Overview and pre-Brexit position
The Free Movement Directive lays out the principles on which Freedom of Movement (FoM) of people operates. EU citizens have the right of free movement to other member states (that is, to live and work where they choose).
Non-EU members that enjoy FoM include citizens of the EEA countries: Norway, Iceland and Liechtenstein. In addition, non-EU, non-EEA Switzerland has a separate agreement with the EU that permits FoM but also allows a brake to be applied.
The Directive does not mean open borders. Border controls are a separate issue. For example, before Brexit, this meant:
- there were UK border checks on all foreigners entering, including those from the EU, because the UK had opted-out of the Schengen passport-free travel agreement;
- the UK, as all EU member states, set its own policy for immigration from non-EU countries.
EU rationale for free movement
The EU justifies free movement of persons because it:
- Makes the single market work efficiently:
- improves productivity through labour moving to where the jobs are
- allows firms and public bodies to recruit from an EEA labour pool
- Promotes economic growth and labour flexibility (avoids national preference for jobs)
- Strengthens the value of EU citizenship and treats all EU citizens the same
- Builds cohesion among member states: cultural exchange and understanding
- Encourages political unity and peace: prevents conflict through integration
- Reciprocal benefits: each member state’s citizens gain the same right elsewhere
- Rules-based system: certainty and predictability
The Treaties set out the EU’s rationale for free movement of persons within the EU:
- Article 3(2) Treaty of the European Union (TEU) – Free movement without internal frontiers:
- The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.
- Article 26(2) Treaty on the Functioning of the European Union (TFEU) – Free movement without internal frontiers is integral to the internal market:
- The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.
- Article 45 (1) TFEU – Free movement of workers
- Freedom of movement for workers shall be secured within the Union.
- Article 49 TFEU (extract) – Freedom of establishment of self-employed persons
- Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms
- Articles 20–21 TFEU – Free movement as a citizenship right for all EU citizens (see box below)
- Article 18 TFEU – Non-discrimination enabling effective mobility
- Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
EU rules and controls
Under the 2004 Free Movement Directive (see panel below), EU citizens may reside in another member state for up to three months without conditions. Afterwards, residence may continue if the individual is working, studying, self-sufficient, self-employed, or, with some conditions, actively looking for work. If not, deportation may follow.
The UK had not implemented controls to assess whether EU citizens in the UK were meeting these requirements. However, some EU countries, such as Belgium, use the powers flowing from the Directive to deport EU citizens who are not economically self-sufficient.
In addition, EU jobseekers in the UK had limited access to out-of-work benefits. They received no Jobseeker’s Allowance for the first three months of their stay; then, their entitlement was to a maximum of 90 days’ support. The allowance was small and not viewed as a magnet for EU migrants.
Schengen
Schengen removes border controls for movement of citizens between member countries.
- UK was not a member of Schengen because the UK had an opt-out.
- Ireland also has an opt-out, but UK and Ireland have their own Common Travel Area;
- Ireland has requested to participate in the Schengen Information System as well as judicial and police cooperation.
- Cyprus is the only other EU member state that is not in Schengen it intends to join.
- Four non-EU countries have opted in and are associate members of Schengen: Iceland, Liechtenstein, Norway and Switzerland.
Schengen does not give a ‘free pass’ to refugees. Refugees arriving in EU countries often receive a temporary permit while awaiting grant of asylum status. This permit does not usually allow them to move between Schengen states. For example, refugees admitted to Germany or Greece had no right to live in the UK. Over the longer-term, if they became EU citizens (after about six years), they would have gained those rights.
Ten Schengen members have recently reintroduced temporary border controls. These internal border controls are a last resort, restricted to a maximum of two years, with a possible exceptional extension of six months.
At the end of December 2025, these countries had reintroduced temporary controls: Austria, Denmark, France, Germany, Italy, Netherlands, Norway, Poland, Slovenia, Sweden. See here for details.
Posted workers
Posted workers are workers that an employer sends from one EU member state to work temporarily in another. In May 2018, the European Parliament amended laws on posted workers to entitle temporary overseas workers to the same minimum pay as those in the host country. Posted workers will also be able to benefit from regional or sector-specific collective agreements.
This closed a loophole that enabled exploitation of potentially vulnerable workers. Employers now also need to pay for travel, board and accommodation, rather than deducting these costs from wages, and to make sure accommodation meets local standards. There is a limit of 12 months to postings, with the possibility of a six-month extension.
Member states had two years to enforce the rules. The deadline fell during the UK’s Brexit transition period, which ran until 31 December 2020.
Source: Free Movement Directive, The Schengen area