Right of abode

In legal parlance, freedom of movement is a person's right to free choice of residence and place of residence. Under freedom of movement are understood in the Treaty on the Functioning of the European Union and passed by reason of this Agreement secondary law, freedoms of movement for workers and the general free movement of Union citizens.

Germany

Historical Development

Even the not entered into force Paulskirchenverfassung saw the right of every German to take at any place of the territory of the Reich 's residence and place of residence.

The Constitution of the German Empire of 1871 provided for a uniform Indigenat for all of Germany. It ensured a comprehensive national treatment with subjects or citizens of other states. Accordingly, each national of a German state was to allow under the same conditions for residence in another state as a national of that State. No German was allowed in the exercise of that power by the authorities of his home State or by the authority of another state, unless provisions are restricted by caring for the poor and to ensure the military service. The Indigenat was only a formal equality law. Under what conditions was freedom of movement for all Germans in a particular state granted by the state law, imperial law did not specify.

In the Weimar Constitution of 1919 which vested in the Constitution was granted for German. For the first time the movement was firmly written content quite far. The freedom to stay at any places and settle down, but could be restricted to any constitutional purpose by Reich law.

Basic law

In Germany after 1949 Freedom of movement is guaranteed by Article 11 of the Basic Law.

Scope

Free movement is a German law. It includes the right of every German, any place in the Federal Republic to take freely and stay home and at any time enter into the Federal Republic. It does not involve the right to leave or emigration, since only the free movement throughout the federal territory is granted. The right to leave and emigrate as the free movement of aliens generally protected only as a manifestation of the general freedom of action. The negative freedom of movement includes the right not to take a specific residence or not to go to a certain place.

Limitations

One limitation of freedom of movement is possible only by or pursuant to a law, and only at certain, fixed stored in the fundamental right even purposes.

Epidemics and accidents

Allowed restrictions are followed by or pursuant to a law to combat the danger of epidemics, natural disasters or particularly grave accidents (eg evacuation ).

Protection of minors against neglect

Article 11 of the Basic Law allows further restrictions on free movement to protect young people from neglect (eg by the residence determination of the parents, the prohibition of hazardous locations or in the case of a care home ).

Prevention of criminal acts

Freedom of movement may be restricted for the prevention of criminal acts, such as by a sending off, travel restrictions, the arrangement of police surveillance or preventive detention.

Existence of the state

Furthermore, a constraint can be considered for averting threats to existence of the Federation or a Land, and for the free democratic basic order, such as entering bans for Disturbed Areas.

Special loads for the general public

To promote the financial burden-sharing, the state can also restrict the free movement of those Germans who are dependent on social assistance. Freedom of movement restrictions for this reason it was especially in the postwar period. More recently there were restrictions on ethnic German repatriates back from Eastern Europe ( 31 December 2009). These people lost their social assistance claim when they left and moved to their assigned residence. This was done to minimize the financial burdens on individual strongly affected communities in limits. In terms of ethnic Germans, the Federal Constitutional Court declared by judgment of 17 March 2004, the restriction to be constitutional.

Restrictions on free movement of unemployment benefit II recipients (without quotation of the restricted fundamental right under Article 19 Zitiergebot paragraph 1 sentence 2 GG) are fundamentally illegal. This was the conclusion about the Federal Social Court (Case No.: B 4 AS 60 /09 R) that ALG II recipients may move, even if the living space in the immigration area is more expensive. Otherwise, the principle of equality ( Article 3 of the Basic Law ) and also anchored in the constitution are vested (Article 11 GG) injured. The state is not obliged to make additional payments eg removal expenses, the actual exercise of the free movement financially.

Defense case

According to Article 17a of the Basic Law, the freedom of movement may be restricted in the case of defense.

Other purposes

One limitation by law or pursuant to a law for other purposes is not allowed. The free movement of foreigners may be restricted to any constitutional purpose by law or pursuant to a law. The stay of asylum seekers, enforceably required and tolerated foreigners is restricted by law to the state or to the district of the foreigners authority. Leaving the assigned residence area is permitted only in exceptional cases, either generally or with special permission, is prohibited and is sanctioned. Such residence is mandatory within the European Union in any country other than Germany.

The freedom to travel abroad may be limited for both German as well as for foreigners to any constitutional purpose. Thus, the exit due to the Passport Act may be refused if, for example, substantial interests of the Federal Republic of Germany are at risk of be emigrants trying to escape his Nährpflicht against members or tax obligations. For the exit, a deduction of money may be required. According to the Foreign Tax Act, for example, an entrepreneur must raise his hidden reserves for relocation abroad outside the European Union and taxable.

Switzerland

In Switzerland, the free movement of persons is guaranteed as freedom of establishment in Article 24 of the Federal Constitution, all Swiss citizens as a fundamental right.

Since Switzerland is not a member of the EU, they can - unlike the surrounding countries, all EU members except Liechtenstein - conclude bilateral free movement agreements with other countries. So she can control immigration to Switzerland ( " migration policy ").

Freedom of movement is a human right

Article 13 of the Universal Declaration of Human Rights gives everyone the right to freedom of movement within a state and freedom to choose his residence, as well as free to leave any country, including his own, and to return to his country. The Universal Declaration of Human Rights, therefore, recognizes a right of emigration to, but not an immigration law. This is a controversial issue in political philosophy.

European freedom of movement

In addition to the general freedom of movement for EU citizens under Article 21 TFEU, Article 45 of the EU Charter of Fundamental Rights is a particular expression exists in the form of the free movement of workers ( Article 45 TFEU ). The freedom of establishment ( Article 49 TFEU ) and the freedom to provide services ( Article 56 TFEU ) applicable to companies ( and self-employed entrepreneurs ). These are sometimes also subsumed under freedom of movement, however, are already conceptually not so. The same applies to the free movement of goods (Article 30, Article 34, Article 35 TFEU) and capital and payments (Article 64 TFEU).