assignment explores various aspects of free movement, such as the rights of workers, students, and family members, emphasizing the principle of non-discrimination and equal treatment. It also addresses the exceptions related to protecting public order, safety, and health. The conclusion provides advice to the individuals based on their circumstances, referencing the specific rights they possess and the conditions they must meet to exercise those rights fully. The paper meticulously analyzes the legal framework, providing a comprehensive understanding of the subject matter.

European Union law
Student’s Name
Institution
Date

Part 1: Advise Bernadette, David, Stijn and Katya how EU Law relates to their free
movement rights
Issue
The issue is whether the treatment that Bernadette, David and Stijn and Katya receives in UK is
justifiable as per the EU law.
Law
The issues faced by Bernadette, David and Stijn and Katya can be addressed using a number of
court cases, treaties and directives. These include Rome The Treaty Establishing the European
Economic Community, Treaty of Amsterdam, the Schengen Agreement and the Dublin
Agreement and The Schengen Borders Code.
Application
First, according to European economic integration, EU welcomes immigrants from the
EU. The analysis of the article covers the enforcement practice of the European Court, the
national legislation of Great Britain, France and Germany, as well as its application on the issues
of freedom of movement of persons. Separately, the grounds for restricting the right to freedom
of movement to protect the external order are examined, public safety, state interests; in relation
to persons employed in public office; to protect the health of the population of the European
Union. Particular attention is paid to the specifics of the protection of certain rights and freedoms
of individuals who exercise their right to freedom of movement within the European Union.
On March 25, 1957 in Rome The Treaty Establishing the European Economic
Community, Part 2, Chapter 3, Chapter 1 clearly stipulates the principle of the free movement of

European Commission personnel: on the one hand, the Treaty stipulates that "the freedom of
movement of workers shall be guaranteed within the Community"; on the other hand, the Treaty
on the principle of national treatment for the free movement of personnel was clarified1.
Compared with the Treaty Establishing the European Coal and Steel Community, this treaty has
made great progress. First, although the object of free movement of people is still very limited, it
is no longer only targeted at coal and steel workers, but also other workers, and has taken a step
towards the free movement of all citizens of the European Community. Second, in order to
promote the movement of natural persons, the EU has adopted a series of safeguard measures,
including the establishment of a social insurance system for migrant workers, unified legal
guarantees, the European Social Fund to provide material security for workers, and so on. These
conditions provide more effective ways and basis for the free movement of natural persons in the
EU.
The principle of transparency of internal borders was originally established in the
Convention on the Application of the Schengen Agreement (Schengen Convention) of 1990, and
is currently enshrined in the Schengen Borders Code of 2006: “Internal borders can be crossed
anywhere without border checks on individuals regardless of their citizenship ”(Article 20“
Crossing of internal borders ”of the Schengen Borders Code)2. As an exception, Member States
are allowed to re-establish border controls, but only if and for the duration of the “serious threat
to public order or internal security” (Art. 23 “Temporary restoration of border control at internal
borders” of the Schengen Borders Code). In practice, such a measure is rarely used, usually to
prevent a terrorist threat during major international events, such as the World Cups or European
Football Championships. The Schengen Borders Code, like the previous Schengen Convention,
1 Treaty of Rome
2 Schengen Borders Code

also does not prohibit Member States from exercising police control within their territory,
including in the form of checking passports, visas and other documents certifying the legality of
stay of foreign citizens. According to paragraph 1 of Art. 21 “Internal checks” of the Schengen
Borders Code abolishing border controls at internal borders does not prejudice “the exercise of
police powers by the competent authorities of the Member States under national law” - but only
“to the extent that the exercise of these powers is not tantamount to the exercise of border
checks. " The last phrase was not accidentally included by the legislator in the text of the
Schengen Borders Code.
It aims to prevent abuses by national authorities that may try to restore de facto border
control by conducting it not on the border itself, but near it (in the border zone). Thus, for
example, French police can stop in order to verify the documents of people on the streets of
Paris, Marseille, other cities and villages of France. If such checks are regularly carried out in the
country's border zone, then they are tantamount to border control and are illegal from the point of
view of EU law. It is a similar interpretation of Art. 21 of the Schengen Borders Code was given
by the EU Court in 2010.
In a decision on the Adele and Melki case of June 22, 2010, the EU Court declared the
provisions of the French Code of Criminal Procedure, which authorized the national police to
check the 20- kilometer zone along the borders with other Member States, documents of any
person "regardless of his behavior and special circumstances indicating a risk to public order3
3 Aziz Melki (C-188/10), Sélim Abdeli (C-189/10)

