EC publishes draft proposals for a new settlement for the UK within the EU

The European Council (EC) President, Donald Tusk, has today published details of his proposal for a new settlement for the UK within the European Union (EU). You can access the draft proposal materials from here, with the main 15-page draft decision available here.

According to BBC News, Prime Minister David Cameron said the EC's draft deal delivers the "substantial change" he wants to see to the UK's relationship with the EU.

The deal allows for an "emergency brake" on migrant benefits, BBC News said, while the Telegraph summarised the EC's proposals on migration and benefits as follows:

• A watered-down emergency brake will limit migrants' access to benefits for four years immediately after the referendum. Rather than a total ban, access to in-work benefits will be "graduated from an initial complete exclusion but gradually increasing"
• Migrants will still be able to send benefits to their children abroad, just in lower amounts than they currently do
• Mr Cameron will be given new powers to stop suspected terrorists and criminals coming to the UK, not only if a threat is "imminent"
• New rules will stop people coming to the UK via "sham marriages". They will prevent non-EU citizens marrying an EU citizen to then live and work in Britain.

The EC's draft declaration regarding the UK's concern over benefits for migrants workers is here (note that it refers to the "emergency brake" as the "safeguard mechanism"), and states: "[T]he European Commission will table a proposal to amend Regulation 492/2011 on freedom of movement for workers within the Union to provide for a safeguard mechanism with the understanding that it can and will be used and therefore will act as a solution to the United Kingdom's concerns about the exceptional inflow of workers from elsewhere in the European Union that it has seen over the last years. The European Commission considers that the kind of information provided to it by the United Kingdom shows the type of exceptional situation that the proposed safeguard mechanism is intended to cover exists in the United Kingdom today. Accordingly, the United Kingdom would be justified in triggering the mechanism in the full expectation of obtaining approval."

The EC's draft declaration on issues related to the abuse of the right of free movement of persons is available here and we've reproduced it in full below:

DRAFT
DECLARATION OF THE EUROPEAN COMMISSION
on issues related to the abuse of the right of free movement of persons

The Commission notes the Decision of the Heads of State or Government, meeting within the European Council, concerning a new settlement for the United Kingdom within the European Union and notably its section D.

The Commission intends to adopt a proposal to complement Directive 2004/38 on free movement of Union citizens in order to exclude, from the scope of free movement rights, third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen or who marry a Union citizen only after the Union citizen has established residence in the host Member State. Accordingly, in such cases, the host Member State's immigration law will apply to the third country national. This proposal will be submitted after the above Decision has taken effect.

As regards situations of abuse in the context of entry and residence of non-EU family members of mobile Union citizens the Commission will clarify that:

• Member States can address specific cases of abuse of free movement rights by Union citizens returning to their Member State of nationality with a non-EU family member where residence in the host Member State has not been sufficiently genuine to create or strengthen family life and had the purpose of evading the application of national immigration rules.

• The concept of marriage of convenience - which is not protected under Union law – also covers a marriage which is maintained for the purpose of enjoying a right of residence by a family member who is not a national of a Member State.

The Commission will also clarify that Member States may take into account past conduct of an individual in the determination of whether a Union citizen's conduct poses a "present" threat to public policy or security. They may act on grounds of public policy or public security even in the absence of a previous criminal conviction on preventative grounds but specific to the individual concerned. The Commission will also clarify the notions of "serious grounds of public policy or public security" and "imperative grounds of public security". Moreover, on the occasion of a future revision of Directive 2004/38 on free movement of Union citizens, the Commission will examine the thresholds to which these notions are connected.

These clarifications will be developed in a Communication providing guidelines on the application of Union law on the free movement of Union citizens.

Steve Peers, Professor of EU Law & Human Rights Law at the University of Essex, has an in-depth blog post on the EC's proposals and their implications for free movement here.