Some sort of freedom of movement exists for all people regardless of their nationality by virtue of holding a passport. However, not all passports are the same some passports carry different mobility rights across the world. Possessors of Afghan passports, for example, can travel freely to 28 countries at the same time that possessors of British, Finish and Swedish passports have near global mobility rights because they are able to enter freely to 173 of the 193 countries in the world (Henley and Partners Visa Restrictions Index 2013). The wide disparity in mobility rights has given rise what Stephen Castles (2005) calls “hierarchy of passports”. However, the kind of mobility regimes passports establish is rather limited as it only secures free entry but guarantees no right to residence in the country, no rights for family members or other post-entry rights. Before the establishment of the European Community and freedom of movement, Europeans travelled under the same conditions as other international migrants using their passports and enjoyed limited rights once in the country. The emergence of a regional space for unrestricted mobility a profound change in the way the Europeans moved across the continent. Compared with similar regional projects such as NAFTA in North America, MERCOSUR in South America or the Euroasian Economic community, European freedom of movement of people stands alone because in the European case, mobility lies at the heart of the EU and together with the freedom of movement of services, goods and capital forms the four core freedoms of the Union. To recall the centrality of freedom of movement of people within the EU and the progressiveness of the regional integration project in Europe, Adrian Favell (2014) calls it “the fourth freedom” of the EU. Others on the other hand see it as an anachronism for the contemporary narrative on immigration. The editors of a leading EU law journal (Editorial Comments 2014) describe freedom of movement as a dream that turned into nightmare “legally over-complicated, politically abused allegedly costly and popularly misunderstood?” Indeed, monitoring reports the implementation of freemovers rights have revealed repeatedly irregularities with the transposition of the Directive in practice (Shuibhne and Shaw 2014). In April 2014, the European Commission acknowledged the problem and adopted the Directive 54/2014 that sets new rules to ensure better implementation of the rights of workers and jobseekers.
Freedom of movement is not only a generous mobility regime but it also generates additional rights including social rights in the member states of destination (Bauböck 2007; Kostakoloupou 2007; Maas 2007; Olsen 2008). Nonetheless, a notable absence is the lack of political rights for mobile Europeans in national elections although recent mobilisation in favour of these rights have found new momentum in the European public sphere (Shaw 2007; Barbulescu 2012; Baubock et al. 2012). The European freedom of movement therefore provides for ample entry and post-entry rights linked with residence which, create to a fairly unrestricted space human mobility within Europe. I underline fairly because it is not an absolute right. From the beginning, the treaties included safeguards that protect the interests of the member states from ‘unreasonable burden’ on the social assistance system (Article 14 of the Directive 38/2004) (see Chap. 7 on Belgium) and allow them to restrict freedom of movement on grounds of public policy, public security and public health (Article 27.1).
The freedom of movement of people was established at early stages of European integration. In its original definition in the Treaty of Rome (1957) it established under Article 3 ‘the abolition, as between the member states, of obstacles to freedom of movement of persons, services and capital’ and took more than 10 years until it was implemented in 1968 with the Regulation 1612/1968. The policy was the result of convergence of interests between the Italy and the North-Western European countries, notes Moravcsik (1998: 149): “Italy sought to export labour and the other [Northern European], especially Germany, sought to import it, so it was easy to agree in principle on freedom of movement”. Italy in particular argues Romero (1993: 52), was keen in signing off the policy because of the emerging European employment market provided with a solution to the chronic unemployment and poverty that led to Italians’ mass emigration the turn of twentieth century (see Chap. 5, this volume). Paradoxically, the promise of freedom of movement for people announced in the Treaty of Rome that implied it would apply to all nationals was materialised into a labour mobility for workers in 1968. Peo Hansen and Stefan Jonsson (2014: 227–30) show that the change of wording from freedom of movement for nationals to workers was determined in the negotiation leading to what we now know as the Treaty of Rome. France requested to integrate Algeria, who at the time was part pf Metropolitan France, to the European Community. In this case, Italy was amongst the opponents. Algeria’s integration to the common market would have meant that its agriculture and especially Algerian workers who had French citizenship would now have competed with the Italian products and Italian workers. Algeria became an independent state before the implementation of freedom of movement but the early negotiations surrounding the Algerian case helped the member states understand that by replacing nationality with workers, they gained some leeway in deciding who qualifies for the worker status and under which conditions could they enjoy free mobility.