From the above-mentioned legal system of free movement of natural persons in the
European Union, it can be seen that the current system of free movement of natural persons in
the European Union has the following characteristics:
First, the "natural person", as the subject of free movement, has become more extensive. In
the beginning, the only free-flowing subject was "employees". According to the European Court
of Justice's interpretation of the Levin case, no matter what the purpose of the employment, as
long as they are engaged in "real and effective" work, natural persons are considered to have the
right to free movement. Part-time workers, community workers who receive small amounts of
necessary material compensation, and looking for workers in a member state can all be called
employees. Later, "employees' children and spouses" also enjoyed a certain right of freedom of
movement due to the economic relations of the subject, and independent student status could also
secure EU residency for natural persons. After the EU treaty was officially implemented, the
issue of immigration of non-EC citizens was gradually included in the category of free
movement.
Second, the rights enjoyed by natural persons in the process of free movement have become
increasingly abundant. Freedom of travel, right of entry and residence, right to education are the
most basic rights, and in addition to the provisions of Article 19 of the Amsterdam Treaty, EU
citizens, regardless of their nationality, enjoy elections in local and European parliaments within
their member states And the right to be elected4.
Third, when limited legal provisions are insufficient to define the relevant concepts, most of
them rely on the jurisprudence of the European Court of Justice to clarify their meaning. For
example, in the Antonissen case5, regarding whether a Belgian can enjoy the right of "quasi-
4 Article 19 of the Amsterdam Treaty
5 The Queen v. The Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen

employee" when seeking employment in the United Kingdom, the European Court of Justice
reviewed the provisions of Article 48 of the EU Treaty and concluded that The interpretation of
the articles would hinder the achievement of this purpose. The court concluded that the rights
explicitly listed in article 48 were incomplete. This open-ended understanding gives the court
more power to adjust or even expand the scope of the clause through interpretation in accordance
with changes in the community's social, economic and political climate. Fourth, the EC's system
of free movement of natural persons is implemented in stages. According to Article 48 of the
Community Treaty: "At the end of the transition period, the free movement of workers shall be
guaranteed within the Community"6. The second phase runs from May 1964 to June 1968, and
the permit system continues to be implemented.
However, Bernadette, David, Stijn and Katya should know that there are certain
exceptions related to right to free movement of natural persons. Such as Directive 68/360 on the
right to land and residency, Directive 64/221 on anti-discrimination and exceptions, Regulation
1612/68 on the substantive right of workers to move freely, and Regulation 1251 on the right to
stay / Regulation 70. Specifically, the free movement of EU workers and their families has the
following rights:
First, right to enter and stay. In the EU member states, the right of entry refers to the right
to cross borders and move freely within the territory of the member states, regardless of entry or
departure, as long as they present valid documents. Council of Ministers Directive 68/360 and
Directive 73/148 stipulate this right: "After presenting a valid identity card and passport, member
states must grant (the citizens of other member states) the right to enter their territory." After the
entry into force of the Schengen Agreement in 1990, the border controls between the contracting
6 Article 48 of the Community Treaty

states were further abolished, and the verification of personnel in the internal border areas
between the contracting states was abolished. Citizens in the member states only need an identity
card to enter another country. In addition, Council Rule 1612/68 specifically specifies the right
of entry, and the European Court of Justice has also leniently explained this right, stating that the
right of entry refers not only to the acceptance of an offer of employment, but also to the search
for employment; The right to leave also includes the right to enter in other member states. In this
way, migrants enter another Member State to find work, and can stay for a reasonable period of
time to determine their employment opportunities.
Second, is the right to freedom of movement and settlement. According to Article 4 (2) of
Council of Ministers Directive 68/360, workers have the right to a residence permit7. Whether
they are citizens of member states or not, the families of workers also have the right to settle. The
right of settlement is a fundamental right, and only the treaty provisions themselves, not
subsidiary legislation, can be deprived. Although it is not that a residence permit is required to
prove that the person has the right of residence in this country, the residence permit is a form of
declaration with one exception: if the worker stays within 3 months, the entry permit is satisfied
Residence requirements do not require a residence permit. The member states must approve the
right of residence and issue a residence permit after the required documents are presented by the
migrants. The residence permit application process does not require the finding of a job as a
prerequisite. Moreover, the authorities cannot confirm that the workers are ill after being
confirmed by the employment department. Or accidentally temporarily unable to hire or no
longer employed due to passive unemployment to recover a valid residence permit. The issuance
and replacement of the residence permit should be free of charge. A complete settlement permit
for personnel should be valid for at least five years and can be automatically extended, which
7 Article 4 (2) of Council of Ministers Directive 68/360

