The pillory, the precipice and the slippery slope: the profound effects of the UK's legal reform programme targeting EU migrants

Abstract

The year 2014 was the year for restricting EU nationals' access to benefits in the UK, with a series of measures introduced since 1 January. This paper assesses each measure's compatibility with EU law, examining the legal texts and the accompanying guidance, which may lead to infringements by administrative decision makers. The paper then analyses the cumulative programme of reforms, and identifies three societal concerns. First, the programme represents a departure from EU Treaty principles. Second, the effects of the new measures are felt by all EU migrants, not just the ‘economically inactive’, since they are subject to extra tests and delays, face amplified xenoscepticism, and are placed in a more precarious position, with greater risks attendant upon loss of work. Third, the measures represent a pure form of an individualist ideology, potentially lowering our resistance to child poverty and destitution.

Keywords::

• welfare reform
• Immigration (European Economic Area) Regulations 2006
• Eurosceptic law making
• welfare state ideology
• EU migration
• European Union citizenship

Acknowledgements

Thanks for comments on earlier drafts are owed to Helen Stalford and Michael Dougan, University of Liverpool, and Adam Tucker and Simon Halliday, York Law School. Thanks also to staff at the Child Poverty Action Group and the AIRE Centre, for discussions regarding litigation strategies. I would also like to thank participants at the University of York's conference on ‘Questioning Austerity: realities and alternatives’, and those who attended the research seminar in COMPAS, University of Oxford on ‘Feeding a xenosceptic culture: legal and administrative penalties for being European’, for all the comments on related papers. All errors are of course mine.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

^1. As of 1 January 2013, 3.8% of the UK population were citizens of another EU 27 Member State (European Parliament, 2014).

^2. Contribution conditions in the Jobseeker's Allowance Regulations 1996, as amended by the Social Security (Contribution Conditions for Jobseeker's Allowance and Employment and Support Allowance) Regulations 2010.

^3. Contrary to the UK Equality Act 2010 s. 11 and s. 19 applied to s. 29 and ss. 149–150 and Schedule 19; and in EU law, Directive 79/7/EEC.

^4. In the UK in 2011 ‘women accounted for 92% of lone parents with dependent children’ (Office for National Statistics, 2012).

^5. The Immigration (European Economic Area) (Amendment) (No. 3) Regulations 2014.

^6. Pursuant to Art. 7(3) of Directive 2004/38 and Regulation 5(7) of the Immigration (European Economic Area) Regulations 2006.

^7. Pursuant to Art. 16 of Directive 2004/38 and Regulation 15 of the Immigration (EEA) Regulations 2006.

^8. Art. 2(2)(a) and Art. 3(2)(b) of Directive 2004/38; Regulation 8(5) of the Immigration (European Economic Area) Regulations 2006.

^9. See the Local Housing Allowance rate calculator at Directgov, (http://lha-direct.voa.gov.uk/search.aspx).

^10. ‘Jobseeker's Allowance (JSA)’ (https://www.gov.uk/jobseekers-allowance/what-youll-get).

^11. See European Commission, 2014, Figure 9. Figure 5 shows the UK as having the 9^th lowest unemployment assistance net replacement rate.

^12. The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 Schedule 1: Amending Regulation 6 (2)(b) of the Immigration (European Economic Area) Regulations 2006 and inserting Regulation 6(2)(ba).

^13. Equality Act 2010, s. 20 and the Framework Equal treatment Directive 2000/78, Article 5.

^14. Cf Cousins (2014, p. 95).

^15. As required in section 176(2)(a) of the Social Security Contributions and Benefits Act 1992.

^16. ‘ONS data shows the use of zero hours contracts has increased in the past 5 years.’

^17. Articles 1(1)–(2) and 13(1)(a), Regulation (EU) No. 492/2011; Commission Decision of 23 December 2002 implementing Council Regulation (EEC) No. 1612/68 as regards the clearance of vacancies and applications for employment, Art. 8(2).

^18. HL Hansard 14 Feb 2012 Column 733.

^19. HL Hansard 11 Jan 2012 Column 144; HL Hansard 14 Feb 2012 Column 729.

^20. The Tax Credit Act 2002 s.16 (2)(a)–3(b).

^21. On the relationships between job insecurity, welfare state regime and poor health see Bambra, Lunau, Van der Wel, Eikemo, & Dragano, 2014, p. 130; Benach et al., 2014; Clayton et al., 2011; Ferrarini, Nelson, & Sjöberg, 2014.

^22. SI No. 376.

^23. Regulation 97(3)(a) and (b).

Additional information

Funding

This research was conducted as part of an ESRC funded project ‘The EU Rights Project’ http://www.eurightsproject.org.uk.