Looking at the FoM controls available and where the UK have failed to use these powers.
The EU Freedom of Movement of workers into the UK has been a major success – despite the spin and deception surrounding these rights. However, by failing to demonstrate control, successive UK Governments have invited criticism – to the point that it was used by the Leave campaign as a representation of how the EU has lost control of it’s borders.
Power 1 – Restriction/stopping of EU migration from new member countries.
The FoM directive allows for the “old” countries to restrict the rights of migrants from “new” countries for up to 7 years. The powers vary from stopping migration completely or allowing only for selected categories of work on a work permit basis.
In 2004 the UK chose not to use this power at all.
One of the sharpest rises in net migration came in 2004, when the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia joined. The UK was one of only 3 of the original EU members (UK, Sweden and Eire) to choose not to apply transitional restrictions on these eight countries.
In contrast Germany and Austria kept the transitional restrictions in place for a full seven years. Other countries kept restrictions for between 2-5 years and the Netherlands reserved the right to impose further restrictions if there were ever more than 22,000 migrants in a year.
By not implementing the restrictions the UK invited the surge of migration. They could have avoided the surge and the enormous bad press that accompanied it if they so chose.
Power 2 – Ability to prosecute Benefit fraud and “Welfare Tourism” by EU migrants
The FoM directive is clear. The directive enables Member States to adopt the necessary measures to refuse, terminate or withdraw any right conferred in the event of abuse of rights or fraud, such as marriages of convenience. Article 35 of the directive expressly grants Member States the power, in the event of abuse or fraud, to withdraw any right conferred by the directive. The Migrant could be removed from the UK as well as prosecuted for Fraud.
The UK have not used this power – ever. As the UK does not know or track how many migrants are using the welfare system in this way then it is unable to even try to exercise this power.
Other EU members insist on migrants proving that they can support themselves. For example Belgium requires all migrants to prove they have sufficient funds, health insurance and suitable housing.
Whilst the FoM directive is now widely blamed for an “unacceptable burden” (Theresa May) the problem would seem to be more one of lack of control by the UK Government rather than “Benefit Tourism” by migrants.
Power 3 – Ability to return EU migrants to home country if not “economically active” after 3 months
After 3 months in the UK EU migrants need to be either working, have a member of the family working or have sufficient funds to live (and have full sickness insurance). If not then they can be returned to their home country.
The UK does not register migrants as they arrive and as such has no way of knowing how long they have been in the UK. There are no efforts to track or control this movement *. This once more allows the EU-skeptics to portray the FoM as “uncontrolled migration”.
In contrast Belgium requires all migrants to register at their Town Hall within 3 months of entering the country and if they intend to work their claim will be assessed and will be processed within 6 months. During this time they can reside in Belgium provided they can prove they have sufficient funds, health insurance and suitable housing. If permission is granted they will be issued with a Foreigners ID card. Only after 5 years of legal and continuous residence in Belgium will EU/EEA and Swiss citizens automatically acquire the right to permanent residence in Belgium (residence card E+)
It is not the FoM that causes the lack of control in migration it is the UK Government themselves.
Power 4 – Emergency brake on Welfare Payments
As part of the pre-referendum renegotiation, Mr Cameron secured a further power. This “emergency brake/Red Card” mechanism would allow any EU country whose welfare system has come under strain, as the result of an influx of EU migrants of ‘an exceptional magnitude’, to restrict access to certain kinds of welfare benefits.
This power was lost once the UK voted Leave in the June Referendum.
To summarize it was the UK’s choice to not implement a 7 year partial or full migrant break in order to prepare for fresh immigration from new EU countries, almost all other countries did so.
Even with that failure, considerable EU powers already exist to manage migration. It is legally possible to register & track all immigrants, ensure they are entirely financially and medically self supporting, prevent and/or prosecute benefit fraud and return home any migrants who are not economically active.
Furthermore, Cameron secured an “emergency brake” to suspend Welfare Payments to migrants if necessary – powers which are now lost.
Other EU countries use these powers which might explain their reluctance to fix something that is not broken.
It is entirely likely that we are leaving the EU in part because successive UK governments have failed to understand or have been unwilling to use these significant existing powers.
* The UK does not know how many EU migrants are in the country, as migrants are not checked or tracked. The numbers provided by Government on migration are estimates only. The total migrant population is measured through the Labour Force Survey (LFS) and the Annual Population Survey (APS), which aggregates and supplements LFS data to improve statistical accuracy. The annual movement of migrants is measured primarily through the International Passenger Survey (IPS), which surveys passengers at UK ports, with additional data on migration to and from Northern Ireland and Home Office data on asylum seekers.