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Will Cameron’s immigration benefit crackdown clash with EU law? – The Justice Gap
August 12 2022

Will Cameron’s immigration benefit crackdown clash with EU law?

Will Cameron’s immigration benefit crackdown clash with EU law?

EU Flag, Yanni Koutomitis, Flickr, creative comms
EU Flag, Yanni Koutomitis, Flickr, creative comms

EU Flag, Yanni Koutomitis, Flickr, creative comms

The UK is to cut the amount of time EU migrants without ‘realistic job prospects’ can claim benefits for from six to three months. Writing in the Daily Telegraph, David Cameron said the ‘magnetic pull‘ of benefits needed addressing to attract people for the right reasons.

The prime minister cited other measures recently coming into force to tackle abuses – such as new powers revoking the driving licences of those not entitled to be in the country – as evidence that the government was building ‘an immigration system that puts Britain first’.

The government has been steadily tightening the criteria for which EU migrants are eligible to claim benefits after coming under political pressure. In January, it announced that EU migrants would not be able to claim out-of-work benefits until three months after arriving in the UK and would only be eligible for jobseeker’s allowance (JSA) for six months unless they have ‘genuine prospects’ of finding work. This time limit, which also applies to child tax credit and child benefit, will be halved to three months from November.

Leaving aside the frankly ridiculous assertion that migrants are ‘magnetically pulled’ to leaving their home countries at the prospect of claiming JSA at £57.35p per week, are these proposals likely to survive a European Commission review?

Recent changes
People coming to the UK from European Economic Area (EEA) countries do not have unrestricted access to UK social security benefits and tax credits. Broadly speaking, a person who moves from one EEA country to another has a right to reside in that country if they are economically active, or are able to support themselves. This applies to people from the ‘old’ EU countries as well as those from the newer accession states.

Eligibility for income-based Jobseeker’s Allowance (IB-JSA), as for most other social assistance benefits, depends on being habitually resident in the UK (see regulation 85A of the Jobseeker’s Allowance Regulations 2006). So an EEA national who arrives in the UK to look for work and who makes a claim for JSA but fails the ‘right to reside test’ (which limits benefit claims by EU nationals that are ‘habitually resident’ in the UK)will not receive the benefit, even if they satisfy all the other conditions for JSA (e.g., they are available for and actively seeking work).

There is no statutory definition of ‘habitual residence’ but factors which are already taken into account by the DWP or a local authority when considering whether a person is habitually resident include how long they have been in the country, the person’s reasons for coming here and their future intentions, what the person has done to establish themselves since arriving, their employment prospects, and where their ‘centre of interest’ lies. The test is applied by interviewing the claimant’

In December 2013, the government announced plans for a new habitual residence test, designed to protect against ‘rogue’ EU benefit claims. Previously, UK case law said that in order to be actually habitually resident, an EEA migrant would need to be voluntarily resident in the UK for a settled purpose (which was a matter of fact, and depended on whether they intended to the UK to their habitual place of residence) and second, they needed to have been resident in the UK for an ‘appreciable period’ (Nessa v Chief Adjudication Officer [1999] UKHL 41). There was no set amount of time required for an appreciable period of residence – but the DWP and domestic UK tribunals concluded anywhere between one and three months would generally be sufficient. Now as part of the government’s overall plans, the appreciable residence test has been put on a statutory footing in the case of IB-JSA. Since January 1st 2014, new claimants of JSA must demonstrate that they have been resident in the UK (or common travel area) for three months before they will be considered habitually resident.

What does EU law allow?
There are two relevant EU measures that touch on the subject: the EU Citizens’ Directive (2004/38) and the Regulation on coordination of social security systems (883/2004).

The EU Citizens’ Directive entitles any EU citizen to move and reside in another member state (including the UK) for up to three months without fulfilling any formalities (beyond presenting a passport of identity document at the UK border).

EU legislation permits the UK authorities to deny EEA migrants from benefits in their first three months of residence (Article 24(2) of the 2004 Directive). EU case law also permits the UK authorities to require EEA migrants to establish a ‘genuine link’ with the UK before being entitled to job-seeking benefits (Case C-138/02 Collins v Secretary of State for Work and Pensions).

EU case law however also prohibits member states from denying benefits of a financial nature intended to facilitate access to the labour market.In the case of Vatsouras (Case C-22/08) the CJEU interpreted Article 45 Treaty on the Functioning of the European Union (which allows EU nationals to work in another member state in an employed capacity) in such a way that a minimum subsistence allowance for jobseekers meant to facilitate access to employment in the labour market of a member state cannot be regarded as ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38/EC. Such a benefit should be granted to a person who has a genuine link with the employment market of the host Member State.

So are these changes going to be lawful?
Given that, as with most Tory policy, these changes were first announced in the press (in this case the Daily Telegraph) they are a little short on detail.

However current EU case law suggests that length of residence cannot be an absolute condition for entitlement to IB-JSA, and that any automatic refusal after three months may also violate the EU law principle of proportionality (Brey). Similarly any conditions which undermine the right to free movement for EEA nationals, or amount to discrimination on grounds of nationality will also likely to be unlawful.