Since the concept of EU citizenship was introduced in 1993 with the Maastricht Treaty, the European Union has come a long way in protecting the rights of EU citizens who exercise free movement to live, work or study in another Member State. There is however a fundamental difference between intra-EU mobility rights of EEA nationals and non-EEA nationals, with conditions unsurprisingly more limiting for the latter (except when they are themselves family members of EEA nationals).
The EU migration Directives cover mobility rights of some non-EEA nationals, notably long-term residents, EU Blue Card holders, students, researchers and posted workers but they leave significant areas at the discretion of Member States who can and do limit mobility according to their national policies and priorities, thus creating different rules and practices across the EU.
The UK along with Ireland and Denmark enjoy opt-outs from EU legislation in certain policy areas, justice and home affairs (JHA) being one of them. Although there is controversy over what the UK and the EU deem to be within the policy areas that can be opted-out from, the EU mobility Directives do fall within JHA and the UK has opted out of most EU migration Directives except for the posted workers Directive.
Long-term Residents – Directive 2003/109/EC
Non-EEA nationals who are long-term residents in an EU Member state (this means 5 years) can move between Member States that have adopted the Directive and obtain a residence permit through simplified procedures.
However, Member States enjoy discretion in applying additional measures to regulate the numbers of third-country nationals entitled to be granted a right of residence. These areas of discretion include the possibility of applying a labour market test or quotas, require evidence of “appropriate accommodation” in the second Member State and of stable financial resources, sickness insurance and compliance with integration measures.
Although the Directive in theory facilitates intra-EU mobility of non-EEA nationals, it suffers from fundamental ambiguities and non-linear application across Member States resulting in only small numbers of long-term residents having actually benefited from it (fewer than fifty per Member State according to the Commission Report COM (2011) 585, 10). As the UK has not adopted this Directive, non-EEA nationals who are long-term residents in the EU will need to apply and be treated like any third country nationals coming to the UK under national immigration rules.
The EU Blue Card Directive 2009/50/EC
The EU Blue Card allows highly skilled workers from third countries to move between Member States that have adopted the Directive to cover specific intra-EU labour and skill shortages.
The conditions of admission are again governed by the national laws in place and the Directive has not been effective in fulfilling its objectives as the number of issued Blue Cards remains relatively low and is unequal among Member States.
In June 2016, the Commission put forward a more ambitious proposal for a new EU Blue Card Directive that offers a more harmonised, simplified and streamlined approach to attract highly skilled workers through an EU-wide scheme.
The UK having opted-out of the Directive does not accept EU Blue Card holders. Any highly skilled non-EEA nationals will need to meet the requirements of the immigration rules on skilled work.
Posted workers Directive 96/71/EC and Vander Elst
The internal market is a dynamic environment for the transnational provision of services, which at times requires the posting of employees to perform work in the territory of a Member State other than that of their normal employment. While the Directive covers all posted workers whether they are EEA or non-EEA nationals, relevant case law from the Court of Justice of the EU makes clear that the host Member States may not impose additional administrative formalities or conditions on posted workers who are non-EEA nationals when they are lawfully employed by a service provider established in another Member State (judgment of Vander Elst, case C-43/93, of 21.10.2004)
In effect, the Vander Elst judgement which is implemented by all EEA States including the UK, facilitates the posting of non-EEA nationals without the requirement to have a work permit.
Non-EEA posted workers must still need to meet other formalities, such as: being paid the national minimum wage, have lawful residence in the first Member State and be legally authorised to work there, hold a regular employment contract; return to the country of residence (or origin) at the end of the period of posting.
Brexit Transition Period
There are proposals for new Directives to extend the mobility rights of non-EEA nationals and introduce provisions for new categories that are not already covered (eg. cross-border intra-company transfer workers, seasonal workers and workers in regulated professions), however the legal framework in the UK will remain largely unaffected during the two-year transition period (assuming there is one). The EU-UK Withdrawal Agreement provides that new acts adopted during the transition period will continue to apply, except in areas where the UK has opted-out before Brexit.
In the unfortunate and unlikely event that there is no withdrawal agreement, the Vander Elst category of posted workers that is part of EU law will most likely cease to exist overnight. Although the UK has already included legal provisions in the national immigration rules to cover the rights of EEA nationals which we will cover in a separate post, the same cannot be said yet for posted workers.