EFTA+EEA Free Movement:
By Torrin Wilkins
Free Movement

Current UK-EU Relationship:

The basics of the UK’s relationship with the EU from a free movement perspective are as follows. The UK is a member of the European Union which includes a common market at its core. This allows money, goods, services and most importantly for this article, people, to travel between EU countries easily. While the UK has multiple ways to reduce immigration, free movement itself is a pillar of the EU and it is very difficult to fully suspend it. While a country could ask the EU commission to invoke safeguard measures that takes the agreement of the commission so it’s very unlikely to actually happen.

Safeguards:

In the EEA agreement that Norway, Iceland and Liechtenstein are a part of, much like other agreements, they have safeguard measures. These are contained in Articles 112–114 of the EEA agreement. In short, they allow a country to suspend the free movement of people. The measures include no time-limit, they are triggered unilaterally so it’s up to that country to decide if and when they are triggered and it’s up to the country to decide what meets the criteria for them being triggered. They enable a country to set an upper limit on immigration.

Precedent:

The EU has constantly told us that to be in the single market means free movement. As an EU member, that’s almost the case but as an EFTA+EEA member like Norway, Iceland and Liechtenstein it really isn’t true. Liechtenstein is the first case. Being a very small country, it used safeguard measures to control immigration and then negotiated with the EU an effectively permanent deal to put a limit on EU immigration. Iceland used them temporarily after the last financial crash to control the flow of capital. They have also been used by some former EFTA+EEA members.

Nordic Countries:

Something that’s often thrown around is the idea that Norway and Iceland accept free movement and are part of the Schengen zone so if we went for the EFTA+EEA option we would also need to accept both. The issue with both of these is that Norway voluntarily accepted both in their current form and the Nordic Passport Union makes it unnecessary to not accept them.

The EEA agreement allows Norway to participate in the EU’s single market but does not mean a country has to join the Schengen Area. Norway chose to join the zone and if the UK or any other country joined the EFTA+EEA agreement it would have to ask to join it as well, I very much doubt the UK would ask to join it. On free movement of people they have safeguard measures on immigration as mentioned above so they can suspend free movement of people if they wanted to.

The Nordic Passport Union is a passport free zone which allows the free movement of people between the Nordic countries. It therefore means anyone from a Nordic country is free to live and work in any other Nordic country. The issue is as Nordic countries already have passport free travel and free movement to live and work in other Nordic countries through the agreement so there isn’t any point in restraining free movement. If anyone wanted to get into Norway from an EU country, all it would take is to go to another Nordic country and into Norway. The disadvantages for them are very few and far between. By being part of the Schengen Area and through accepting free movement of people they on the other hand gain a better relationship with the EU.

A Future Relationship:

Next is how the UK can use these measures after it leaves the EU. First we copy the Norwegian model of cooperation with the EU by being inside the single market but not being an EU member. This is known as the EFTA+EEA model and it would take the agreement of all EU members. Once we have this it’s all the permission the UK would need.

We would then go ahead and trigger safeguard measures. The EU would then have the ability to retaliate against these measures however according to Article 114 “Priority shall be given to such measures as will least disturb the functioning of the EEA” so it’s likely that the measures will probably not affect the functioning of the four freedoms on the EU’s side of things. If the EU does decide to take this up with the UK then it could take the UK to the EFTA court and the UK could make it’s case there.

The UK could then use these measures to control our relationship with the EU. “Safeguard measures may in principle be applied by governments in the realm of the four internal-market freedoms and state aid”. This would cover almost every area of the agreement between the EU and the UK aside from on new regulations so it would give us far more control. On new regulations, the UK can shape regulations in global bodies and in the EEA joint committee.

http://www.efta.int/media/documents/legal-texts/eea/the-eea-agreement/Main%20Text%20of%20the%20Agreement/EEAagreement.pdf