EEA workers’ free movement and social rights after Dano and St Prix: Is a Pandora’s box of new economic integration and ‘contribution’ requirements opening?

Abstract

Union citizenship, and the equal treatment and anti-discrimination provisions in the Treaties and secondary measures like the Citizens Directive, were intended to underpin free movement and ensure that nationals from the European Economic Area will generally enjoy comparable social rights to those of host State nationals, albeit subject to limitations and conditions. Whilst primarily directed at the economically inactive and those seen as failing to ‘contribute’ and reciprocate for the host community's support, the restrictions can leave a number of vulnerable groups at risk of exclusion from support. This includes those with family and caring responsibilities who may struggle to balance those responsibilities with expectations of labour market participation. The article considers these points and the evolving regime, important developments like the St Prix and Dano cases in the Court of Justice of the European Union, and the increase in restrictions, including the introduction of minimum income thresholds. It also considers the surge in anti-migrant, anti-EU, and anti-welfare feeling that preceded the May 2015 General Election in the UK, and the impact this has had on the domestic political agenda – what some commentators have called ‘the UKIP effect’. This has become a significant driver for policy change, with all of the UK's main political parties now signed up to a bar on EEA nationals' access to assistance in most of its forms, including social housing and in-work tax credits, pending satisfaction of integration criteria, notably periods of employment ranging between two and four years. As the article considers, it is difficult see how such differential treatment between EEA residents and host State nationals can be justified, especially in the light of reliable and authoritative evidence of the sizeable scale of EEA nationals' contribution to the economy. Furthermore, implementation would not just be divisive, it would be highly problematic.

Keywords::

• EEA nationals
• social rights
• economic integration
• free movement

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

^1. Most schemes of assistance, including Income Support (see the Income Support (General) Regulations 1987/1967, reg. 21AA), provide for claimants to be treated as a ‘person from abroad’, and barred out of support, unless they can show they have such status or come within one of the other categories of ‘qualified person’ in the Immigration (European Economic Area) Regulations 2006, SI 2006/1003, reg 6(1). Reg 6(2), (3) gives effect to Dir 2004/36, art 7(3) by providing for retention of that status in circumstances where it might otherwise be lost, for example during periods of temporary inability to work as a result of illness or accident: but until St Prix a right of retention did not extend to women who cease work on account of their pregnancy.

^2. Income-related benefits as well as in-work support in the form of income transfers to low-pay groups, is very much in line with the kind of measures envisaged by the International Labour Organisation’s Social Protection Floors Recommendation, implementing the Bachelet Report (Bachelet, M et al., Social Protection Floor for a Fair and Inclusive Globalisation, Geneva: ILO, 2011). As that report noted, even in countries with developed social protection systems there can be some significant ‘gaps’ in protection, including those affecting migrant workers and their families.

^3. The MET earnings threshold is linked to the Class 1 National Insurance Contributions Primary Threshold, which is £153 a week (£7956 a year) in 2014/15. In Tier 1 cases, if an EEA claimant’s average earnings over a three-month period are at or above that level she or he will be automatically treated by decision makers as satisfying ‘worker’ status. If they are below that level (Tier 2) they will consider cases more closely, having regard to factors like the work’s regularity and the hours worked, and so forth; see the guidance in DMG 1/04 JSA (IB) – Right to Reside – Establishing whether an EEA National is/was a ‘Worker’ or a Self- Employed Person’; and Housing Benefit Circular HB A3/2014: Minimum Earnings Threshold’. Assisted by guidance on EU sources and cases, a decision is then made as to whether the work being undertaken is sufficient to justify worker status, and in particular whether it is ‘genuine and effective’ because it is not on such a small scale as to be ‘marginal and ancillary’.

^4.Trojani v Centre Public d’Aide Sociale de Bruxelles (C-456/02) [2004] E.C.R. I-7573; [2004] 3 CMLR 38, para 45.

^5. The Immigration (European Economic Area) (Amendment) (No.3) Regulations 2014, SI 2014/2761, for example, reduced the period in which jobseekers, including lone parents, become subject to restrictions through the ‘genuine prospect of work’ test from 182 to 91 days.

^6. Under the Housing Benefit Regulations 2006, SI 2006/213, reg 10(3B) an EEA national claiming JSA could avoid ‘person from abroad’ status, and access Housing Benefit. This changed, however, when the Housing Benefit (Habitual Residence) Amendment Regulations 2014, SI 2014/539 removed this right jobseeker status was the only basis for their RtR. The response of the Department of Work and Pensions to the concerns of the Social Security Advisory Committee about this was revealing. It said the changes ‘deter EEA migrants from coming to the UK if they do not have a firm or realistic chance of securing work’, and those planning to come to the UK, ‘should ensure that they have sufficient resources to pay for their accommodation needs, as well as other support that they or their family may need’. It said that the ‘best option’ for those unable to find work, or who lacked savings or support networks, and who were at risk of ending up destitute, was to ‘return home’; see the Housing Benefit (Habitual Residence) Amendment Regulations 2014 Report by the SSAC and Statement by the Secretary of State for Work and Pensions, HM Stationery office, November 2014, paras. 6, 7.

^7. EEA nationals who do not have, or have lost, a right to reside and who have become a ‘restricted person’ under s.184(7) of the Housing Act 1984, are barred out of homelessness rights; Lekpo-Bozua v Hackney LBC [2010] H.L.R. 46, CA.

^8.Trojani v Centre Public d’Aide Sociale de Bruxelles, note 4, at para. 15 of the judgment.

^9. For a fuller discussion of the MET and the scope for a legal challenge, see D. Routledge ‘Could the Earnings Threshold for Benefits be in Breach of EU Law? Lexis PSL Immigration, 7th March 2014. Interestingly, EU officials reportedly made it clear, ahead of the MET’s introduction, that the change was likely to be unlawful Financial Times, 20th February 2014).

^10. The manifesto has, in fact, widened the Prime Minister’s proposal. Besides the four-year ‘wait’ the ban will extend to social housing and Universal Credit (once it has been rolled out nationally). Those who have failed to find work after six months will be removed. Reform of EU free movement will ‘at the heart’ of renegotiation of Britain’s relationship with the EU. As the PM backed down on earlier proposals to introduce a ‘cap’ on entrant, the focus is now on welfare and removing ‘incentives for people to come to the UK’; see ‘BBC Manifesto Watch: Where Parties Stand on Key Issues’, BBC, 10 February 2015’ (last accessed 11th February 2015).

^11. ‘Tough and Fair Immigration Rules’ (section ‘Earned Entitlements: People Coming Here Won’t be Able to Claim Benefits for at Least Two Years’) in The Issues: Our Policies to Make Britain Better, London: The Labour Party, 2015 (last accessed 10 February 2015).

^12.The Pregnancy Test: Ending Discrimination at Work for New Mothers, London: Trade Union Congress, November 2014.

^13. ‘Are Women Afraid of Employers over Maternity Benefits?’ HR Review, 13 November 2014 http://www.hrreview.co.uk/hr-news/reward-news/are-women-afraid-of-employers-over-maternity-benefits/54106 (accessed 10 January 2015). According to research by Slater and Gordon six in 10 mothers felt ‘sidelined’ as soon as they announced to employers they were pregnant (Maternity Discrimination, August 2014).

^14. Council Directive 92/85/EEC of 19 October 1992 on the Introduction of Measures to Encourage Improvements in the Safety and Health at Work of Pregnant Workers and Workers who have Recently Given Birth or are Breastfeeding (10th Individual Directive within the Meaning of Article 16 (1) of Directive 89/391/EEC).