29 January 2016

It is expected that a draft text outlining a potential UK-EU deal will be circulated early next week – however it is clear that there are still issues where there is some distance between the two sides, particularly with regard to migration and access to welfare. There appears to be three options under discussion:

Firstly, the ‘emergency brake’. The idea of an emergency brake has come back to the fore in recent days, with reports that EU officials have suggested an emergency brake that could be used to deny access to welfare for four years (on a temporary basis) if pressure on public services (social and welfare systems) is seen to be too high. It should be noted that this is different to an earlier idea of an emergency brake that could impose a cap on the numbers of people arriving or working.

It appears that this is a proposal being pushed forcefully by the European Commission rather than the UK and, despite David Cameron cautiously welcoming it as “encouraging” that the Commission are “coming forward with ideas” (what else could he really say having asked for proposals), he also said such proposals “are not yet strong enough”. It is also worth noting that, as Leave.EU have already pointed out, in 2014 Cameron described the emergency brake as an “arcane mechanism in the EU that would be triggered by the EU Commission and not by us”, so I think the Government recognises that it is far from ideal. As we’ve noted in the past, there are many questions about how such a brake with regard to migration would work in practice, chief of which are who decides on its use and when it would be triggered.

Any brake that requires the approval of the Commission or even other member states – which reportedly is the proposal under the current plan – is likely to be vulnerable to attacks from Leave campaigners that it would be inadequate. A break solely in the hands of the UK Government (with some EU power to appeal or police against its misuse) could be more attractive.

In addition, what is an ‘emergency’? Given that it is current pressures that have given rise to the public demand for action, any brake would need to be in play immediately and an ‘emergency’ declared right away.

Furthermore, it is not obvious why other member states would be particularly keen on this proposal. It would be open to all EU states and could create a running sore on free movement and benefits in a number of different states. Polish Foreign Minister Witold Waszczykowski has already poured cold water on the plan saying, “[Poland] will not accept a mechanism that denies social benefits to Poles living in the European Union.”

It’s not clear whether by pushing this the Commission is trying to bounce the UK into the emergency brake or whether it is about expectations management. Either way, while we don’t have full details yet, it’s difficult to see this proposal playing particularly well with voters or the media if it is the centrepiece of the deal on migration.

The second idea is to tighten the definition of a worker under EU free movement rules. This was reportedly an idea tabled by Germany, which would establish that to be defined as a ‘worker’ you would need to be earning over a certain income threshold. This would mean EU workers earning below this threshold would be barred from claiming welfare. This would be another means of achieving the same ends as the four-year restriction on benefits, since it would effectively mean ensuring that EU workers’ incomes would not be topped up with welfare if their employment did not make them self-sufficient. The key to this though is what threshold is set and, reportedly, the UK found the threshold set by Germany to be too low to be acceptable.

This could be achieved by changing EU rules and regulations on free movement and as such may even be achievable via secondary legislation, though that is far from certain. It is also unclear whether this could also impact domestic workers. It is unlikely to fly if it does, but the assumption seems to be that they would only apply to migrant workers rather than domestic ones. This seems to be the UK’s favoured option at the moment, at least in terms of alternatives to its original proposal as it is a neat – and potentially less politicised – way of achieving the same ends.

Thirdly, a residency based eligibility test. This idea appears to be losing steam but has been suggested as a way of implementing a four-year restriction on benefits by applying residency criteria rather than nationality criteria. This could prove more acceptable to EU partners since it would not directly discriminate but indirectly discriminate.

At this stage, with such proximity to the February summit, it is difficult to know which reports to believe and all the options have legal hurdles to overcome. There is likely to be much misinformation but this only highlights that in this area – and potentially in some others – there remains much to do to get a deal in just two weeks’ time.