The initial introduction of freedom of movement of workers served both instrumental objectives of the European integration (Olsen 2008). At its early phase, integration focused on developing the economic advantages of the Union and on building the common market. Freedom of movement of workers complemented the freedoms of services, goods, capital and added substance to the common market. It also served the political objectives of the EU by creating a sense of unity, amongst the people of Europe, or a quasi-European demos and, therefore, legitimising the newly established Union.
Until the Treaty of Maastricht (1992), freedom of movement evolved consistently and progressively expanding the groups of EU citizens who could enjoy these rights from workers and their families to economically non-active people with sufficient economic means to support themselves. These changes were implemented through a series of European Community regulations 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC throughout the 1980s and 1990s. Generally, the regulations sought to amplify the scope of the freedom of movement to include students, pensioners and economically autonomous people. Treaty of Maastricht (1992) marked a milestone in the evolution of freedom of movement: it elevated the status of freemovers to citizens of the European Union and introduced new political rights for the mobile Europeans. Bellamy and Warleigh (2005) note that provisions made by the Treaty of Maastricht sought to substantiate the single market and need tackle the democratic deficit between the citizens and the European elites. The freedom of movement expended progressively until the mid 2000s when it culminated with the Directive 38/2004, also known as the ‘Citizenship Directive’.
The Directive also established a right of permanent residence for Union citizens and did away with the exclusive relationship between freedom of movement rights and EU citizens by expanding them to third country nationals. Nevertheless, the latter were to benefit of these rights freely as did the EU citizens but only under extraordinary circumstances: if and only if third country nationals complied with certain conditions requested by the member states. This last addition corrected what William Maas (2008) has called the ‘unfulfilled promised’ of EU’s citizenship: its inability to extend the rights that Union citizens enjoyed since 1950s to long-term legal residents from third countries. In other words, what the Citizenship Directive achieves was to take further the legacy of Maastricht by consolidating the scope of freedom of movement and by expanded its associated rights; but, crucially and most importantly the Directive marked a firm move from the economic logic of market-minded freedom of most significantly that dominated the European agenda until Maastricht to the nation-building project of ‘making’ citizens and setting the basis for a European political community.
In addition to the large number of regulations, guidelines, statements and communications from the European Commission, the Court of Justice of the European Union (CJEU henceforth) played an important role in interpreting the scope and limitations of both freedom of movement rights and Union citizenship through a vast jurisprudence on these matters. CJEU interpreted Union citizenship as destined to become the fundamental status rather than a complementary status to the national citizenship. A series of the Court’s rulingsFootnote 1 have consolidated this interpretation over time. The most remarkable example of the “court-driven empowerment” (Joppke 2010: 171) of the Union citizenship is the CJEU’s decision in the Grzelczyk
Footnote 2 case. The court reaffirmed the right of a French-national student, Rudy Grzelczyk, who after 3 years of studying in Belgium and working to support himself throughout his studies, to minimum subsistence allowance offered by the Belgian authorities. The CJEU held as follows:
[U]nion citizenship is destined to be the fundamental status of nationals of the member states, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.Footnote 3
In November 2014, the CJEU made a major decision on the rights to social protection for freemovers. In the landmark Dano case,Footnote 4 CJEU has ruled that Union citizens lose the right to access to certain social protection packages if after the first 3 months they do not fall under the categories protected by the Citizenship Directive: workers (be them dependent or self-employed), former workers or jobseekers. Elisabeta Dano, a Romanian Roma and lone mother in charge of 5-year-old with whom she resided in Germany since 2011. Ms Dano was living with her sister who also providing for her financially. At the time she made the new claim, Ms. Dano was already receiving two types welfare benefits in Germany – child benefit and lone parent benefit – and had applied for a third one, a special non-contributory cash benefit known as basic provision under the SGB II. It is for this third type of benefit that the Court decided that she was not entitled to claim it. The Court argued that Ms Dano was not eligible for this benefit because, at the time when she claimed the benefits was neither a worker, a former worker or jobseeker. The Court noted that “it is apparent from the documents before the Court that Ms Dano has been residing in Germany for more than three months [at the time of making the claim] that she is not seeking employment and that she did not enter Germany in order to work” (Paragraph 66).
