The UK referendum on membership of the EU: Whither social welfare and family law?

By the time this issue is published, British citizens and residents will be immersed in intense debate and some soul searching concerning the UK’s future membership of the EU. The potential impact of Brexit on social welfare and family law has certainly not been at the forefront of either the ‘in’ or the ‘out’ campaign, but it is significant. One only has to scan issues of this journal published over the past two years for evidence of the very considerable role the EU plays in developing law, policy and other forms of assistance that impact in direct, tangible ways on our family life and socio-economic resources. Notably, the Special Issue published last year charted the EU’s forty year history of developing law and policy for working families (2015, Issue 37(3)); the European section has featured papers critiquing the highs and lows of EU migrants’ family and welfare-related entitlement (Puttick, 2015; O’Brien 2015; O’Brien this issue); whilst the cases section has included various commentaries relating to cross-border divorce and child abduction governed by EU family law. (ex. Amos and Brooks, 2014; George, 2014).

Although the EU has no competence to determine the nature and scope of domestic family law and social welfare, there are essentially three sites of law and policy in which the EU has had a decisive impact on entitlement in these areas. The first is in the context of migration. For nearly 50 years the EU has determined access to family and social welfare entitlement for those who move under the free movement provisions. Specifically, since the late 1960s, families who accompany EU migrants to other Member States have enjoyed equal access to education, employment and other social entitlement on the same basis as nationals (now governed by Directive 2004/38, OJ L158/77). Family members who can benefit from this extended provision are relatively broadly defined to include spouses, civil partners, parents, grandparents, children under the age of 21 or older children who are dependent. Indeed, it is the apparent generosity of this entitlement that has largely fuelled the ‘out’ campaign. One of the most hotly debated issues has been the ability of EU migrants who are employed or registered job-seekers to apply for welfare benefits, including child benefits in the UK, on the same basis as nationals. More controversial still is provision allowing EU migrants in the UK to claim child benefits and child tax credits for their children living in other EU countries, prompting significant fears of welfare tourism.

If the UK decides to withdraw from the EU, it will impact upon the estimated 3.3 million non-UK EU citizens currently living in the UK not only in terms of disrupting their and their families’ residence, employment and social entitlement, but also in limiting the fiscal potential of such migrants. Independent research estimates that EU migrants have contributed approximately £20bn in taxes to the UK economy in the last decade – certainly significantly more than those migrants receive in state benefits (Dustmann and Görlach, 2016) – and thereby bolster the UK’s welfare regime in favour of its own nationals. Moreover, such a withdrawal will have implications for approximately 800,000 UK workers with children living in other EU countries who will no longer automatically benefit from equal access to family-related support there.

If the UK votes to remain in the EU, the family-related entitlement of EU migrants is still likely to be curtailed by a newly negotiated EU framework that will change the amount to which foreign parents in the UK can claim for their children living in other EU countries (although it is worth noting that currently less than 1% of EU migrants in the UK claim benefits for children living abroad – Kennedy, 2014). Instead, child benefit will be indexed in relation to the standard of living in the country where the child is based. The government has also negotiated an ‘emergency brake’ which could limit access to in-work benefits (including child benefits and social housing) for new EU migrants until they have worked and paid taxes for four years. These developments are the latest in a catalogue of welfare reforms, introduced since 2013 that significantly restrict EU migrants’ access to benefits. The most bruising reforms already introduced include: a three month prior residence rule for Jobseeker’s Allowance, Child Benefit and Child Tax Credit; the withdrawal of Housing Benefit for all EU jobseekers; the introduction of a three month cut-off for Jobseeker’s Allowance; and the introduction of a minimum earnings threshold before work can be classified as work for the purposes of accessing in-work benefits (O’Brien, 2015).

The second area affected by the EU is in relation to employment, specifically the ‘complex array’ of legal and policy measures enacted since the 1970s to enable workers to reconcile work and family life (Caracciolo di Torella, 2015). Parental leave, the health and safety of pregnant and breastfeeding workers, thresholds of healthy working hours, maternity leave and broader non-discrimination measures have all been brought about as a direct result of EU law. Similarly, the EU has supported sustained initiatives to collect comparative data, stimulate cross-national policy exchange and set domestic targets relating to the availability and accessibility of child care provision, a key factor influencing women’s labour market participation and child well-being (Masselot, 2015). While there is still some way to go before such measures impact persuasively on culturally entrenched, highly gendered patterns of working and parenting (Masselot, Caracciolo di Torella and Burri, 2012), there is absolutely no evidence to suggest that the UK would deliver something more equitable in the event of EU withdrawal.

The third and most recent area of EU activity in the field of family and social welfare law is in the context of divorce, parental responsibility, abduction and maintenance proceedings of a cross-national nature. It was at the turn of the millennium that the EU acquired specific competence to enact binding, directly effective laws to achieve automatic recognition and enforcement of matrimonial and parental responsibility decisions across EU Member States’ borders in these areas (now governed by Regulation 2201/2003 otherwise known as ‘Brussels IIbis’; and Regulation 44/2001 otherwise known as ‘Brussels I’) . Such instruments are credited for facilitating the free movement of decisions to accompany the suite of other free movement rights of persons, services and capital, and for introducing a greater level of certainty and expediency for families caught up in cross-national family disputes. If the UK were to leave the EU, the most likely option would be to revert to the regulatory framework of private international law (such as the 1980 Hague Abduction Convention) that previously governed intra-EU cases and that still operates in parallel for those countries outside the EU. This is not significant leap insofar EU instruments are heavily informed by and remain closely linked to the Hague instruments regime in terms of their substance; but the procedure that comes with EU-harmonisation in this area – in terms of expediting automatic recognition and enforcement of decisions across countries – would be less slick and would no longer benefit from the supra-national scrutiny (and one would hope independent wisdom) of the EU’s Court of Justice.

In summary, the greatest family and social welfare-related fears underpinning the Brexit campaign – those relating to migration and alleged benefits tourism – have already largely been addressed through the various welfare reforms already brought into play by this government. Evidence suggests that the potential disruption UK withdrawal would cause to the broader landscape of EU family and social welfare provision – migrants’ entry and residence entitlement, working parents’ employment rights and experiences, their access to basic services and the portability of family-related decisions - will be profoundly adverse, not only in terms of the collective social and economic security of the nation, but also in terms of the emotional and relational well-being of individuals and families.