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EU member states, the European Parliament and the European Court of Justice could overturn or water down the draft proposals. IPPR assess the areas of contention.

As this week’s European Council meeting approaches, there are still significant challenges ahead for securing an agreement on changes to free movement rules, according to think tank IPPR. While major progress has been made by the government since the previous European Council meeting in December, there are a number of risks that threaten to unravel the deal.

We outline the notable signs of success for the renegotiation on free movement reforms and highlight the key risks and problems ahead:

Signs of success

• Changing direction on free movement
The broad direction of travel on intra-EU migration policy over recent decades has been towards facilitating labour mobility and expanding free movement rights. From this perspective, the proposals in the draft deal suggest a major change in direction on free movement. Given the low saliency of this issue in other member states, this suggests that the UK has single-handedly shifted the policy debate considerably on free movement.

• Tentative support from other member states
Earlier this year, member states (particularly in Central and Eastern Europe) ruled out restrictions on in-work benefits for EU nationals on the grounds that such a policy would be discriminatory. Signs of tentative support for the draft deal's 'emergency brake' - which allows restrictions on in-work benefits in certain circumstance - indicate a significant shift of opinion.

Risks and potential problems

• Risk of last-minute disagreements
There is a risk that some member states will try to water the deal down further at this week's European Council meeting. Some Central and Eastern European member states have signalled that they want to ensure that the free movement changes – including the indexation of child benefit and the emergency brake – to only apply to the UK. Such a change would not be particularly problematic from the UK’s perspective. But further disagreements are a distinct possibility – for instance on the question of whether the proposals should apply to only new EU migrants or those already in the UK, or on the question of whether child benefit should be included as a form of in-work benefit for the purposes of the emergency brake.

• Blockages in the European Parliament and the ECJ
Even if EU leaders agree to the deal this week, in order for the main reforms to free movement to become law they have to be approved by the European Parliament, where MEPs may try to make significant amendments to the proposals. They also may be challenged before the European Court of Justice – the emergency brake is particularly susceptible to legal challenge as it would allow for the restriction of in-work benefits, which appears to conflict with the EU treaties.

Marley Morris, IPPR Research Fellow, said:

“It is clear from the draft deal unveiled by Donald Tusk that David Cameron has made considerable progress in moving sceptical EU members states towards his position on issues like free movement. But there are still significant hurdles. The European Council summit, starting on Thursday, could water down the deal, and there could be further challenges down the line in the European Parliament and at the European Court of Justice.

“This means there are still significant hurdles for the Prime Minister to overcome, if the Tusk draft proposals are to become law. If the Prime Minister is unable to deliver this week, it may affect the finely balanced debate in the UK.”

Notes for editors:

IPPR has published two briefings on how the Prime Minister can negotiate changes to EU free movement rules as part of the current negotiations:

On changes to EU migrants’ access to benefits: http://www.ippr.org/publications/freedom-of-movement-and-welfare-a-way-out-for-the-prime-minister

On changes to free movement rules relating to crime, public services, labour markets, and integration: http://www.ippr.org/publications/unlocking-the-eu-free-movement-debate