means the right to settle indefinitely, unless this right is suspended . The host country should
grant permanent residency to persons who have reached retirement age or are otherwise
incapacitated.
Lastly, there is right to education. The right to education includes three aspects, namely
the right to education of workers, children of workers, and students. First, workers' right to
education is mainly reflected in vocational training. Article 12 of Regulation 1612/68 states that
"Children of citizens of other member states employed or formerly employed in the territory of a
member state, if already resident in that state, have the right to receive basic education on the
same conditions as citizens of that state , Apprenticeship and vocational training. " Their rights to
receive educational assistance (bursaries and similar aids) are in accordance with the law, even if
the parents of the workers have returned to their home country and the children are forced to stay
in the immigrant country and complete their studies there due to incompatibility of the education
system. Provisions should also be protected; third, students' right to education. Previously, the
European Court of Justice educated students in other member states.
Conclusion
First, Bernadette has right to claim for more pay because she is supposed to receive fair
payment like the British residence. Second, Katya has the rights to receive child benefits even
though he is not the UK citizen because different treaties and agreements explored above gives
him rights like natural citizen.
Part 2
Issue

What should Bernadette do about the Court of Appeal’s decision not to refer a question to the
Court of Justice of the European Union?
Law
The issue faced by Bernadette can be addressed by the provisions found in the Single European
Act of 1986, The 1992 European Union Treaty, Part 2, Article 8 (1), Treaty of Amsterdam, the
Schengen Agreement and the Dublin Agreement. In addition, Article 12 of the EC Treaty help
address issue of discrimination.
Application
The Single European Act of 1986 is a landmark legal document that is considered to be about the
establishment of an internal big market. The 1992 European Union Treaty, Part 2, Article 8 (1)
also emphasizes that "EU citizens have the right to move and reside freely in the territories of the
member states." The treaty provides a further step towards the free movement of natural persons.
The basis of international law: First, the scope of the subject of free movement has been further
expanded. For example, by encouraging the academic recognition of diplomas and academic
systems to support the movement of students and teachers; not only that, the most obvious
change between this treaty and the previous series of legal provisions, that is, the expression of
"union citizens", the subject of free movement of personnel The scope has risen to a political
level, and it is no longer a movement of workers in the purely economic field, but the citizenship
of each member state has been given the status of a union citizen, thereby politicizing this right;
second, free movement begins to involve labor Family members8. The European Union Treaty
provides for the free movement of people as a result of family reunification. Third, this Treaty
8 R v. Secretary of State for the Home Department, Ex parte Soblen, [1963] 1 QB 829

also requires member states to address asylum policies, prevent and combat terrorism, and cross-
member states in order to resolve issues arising from the free movement of people9.
The 1997 Treaty of Amsterdam amended Article 39 of the European Community Treaty,
and finally established basic legislation on the free movement of workers10. The treaty not only
explicitly protects workers 'right to freedom of movement without discrimination, but also
defines the scope and exceptions of workers' right to freedom of movement.
In addition, the Schengen Agreement and the Dublin Agreement provide important
guarantees for the free movement of people11. The Schengen Agreement, signed in 1985,
removed control of border personnel from the system (except for airports)12. The Dublin
Agreement prevents an asylum seeker in one-member state from reapplying for asylum in
another member state. The 1985 and 1990 Schengen Agreements were originally signed by three
economic union countries, including Belgium, the Netherlands, and Luxembourg, as well as
France and Germany, to eliminate border procedures at the common border and converge visa
procedures, and to provide cooperation with law enforcement agencies, especially when it comes
to drugs and arms. The agreement includes all nationals of EU member states, whether or not
they are part of the Schengen Agreement. Everyone must undergo the same inspections when
crossing the borders outside the Schengen area. Once within the Schengen area, the principle of
free movement is used, and the traditional procedures of crossing internal borders will be
abolished. However, the abolition of border controls does not mean the end of the control of the
relevant institutions of member states. Individuals must also continue to hold, carry, and present
their identity documents. Subsequent in the Protocol on the Integration of the Results of the
9 Janko Rottmann v Freistaat of Bayern Case C-135/08 on 2 March 2010.
10 Treaty of Amsterdam
11 Dublin Agreement
12 The Schengen Agreement

