David Cameron said last week that Britain will try to limit EU migrants’ access to the UK’s welfare system, within the current rules. His statement comes one month before Bulgarian and Romanian immigrants gain the right to work in Britain and other member-states, and six months before the UK Independence Party may top the poll in the European elections.
Cameron has proposed that no EU migrant living in Britain will be entitled to receive benefits until they are a resident for at least three months. Nationals of other member-states will also start to lose any entitlements they get after being out of work for six months, if they have no genuine chance of finding a job. If they are homeless or begging, they could be expelled. But the UK already qualifies EU migrants' access to benefits with a 'right to reside' and 'habitual residency' test. (The criteria for these tests vary depending on the circumstances of each individual migrant. But, broadly, both are intended to deter welfare tourism by non-workers, especially the newly-arrived.) Healthcare costs incurred by EU migrants for the first three months of residency are supposed to be reclaimed from their home governments. And the long-term unemployed and those who pose a danger to society can already be expelled by the British authorities.
Therefore Cameron must only mean that the UK will interpret the existing rules more strictly and enforce them more rigorously. However, the prime minister also wants to discuss with other EU leaders ways of qualifying the right to free movement in future. When Margaret Thatcher signed up to the 1986 Single European Act, most member-states assumed the free movement of people meant the 'free movement of workers', or migrants with existing job offers, moving between their countries. But the European Court of Justice (ECJ) ruled in the 1991 Antonissen case that the term 'worker' also meant unemployed job-seekers. The judges were perfectly right: no serious labour market can function unless people are free to move around to seek work rather than waiting to be recruited.
The Antonissen decision took on greater significance as the Union enlarged to much poorer regions in 2004 and 2007. This is especially true for Britain which has a universal welfare system where the level of entitlements is not specifically linked to personal contributions, unlike most other European countries. The ruling and the 2004 enlargement prompted the UK to introduce, respectively, its 'right to reside' and 'habitual residency' tests. And there is an extra twist in the shape of the eurozone crisis. Britain – which stood aloof from the single currency and is not responsible for its fate – still functions as a safety valve for the eurozone because large numbers of unemployed workers from its austerity-stricken periphery move there. (It does share this exposure to the crisis with other non-euro members, however, and also benefits greatly from a ‘brain-drain’ of skilled workers from Italy and other euro countries.)
The ECJ has gone on to join free movement rights to the concept of EU citizenship, introduced by the Maastricht treaty in 1992. That has resulted in such rights – including access to healthcare – being extended to the partners and families of EU nationals and, to the great relief of the British in Spain, pensioners. Again, there are good reasons for this. Workers are more likely to move around the EU if they can bring their loved ones with them. And older people who have worked up a pension in one country should be entitled to spend it wherever they like. So Spain’s young unemployed take temporary refuge in Britain, helping to man its economy, and elderly Britons get to retire on Spain’s beaches. This is free movement working well.
But ECJ rulings have also had some unintended effects on national immigration policy. For example, its 2008 Metock decision has led to an increase in fake marriages across Europe whereby foreigners marry EU citizens for money, in order to use their free movement rights in other countries, including work permits, benefits and visa-free travel to the US. (Malta even plans to sell citizenship, and therefore EU migration rights, for €650,000 per head.) The Luxembourg-based Court has staunchly upheld free movement rights in a series of cases, sometimes on what seem like weak premises to non-lawyers. One example is allowing foreigners free movement and residency rights even after their relationship with an EU citizen ends. Rulings like these mean that UK immigration tribunals will rarely expel EU nationals, or those who are or have been dependent on them, if they have already been resident in Britain for two years.
The ECJ is now qualifying its support for free movement in a number of rulings such as the Alopka case last October in which a Togolese national failed to annul a deportation order from Luxembourg despite relying on free movement rights acquired from her children. But the European Commission displayed a political tin-ear during the summer when it chose to take Britain to court over its ‘right to reside’ test. Furthermore, British civil servants worry about open legal questions concerning EU migrants' access to benefits. For example, EU workers living in Britain can receive child benefit for children not resident there. To many, that seems unfair. The British state might even have further legal responsibilities to these children as they grow up, such as offering them loans to attend university.
Such issues could be clarified by updating the EU laws that govern free movement: a 2004 directive on the rights of EU citizens and a 2009 regulation on how member-states co-ordinate their social security arrangements. Some ideas include having a single set of EU benefits available to anyone who uses their right to move around the Union; or finding a way to 'individualise' free movement rights so that only actual residents can benefit from them.
Cameron’s statement on free movement may be intended to manage a ‘nasty’ British tendency to see EU migrants as scroungers or welfare fraudsters. (Most evidence indicates they are overwhelmingly the opposite. See John Springford's CER policy brief here.) But the prime minister has also pointed to a more fundamental problem. EU countries need to create a better legal and administrative infrastructure for free movement that allows them to anticipate and manage certain issues before they become political problems. The alternative is to let the public debate rage on and leave the key questions to the courts.
Hugo Brady is the CER’s Brussels representative and a senior research fellow.
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