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EU rights undermined?

01 May 1994

The Draft European Economic Area Order 1994, debated in parliament in May, purports to bring UK law in line with the free movement provisions of the Treaty on European Union and the European Economic Area (EEA) Agreement, but was greeted less than rapturously by the Joint Committee on Statutory Instruments, which expressed the view that the order's provisions on students were in breach of EU law. As a result of the disagreement, the House of Lords debate was adjourned for clarification.

Legal commentators believe that the order's shortcomings are far more serious than even the Joint Committee reservations allow. They say the Order entirely fails to give effect to the rights flowing from European Union citizenship created by Article 8a of Maastricht as from November 1993, or the abolition of internal frontiers in Article 7a. The effect of this is that European Union citizens (including British citizens) and their families are obliged to prove their right to live in the UK instead of getting the benefit of a presumption that they have the right to live here.

Those family members entitled to join EEA citizens here are also defined more restrictively than EEA law allows. When this was challenged in the House of Commons, Home Office Minister Charles Wardle responded that there was no need to spell out all family reunion rights, since the EC regulation concerned has direct effect in UK law "and therefore does not require separate transposition". Another contentious area of the draft order is the exclusion from EEA rights of spouses who are parties to marriages of convenience. What this provision will do is to open up all EEA marriages to the same detailed scrutiny as marriages to British citizens are subjected to currently thus exporting British immigration controls.

Draft European Economic Area Order 1994; Hansard 9.5.94, cols 65-72.