Right to Free Movement in the European Market

Right to Free Movement in the European MarketThe philosophyThe right to move freely represents one of the fundemental freedoms of the European subjective market. This superior general rule on free movement rights under EC law continues to be developed,1 either due to element state progression or economical and aditible demands. Although one of the most panoramic in its ideals, the free movement of workers has seen several central legal anaesthetizes arise on various occassions. nevertheless exploration of these central issues must be seen through a consideration of the tensions and interplay between twain economic and social aspects of the free movement of people from both inside and outside of the European Union.The free movement of a citizen of the European Unon is seen to contribute to the economic progression of the Community as a whole. In the adept market the worker is also a human being exercising their right to live in a nonher state and to take up piece of work w ithout the risk of discrimination and to improve the standards of living for themsleves, and possibly, their families.But for nationals of a third party cases such(prenominal) as Chen (2004), Baumbast (2002) and Carpenter (2002) establish meant that as the match or realtive of an EU citizen their entry into the Community is a secure one. Further, gaining the same rights of an EU citizen under Regulation 1612/68 EEC.But this idea of border controls and unbound freedom of movement at bottom the Community is closely interlinked with the posiiton of the non-EC national, whose right to movement and residence under EC law is limited,2 as well as the contribtuing issuance that the members states attitude has upon their admission.3Fortress EuropeAlthough EC legislation had intended that internal barriers to the four freedoms be eliminated and that only an external barrier (at the borders of the Community) remain, academics have argued that this whitethorn not always be so4how these pro posals have been watered d take in through discussion in member states, in particular in relation to employment, which is an burning(prenominal) requi lay for the integration of migrants.5Whilst the freedom of the EC worker is guaranteed through Treaty rules and secondary legislation, this does not mean that member states may no longer achievement control over population movements, into and within their territories.6 But some ECJ case law on Directive 68/360 expressly recognised that member states may have legitimate reasons for wishing to keep account of the population within their terrrtories.7The European Union, by using border controls to its extremities, has managed ot create a border-free, intra-EU site creating what has been dubbed as Communierisation of its geographical spot.Although the EU has been successful in its pursuit of re move internal barriers to the four freedoms, its imposition of external barriers (namely, the fortress Europe tendany) ar dread upon those na tionals of third parties from stepping into Europe unless they are related to a citizen of the EU who excerts their right to free movement.The EU has long been attacked as an exclusionary organisation concerned solely with the citizens of its own member states at the cost of non-EU citizens residing in the EU, even though many of the latter form part of ethnic or religious minorities and suffer social exclusion.8So, it seems that the principles governing the borders of the Community are failing those third party nationals.9The OutsidersA vivid example of how fortress Europe had imposed this restriction can be noted prior to the accession in 2004 of many, now, Central and Eastern European countries. Lavenex10 argues that prior to, and with suggestions of accession for Central and Eastern European countries the, then, current members of Europe had feared large-scale immigration from these countries into their own territories. The EUs already heavily regiinented rules of external borde r barriers on trade and migration from outsiders (those countries not members of the EU) where to form part of the accession policies. heart and soul that the acceeding Central and Eastern European countries encountered stringent preventative stances to their entrance into the EU on beahlf of the Community.But during a time when security at an intergovernmemtal level is already on red alert due to heightened tensions caused by the threat of terrorism,11 it appears that migration has become a security rather than economic issue. So risking mmigrants and asylum-seekers being portrayed as a challenge to the protection of national identity and welfare provisions. Moreover, supporting the political construction of migration as a security rather than economic issue.12 getting in or staying out?The treatment of third country nationals (besides those who have derived rights through Community family members) can be understood through external and internal dimensions. The external element, n amely the issue of getting into the EU focuses on the member staes and the institutions emphasis of immigration and border controls. even, according to the case of Wijsenbeck13, the member states are fluent able to perfomr checks at their own borders, be them external or not. But this policing of movement draws attention to the vulnerablity of the third country national.14 But progression has been felt. Through Artcles such as K.1 to K.9 of the TEU governing policies such as asylum, immigration and third country nationals which have now been intergrated into the EC Treaty (as Title IV) , as well as Regulations have now inacted the uniform format for visas.15 Regulations also cover the listings of third countries whose nationals must be on will power of visas when crossing external borders.16Importanly, the area of immigartion and the member states stance on the matter of border control is liable to change in accordance with their political climate. The emphasis post-September 11t h has fallen squarely on matters of security.17 Various member states have also expressed concern at the numbers of third country nationals seeking asylum in their territory, so reinforcing their diffculties in gaining access into the EU.The internal dimension of the matter is one which concentrates on the rights of third country nationals already residing within the Community. As there