Report - Guardian

The LSE Identity Project Report: June 2005 1652. Article 18 - Free movement of persons. Article 18 embodies the fundamentalright to move and reside freely within the EU, subject to certain limitations andconditions laid down in the Treaty and measures adopted to give it effect. Freemovement of persons within the EU is one of the basic pillars of the EU ideal. 399 Theproposal to introduce biometric data to passports may breach this Article. The principlesof Article 18 are expanded in additional EU legislation including Directive 2004/38 onthe right of citizens to move and reside freely in the EU. 400Directive 2004/38, to be implemented in the UK by 30 April 2006, confers a right ofentry and exit on EU citizens to other EU Member States with a valid ID card orpassport. 401 No requirements are provided as to what format the passport should takeother than it being valid “at least for all Member States and for countries through whichthe holder must pass when travelling between Member States.” 402 However, Article 27of the Directive imposes restrictions on the right of entry and exit on grounds of publicpolicy and public security. It is specifically stated that measures taken on these groundsmust comply with the principle of proportionality and shall be based exclusively on theconduct of the individual concerned:“[t]he personal conduct of the individual concerned must represent agenuine, present and sufficiently serious threat affecting one of thefundamental interests of society. Justifications that are isolated fromthe particulars of the case or that rely on considerations of generalprevention shall not be accepted.” 403Arguably, the general, blanket nature of the measures as introduced by the UKPS maybreach Article 27 of the Directive. The measures do not consider individual concerns,but rather treat all UK citizens as a potential threat to national security and so restrict themovement of all UK citizens entering and exiting the UK.3. Article 39 - Free movement of workers. The Treaty sets out a general principleof freedom of movement of workers to be secured within the EU. This freedomabolishes discrimination based on nationality, but is restricted to limitations on groundsof public policy, public security or public health. However, this Article does not furtherconsider how these restrictions should be interpreted. It is not clear whether anargument based on public security would justify the measures to be introduced.Rights Under ECHRArticle 8 of the ECHR guarantees the right to respect for private and family life. TheConvention prohibits interference by public authorities with that right except:399 It is also enshrined in the International Covenant on Civil and Political Rights, which entered into force 23 March1976, which the UK ratified. Article 12(1) sets out a right to liberty of movement and freedom to choose residence.Article 12(4) states that “No one shall be arbitrarily deprived of the right to enter his own country.” The Conventionallows for exceptions where necessary including to protect national security and public order.400 Directive 2004/38/EC of 29 April 2004, on the right of citizens of the Union and their family members to moveand reside freely within the territory of the Member States.401 Articles 4 and 5.402 Article 4(4).403 Article 27(2).