Schengen into the European Union Framework: It was noted that the phasing out of the common
border inspections signed by certain member States of the European Union in Schengen on June
14, 1985 and June 19, 1990 Agreement and related agreements and rules based on the above-
mentioned agreements, the purpose is to strengthen European integration, especially to promote
the European Union to develop more quickly into a free, secure and just region, and is willing to
make the above-mentioned agreements and rules Included in the framework of the European
Union (excluding the UK and Ireland).
In treating nationals of member states, the EU should follow the principle of non-
discrimination. Any form of discriminatory restrictions, including nationality, is prohibited when
people move freely. Article 12 of the EC Treaty clearly states that “discrimination based on
nationality is prohibited within the scope of this treaty and without violating special provisions.”
Therefore, in the sotgiu case13, the European Court held that It is illegal for Italian postal workers
to work for Deutsche Post, but to be at a disadvantage compared to German workers in terms of
living allowances for working away from home. The court held that people who pay the same
labor for the same institution may differ in income simply because of differences in nationality,
which is inconsistent with the principles on which the free movement of EU personnel is based.
Similarly, this kind of discrimination not only originates from nationality, but also includes other
hidden factors, such as taxation, calculation of residence and working hours.
Conclusion
13 Giovanni Maria Sotgiu v Deutsche Bundespost (1974) ECR 00153

Although the Court of Appeal’s decision did not to refer a question to the Court of Justice
of the European Union, Bernadette can still seek for justice and have her pay increased because
she is rightfully entitled to equal fair as per Article 12 of the EC Treaty.
Part 3: Advise the European Commission on its rights regarding the decision of the Court
of Appeal
Issue
What European Commission rights regarding the decision of the Court of Appeal?
Law
The issue can be addressed by applying the provisions found on EU Regulation
492/2011 (formerly 1612/68) and the decision made in the case of Hoekstra (nee Unger) v.
BBDA can help us in answering the issue.
Application
Based on the two laws mentioned above, I would advise EC to intervene where flexibly because
the problem of interpreting this economic freedom remains one of the most complex, since the
concepts of “person” and “employee” are used in the EEC Treaty, but none of them are
disclosed. The next difficulty is due to the fact that the freedom of movement of persons is
interpreted either narrowly - only in relation to the labor force, or widely - applies to all citizens
of member states, which inevitably brings with it the problems of migration, social security, the
provision of suffrage, the right to education, and much more. As a result of the need to fine-tune
the regulation of the right to freedom of movement within the European Union, EU institutions
have expanded the general provisions of constituent agreements in the norms of secondary law -

directives, regulations, decisions, where the decisions of the Court of the EU occupy an
important place.
The freedom of movement of persons within the European Union includes not only the
right to cross borders between EU member states, but also the right to reside in their territory
without being a citizen of the country concerned. Citizens of the European Union have the
broadest possibilities in realizing the right of residence, who can stay in other member states for
any length of time provided that they carry out economic activities or have sufficient financial
resources and medical insurance (for non-working citizens). Directive 2004/38 / EC also equated
in the migration rights to EU citizens their immediate relatives, including non-citizens of the
European Union. According to Directive 2004/38 / EU, the “family members” of the latter have
the right to move and reside freely in all EU member states together with citizens of the
European Union, an exhaustive list of which is enshrined in Art. 2 documents: spouse or
registered partner of an EU citizen (provided that in the country of residence a registered
partnership is considered equivalent to marriage).
As a basis for verification of documents, the EU Court no longer requires a real reason in
the form of unlawful human behavior or other circumstances indicating a risk to public order. It
is sufficient for the police to have “general information and experience in the field of illegal stay
of persons in places of control”, for example, information that illegal immigrants have crossed
the border at some time in the past. In fact, the only restriction that the EU Court imposes on
Member States, consists in the fact that migration control in the border zones should be selective
(not total), namely, it should be subject to “certain restrictions relating, in particular, to its
intensity and frequency”. What the meaning of “limited certaines” is, what is the maximum
intensity and frequency of police checks in border areas, the EU Court, alas, does not specify.

This opens up opportunities for the broadest interpretation (for example, stopping 9 out of 10
cars to check or checking documents with 99 out of 100 people crossing the border). So, despite
the removal of control directly at the borders within the Schengen area, such control is now
legitimate in the border zones. It can be carried out on a regular basis and in relation to any
person, even in the absence of reasonable suspicions of his unlawful behavior.
Conclusion
Evidently, since the decision regarding the court of appeal is appealable, the European
Commission should intervene in cases where the defendant’s powers are limited by the court
because with critical analysis of the issue, Bernadette can appeal.

References
Art. 21 of the Schengen Borders Code
Article 39 of the European Community Treaty
Article 12 of Regulation 1612/68
Article 4 (2) of Council of Ministers Directive 68/360
Article 19 of the Amsterdam Treaty
Directive 2004/38 / EU
Directive 2004/38 / EC
Dublin Agreement
Single European Act of 1986
Treaty of Amsterdam
Treaty of Rome
The Schengen Agreement
R v. Secretary of State for the Home Department, Ex parte Soblen, [1963] 1 QB 829
Janko Rottmann v Freistaat of Bayern Case C-135/08 on 2 March 2010.
Hoekstra (nee Unger) v. BBDA [1964] ECR 177. 7. C-337/97