Retracing the Right to Free Movement: Mapping a Path Forward?

Abstract

As a founding principle of the EU, a prerequisite for the exercise of most other EU rights, and a key component of EU integration, the freedom of movement right has carried great political and practical importance. It has also been one of the most contested, politically abused, and poorly understood of EU rights, particularly in the context of mobility of nationals from Central and Eastern Europe (“CEE”). Notably, misinformation regarding the free movement right that was spread by the media, politicians, and the public helped to propel both the UK’s renegotiation of its EU membership and, ultimately, its exit from the Union. Other EU-15 State politicians have also been perpetuating myths about freedom of movement and immigration. Scholars addressing free movement, even in the context of Brexit, have devoted little attention to this right’s conceptualization as it has evolved over time, to how EU branches other than the European Court of Justice have approached it, or to how CEE nationals have been positioned and impacted by mobility’s legal framework. Although some critical scholars have critiqued derogations from the free movement right imposed on CEE nationals in the aftermath of their States’ accession to the EU, they have also failed to situate their analysis within a broader look at the creation and application of the legal framework behind mobility. CEE movers in the UK and other EU-15 States have tended to be racialized by the media, politicians, and the public – that is, described and approached by individuals and institutions in ways which denigrate or assume their inferiority. Hence, several tenets of critical race theory (“CRT”) and critical whiteness studies (“CWS”) that expound the relationship between race, power, society, and law are helpful to the analysis of their mobility. This Article argues that the freedom of movement right has always been limited, and that CEE nationals’ mobility rights have been especially restricted by both EU statutes and case law – and further impeded by restrictive Member State policies. Ultimately, the right of free movement has been created and consistently applied in a way as to benefit EU-15 States’ economies, while approaching CEE movers as mere units of production. This broader understanding of this right is necessary to make Brexit negotiations more meaningful, and debates about intra-EU movers in other EU-15 States more responsible. Moreover, the discussion here also critiques CRT and CWS for overlooking the significance of immigrant background and of white minority ethnicities in the conceptualization and experience of equality. I suggest that both theoretical frameworks need to not only look beyond the black-white binary, but also consider contemporary transnational power dynamics to arrive at a more flexible and nuanced picture of micro-level racial and ethnic power relations in today’s globalized world.