June 1, 2013
by Petros Fassoulas |||
Imagine you are a UK citizen living in another EU Member State, let’s say Germany. You moved there for work in April 2007 and you were gainfully employed until April 2009, when you were made redundant. Throughout your employment in Germany you paid taxes and national insurance contributions, yet your claim for income-based jobseekers’ allowance was refused on the grounds that you did not have a right to reside in Germany. If Germany had applied EU social security coordination rules, those citizens confirmed as habitually resident in Germany would enjoy the same protection as habitual residents in other EU Member States. Germany refusing to pay unemployment benefits is unlawful and against your EU rights.
This is what has been happening in the UK. The European Commission, which is there to ensure that all Member States apply EU law and protect the rights of all EU citizens, has received several complaints from EU nationals that are habitually resident in the UK but have been denied access to the UK social security benefits because they do not meet the “right to reside” condition in UK law. The problem is also the subject of a number of petitions to the European Parliament, another right bestowed upon EU (including UK) citizens by EU law.
Under EU law, the social security benefits in question have to be granted to people from other EU Member States on condition that their place of habitual residence is in the UK (the ‘habitual residence’ test). This condition, and the criteria for the determination of habitual residence, were unanimously reaffirmed by all Member States in 2009 (including the UK) as part of an update of EU rules on social security coordination(1). According to these criteria, in order to be considered genuinely habitually resident in a Member State, a person has to show that his or her habitual centre of interest is located there.
But irrespective of what the UK signed up to in Brussels, it applies a so-called “right to reside” test, as a result of which EU citizens cannot receive specific social security benefits to which they are entitled to under EU law, such as child benefits for example.
The “right to reside” test is an additional condition which has been imposed unilaterally by the UK. According to the Commission, “UK nationals have a “right to reside” in the UK solely on the basis of their UK citizenship, whereas other EU nationals have to meet additional conditions in order to pass this “right to reside” test”. This means that the UK discriminates unfairly against nationals from other Member States. The Commission argues that “this contravenes EU law on the coordination of social security systems which outlaw direct and indirect discrimination in the field of access to social security benefits”.
The Commission asked the UK in September 2011 to end discrimination against EU nationals, but to no avail. So, after several formal and informal contacts between the European Commission and the UK authorities, the Commission has decided to refer the UK to the European Court of Justice because it is in breach of EU law. Which bring us where we are today.
It is important to note that the criteria laid down by EU law are strict enough. A thorough and strict application of these criteria for determining habitual residence constitutes a powerful tool for Member States to make sure that these social security benefits are only granted to those genuinely residing habitually within their territory. So there is no need for the extra test the UK has imposed.
Not to mention that the UK government agreed to these rules in 2009, acting on behalf of Parliament and with its democratic consent. To talk like this is a decision imposed upon the UK, in an undemocratic fashion, is disingenuous, to put it mildly.
But it is consistent with the nature of the debate around immigration, the right for free movement in the EU, access to social benefits and ultimately EU membership. All these issues are intimately linked in the minds of those that want the UK to leave the EU and are used in an effort to promote their aims. The facts are never allowed to get in their way, even when they have to do with democratically decided law.
The question of free movement of labour, and the contribution citizens of other EU member states that live and work in the UK make, is an important one. It is not just part of the debate around Britain’s membership of the EU. It is also at the core of the kind of country and economy we want to live in. An open, confident, outward looking one or one that is insecure, ready to close itself off and start chasing windmills.
Demonising immigrants, who make a considerable contribution to the economy and the tax and welfare systems, is counterproductive (2).
Even if it is perceived as a way to gain short term political favour with the electorate it can only be harmful economically, socially and politically in the medium and long term. It plays into the hands of those that use extreme-right rhetoric when referring to people from other countries. Speaking in their terms, instead of challenging their demagogical rhetoric, hides only political dangers.
Eurosceptics will use this case to hit their chest and repeat their claims that the UK must leave the EU. The Work and Pensions Minister Ian Duncan Smith has vowed to fight the case all the way, which means that he intends to do whatever possible to break the law and go against what the UK agreed on, freely and with the consent of Parliament. The facts will be ignored and the rights of citizens will be put aside. Ironically, on the same day, the Commission announced that it is taking Spain to the ECJ because it refused to provide British citizens free healthcare, one of the many rights British citizens are entitled to under EU law. But that is unfortunately small print.
Note: Whereas EU law on the free movement of Union citizens ((Directive 2004/38/EC) does allow Member States to restrict access to social assistance, EU rules on coordination of social security do not allow for restrictions on social security benefits in the case of EU nationals that are workers, direct family members of workers or habitually resident in the Member State in question.
(1) Regulation EC/987/2009 laying down the implementing rules for Regulation EC/883/2004 on the coordination of social security systems.
(2) A study by Christian Dustman, from the UCL’s Centre for Research and Analysis of Migration, found that in the year to April 2009 workers from Eastern Europe contributed £1.37 in taxes for every £1 of services they used. Native Britons on the other hand contributed just 80 pence for every pound of services they consumed.
Author : European Movement UK