In September 2015, the Court ruled a restrictive decision in another case on EU citizens’ access to welfare rights. In Alimanovic,Footnote 5 the decision confirmed that the member states can refuse social assistance to EU citizens who lose the status of Union workers. Alimonovic family are Swedish citizens who resided in Berlin Germany. The family is composed by Nazifa the mother, Sonita elderly daughter and two minors still in the care of the mother: Valentina and Valentino. The family settled in Germany in early 1990s where the three children were born, but moved to Sweden in 1999. They returned to Germany in 2010. The mother and the older daughter worked on temporary contracts for nearly a year from June 2011 to May 2012 after which they applied for unemployment benefits. When these were exhausted, they applied for social assistance for people in long-term unemployment (known as Arbeitslosengeld II). The Court ruled that Germany can stop these payments because neither the mother nor the daughter have managed to retain their status of Union workers. The directive specifies that in order to retain the worker status, the EU citizens have to had worked for more than 1 year, has been laid off and is registered with the relevant employment office case. Even in this case, the Union worker can retain the status for only 6 months. Both the mother and the daughter exhauseted the 6 month period and therefore lost the status of Union worker.
Dano and Alimanovic cases are transformational for European freedom of movement beyond their legal consequences. Both rulings turn the light on the two elements of the freedom of movement that have been contested by the public and the far-right anti-immigration parties but which have slowly found their way on the agenda of mainstream political parties. The first is that the fact that free movement might mean unconditioned freedom to settle and the fact that freedom of movement would be used by some Europeans to “shop” for more generous welfare benefits than in their countries of origin. Dano and Alimanovic spoke directly to growing angst with free movement and addressed heads-on both concerns. The decision stated black over white that host member states can indeed deny non-contributory benefits to freemovers and that they enjoy relative generous rights that come with freedom of movement for a period of 3 months. After this period, freemovers can retain these rights if and only if they are workers, former workers, jobseekers or have enough financial resources to be economically self-sufficient. When freemovers do not hold such statuses, then they lose the rights established by the Directive. The Directive (Article 7.1) is clear on the right to reside after the first 3 months is conditioned by freemovers’ financial self-sufficiency and “comprehensive sickness insurance” so that they or their family members do not become “a burden on the social assistance system in the host state”. While the European freedom of movement creates ample mobility rights (Article 5 in the Directive) and a wide set of rights for the first 3 months of residence (Article 6), freemovers’ need to meet the self-sufficiency criteria to retain these rights after the first 3 months (Article 7).
The asymmetry in rights that is built-in between before and after the 3 months period that have created public concern and confusion about freedom of movement and which, the Dano and Alimanovic doctrines have helped dispel. In effect, these cases do nothing more than to switch the light and lay bare what it seemed the best-kept secret of freedom of movement: its limits. While these limits have been part of deal from the beginning, they have rarely entered the public debate of freedom of movement and they were consistently omitted from the promotion campaigns of the European Commission that pushed for more intra-European mobility and focused on the special rights of the freemovers. Perhaps more importantly is that before Dano and Alimanovic, the limits of freedom of movement seldom have been enforced. However, these recent decisions of the CJEU has received much media attention and announces a period of retrenchment of freedom of movement rights.
In the following section, I explore the policy and political responses to freedom of movement in times of crisis and zoom-in on their consequences for the migration of Southern Europeans.