is no stringent root as to their status upon this such limiteed rights are based on various possible provisions. This can include their capacity as a family member of an EU citizen (as aforementioned) or as employees of EC service providers or as subject to one of the Communitys Assocaition, Co-operation or other International Agreements with third countries.18 level(p) though their residence in the EU may be legitimate the general range of EC rights and freedoms, however, do not apply to them. With speculation change magnitude as to the possible imposition of ID cards within the UK has also been b acked by the controversial possible introduction of the staus of European citizenship. This citizenship, which would be conditional upon the possession of member state nationality, may only serve to emphasise the differences in treatment between EU nationals, who possess such nationality, and those who do not.But from an economic standpoint, countries potentially out of the line of terrorist fire have welcomed the idea of third country nationals, especially those intending to work, as being a potential boost to their economy. Yet the richer member states argue that the heightened security risks and flood gate effects that recent accession has had is already having an adverse effect on their economies.Concluding Staying stationaery or moving through the times?But Peers19 argues that change may soon be on the horizon with the implementation of Directive 2003/109 on the status of long-term occupier third-country nationals within the European Union. This Directive was an opportunity to address the long-standing criticism that the EU gives insufficient protection to its resident third country nationals. Already being describe as limited and disappointing in a number of respects. Yet, if consequential jurisprudence reflects its interpretation as being in line with the context and objectives of the Directive, it could figure out a positive contribution to the status of third country nationals in the EU. This especially as in regards to movement between member states.20By jet accord, the unity the EU claims for itselff when constituting itself as an area of freedomn, secrutiy and justice has become troublesome. Critics are quick to point out that the area in which freedom, security and justice are to reign is a spurious geographical unity.21Yet, even if it were to be accepted that Europe is a geographical union, the fact remains that the EU has agreements with countries outside of this territory (such as the 1963 Ankara Agreement with Turkey), meaning that EU exte nds its reach outside of this area.22One of the main arguments behind the impact Europe is having by waterproofing off its border lies closer to home. Given that accession into the Community is based upon adaptation of national policies, be them economic, political or social, to those already established within the EU, many countries faced closing their borders to the outside for upholding the principles of preventing illegal immigration. But, in contrast to this member states are also expected to uphold the humanitarian standards of refugee protection23 and the principles of the European humankind Rights Act. With the EU being a figure-head in the creation and implementation of human rights agendas, this contradiction will only serve to weaken the EUs star political status. Where member states face penalties for failing to uphold either of these policies, many are at a loss as to which one prevails. These conflicting ideals have obviously affected the manner in which those member states with borders to the outside have integrated the principles into their immigration and refugee procedures. Further to Lavenexs idea of fear of mass migration by the West, Huysmans alleged that the question of migration from countries external to the EU is a security problem rather than just one of immigration and asylum. As Huysmans statesSince the 1980s, the political construction of migration progressively referred to the destabilizing effects of migration on domestic integration and to the dangers for public order it implied.24Huysmans also alleged that due to such developments as the Schengen Agreements and the Dublin Conventionvisibly channelize that the European integration process is implicated in the development of a restrictive migration policy and the social construction of migration into a security question.This meaning that access for third country nationals is now even tougher maybe the member states would prefer for the barriers surronding fortress Europe to r eamin?The Schengen Convention completely removed border controls and placed stricter contorls at the external barrier of the EU. This resulting in a stronger emphasis on external restrictions and lifting all restirtcions between member states. The Schengen scheme had been directly accredited to concerns over the amplify of organised crime within the Coimmunity. But with conerns inceasing still as to the problems of human and drugs trafficking into the EU from third countries and its threat to internal security only serves to push the issue of external border control into the spotlight once again.Ultimately, academic writing25 has contemplated the responsibility of the EU to uphold its policy on human rights and its measure of internal barriers to freedom of movement. But as inportant as thiese priniples may be in maintaining structure and authority the Community should also reconsider its position on a global scale when encountering the needs of asylum seekers at their external bor ders as well as those already residing with them without the claim of derived rights.Footnotes1 Carrerra, S. (2005)2 Peers, S. Towards Equality actual and Potential Rights of Third Country Nationals in the Euroepan Union. (1996)3 Craig, P and De Brca, G. EU Law Text, Cases and Materials.4 Binkman, G (2004)5 op cit6 I tender 37 Case 321/87 armorial bearing v Belgium (1989) ECR 9978 Peers, S. (2004)9 ECRE (2004)10 Lavenex, S. Safe Third Countries Extending the Eu Asylum and Immigration Policies to Central and Eastern Europe11 Levy (2005)12 Huysmans (2000)13 (1999)14 I bid 315 Reg. 334/200216 Reg. 359/200117 I bid 1118 I bid 219 I bid 820 op cit21 Lindahl, H. Finding a Place for Freedom, Security and Justice The European Unions claim to Territorial Unity. (2004)22 ibid 823 I bid 1024 Huysmans (2002)25 I bid 21