Britain lacks consistency in its approach to the free movement of EU citizens because of tensions between European and UK Law

By Nuffield Foundation

A new report states that discrepancies between EU free movement law and UK immigration legislation are having an effect on freedom of movement.

Researchers say that in some cases there are significant differences in the way the law has been applied by UK authorities, particularly the UK Borders Agency and the Home Office, when compared to the approach of the European Commission and the Court of Justice.

The report by the Universities of Edinburgh and Glasgow proposes the creation of a new office of EU free movement or citizenship ‘champion’ to act like an ombudsman. The new office could support and guide the effective implementation of EU law on freedom of movement they say.

Researchers reached their conclusions by looking at recent case laws of the EU court and the UK tribunal system. They also incorporated the findings from interviews with members of groups such as solicitors and advocates, judges, officials in the EU institutions and Non-governmental Organisations.

The report, funded by the Nuffield Foundation, found that The UK Border Agency (UKBA), and sometimes the courts and tribunals in the UK seem to lack knowledge of EU law that applies to their areas.

They found a high rate of refusals of applications by the UKBA, especially those made by family members of EU citizens. However, they also noted a high rate of successful appeals against those refusals within the tribunal system.

Researchers say that this suggests an inconsistent approach. They add that a new agency to act as a citizenship champion’ would ensure better fit between the British and EU legal systems.

They say the change could not just help citizens of other EU Member States in the UK, but also UK citizens where they exercise their own rights and themselves face obstacles in other countries.

They say that the tension exists because EU free movement law is rights-based and UK immigration law is permissions-based. The friction which this generates needs to be ironed out to help the EU to operate as a ‘common citizenship area’.

Professor Jo Shaw, from the University of Edinburgh’s School of Law and lead author of the report said: “We started our work with a broad sense that something might be amiss with the application of EU law in the UK. Our detailed work has highlighted the area where there are tensions, for example, regarding family members. This core aspect of EU law needs further work to ensure that its benefits are felt by the UK and EU citizens.”

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