(Why) Has EU Free Movement Law Gone Wrong?

EU free movement law is an astonishing success story: an ideology on its own terms; an instrumental focus for integration more broadly; and a basic reality of modern life. However,  this paper argues that free movement law faces two fundamental challenges, which can be expressed around themes of minimalism and disconnect. The concept of minimalism is engaged as a counterpoint to the array of complexities masked beneath a deceptively simplistic legal structure. That structure is founded on a spare template of basic rules, which, at one level, served very well to embed the logic of free movement rights in national legal orders. However, compression of legal rules to this extent also has the effect of mashing distinct concerns together, suggesting blunt legal solutions to very different sets of practical problems. That outcome is itself a contributor to disconnect – where the law as well as the institutions that shape and communicate it seem remote from the facts on the ground. The connections between free movement law and the European project then become more problematic, with disaffection at one level bleeding inevitably into the other. Two questions emerge: first, should free movement law change at a fundamental level; and, second, would it make any (bigger) difference?

Niamh Nic Shuibhne is Professor of European Union Law at the University of Edinburgh. She was Joint Editor of the European Law Review from 2009-2014, and remains a member of its Editorial Board. She is a Visiting Professor at the College of Europe (Bruges), where she teaches a course on EU citizenship law.