David Cameron raises the stakes in political and legal standoff with European Commission over EU migrants access to benefitsSummary: In response to public and media concerns over the lifting of transitional controls on Bulgarian and Romanian migrants in January 2014, David Cameron has announced a range of measures designed to tighten the rules on EU migrants access to benefits in the UK. These include a three-month qualification period for benefits, which would then only be payable for six months. In addition, European migrants falling below a certain income threshold would lose access to some benefits and newly arrived EU jobseekers would not be able to claim housing benefit. He has also suggested further changes to deal with new countries joining the EU and changes to EU law on the requirement to pay child benefit to children living abroad.
Cameron has insisted that all the immediate measures the Government is taking comply with the existing EU treaties. The European Commission has yet to say whether it thinks the proposals are legal. However, its clear that the UK Government is reaching the limits of what it can do under EU law as it stands.
To complicate matters further, the UK is already locked into an ongoing legal dispute with the European Commission over the rights of EU migrants to access the UKs universalist welfare system. Camerons recent intervention signifies a definite hardening of tone and position in this dispute, and in response EU Commissioner Laszlo Andor has said that the UK risks being seen as a nasty country.
To be critical, in his most recent intervention Cameron devotes a lot of time to discussing unilateral UK changes, but he does not directly address the fundamental issue at stake: that the UK and other countries are potentially in conflict with EU rules on access to benefits because these rules are no longer fit for purpose in an EU with a much wider group of countries with different welfare systems and levels of prosperity.
Whilst the Prime Ministers political stand is understandable, the UK needs allies to change the EU rules and should concentrate its efforts in future on marshalling other member states in favour of reform to ensure more flexibility for national governments to impose domestic safeguards for their welfare systems. The legal process with the European Commission could take several years but if the UK were to lose its ongoing battle at the European Court of Justice it could pose a major political blow ahead of any EU referendum in the UK.
What else could the UK propose?
In order to maintain any public confidence in EU free movement it is essential that EU rules respect differing national welfare systems that have developed through national democratic choices. Open Europe has suggested the following reforms to the EUs rules on access to benefits to establish a better link between economic contributions and access to benefits across the EU:
1) Rights of EU migrants to reside in another member state should be more closely linked to being in work or self-sufficient. This could be achieved by removing the right of residence as a job seeker unless someone has been previously employed in the UK for a certain period. When determining whether an EU citizen is a burden on the welfare system, national governments should be allowed to apply general thresholds for the income/resources that person is required to have. National discretion to set these rules should explicitly apply to all state welfare.
2) Secondly, the rules on family benefits should be tightened so that people cannot claim for benefits such as Child Benefit if their child is not living with them in the UK.
3) The requirement for equal treatment with UK nationals should be removed for EU citizens without a permanent right of residence in the UK when it comes to the provision of state welfare that is in particularly scarce supply, such as social housing.
What is EU free movement?
The free movement of people and workers within the EU has the potential to boost growth and competitiveness in both the UK and Europe. In addition, the ability for companies based in the UK to easily draw on a wide talent pool is seen by many firms as an advantage. However, free movement also throws up a huge number of political challenges, such as increased competition in low-skilled sectors of the labour market, the potential for downward pressure on wages over the short term, and increased demand for public services and infrastructure.
When referring to the free movement of people within the EU, it is important to distinguish between, on the one hand, the right to move freely and, on the other, the rights and responsibilities of people who move between EU countries (i.e. their ability to claim welfare benefits). The two issues are linked but politically and legally distinct. While the right to move is locked into the EU Treaties and difficult to change other than by withdrawal from the EU, the rules on access to welfare have developed largely due to European Court of Justice case law and secondary legislation on the rights of EU citizens.
EU legislation and case law sets down a complex system of what EU migrants are entitled to and what rules national governments can put in place to safeguard their welfare systems:
Is David Cameron alone?
No. If sold as EU-wide reform, the UK already has the support of Austria, Germany and the Netherlands, for an overhaul of the existing EU rules on access to welfare, particularly the ability for newcomers to claim benefits in another member state.
However, changing the EUs legislation on access to benefits will not be easy as it would require a qualified majority in favour among national governments and a majority in the European Parliament. If majorities could be secured, the legislative p rocess could take a year or more. This is a long-standing issue of contention between some national governments and the European Commission. In June 2011, ministers from 13 member states, including the UK, Denmark, Germany, Ireland, the Netherlands and Sweden, called for the concept of residence and the interaction between the Free Movement Directive and the EU Social Security Regulation to be further discussed with a view to considering amendments to the current legislative framework, should these be deemed necessary.
What is David Cameron proposing?
David Cameron has announced several measures to tighten the rules on free movement and access to welfare, some of which would be more or less immediate and others which would be for future negotiation. Contrary to some media reports, David Camerons proposals would not apply solely to Romanian and Bulgarian migrants but would apply to all EU migrants. Below are the main proposals:
1) We are changing the rules so that no one can come to this country and expect to get out of work benefits immediately; we will not pay them for the first three months. If after three months an EU national needs benefits we will no longer pay these indefinitely. They will only be able to claim for a maximum of six months unless they can prove they have a genuine prospect of employment.
These are changes that the Prime Minister announced in March 2013 and essentially set down the existing rules within the EUs Free Movement Directive and are already being brought into effect. They will ensure that UK domestic law contains stronger provisions to enforce the existing Directive.
2) We are also toughening up the test which migrants who want to claim benefits must undergo. This will include a new minimum earnings threshold. If they dont pass that test, we will cut off access to benefits such as income support. Newly arrived EU jobseekers will not be able to claim housing benefit.
This refers to a toughening up of the UKs habitual residence test that is applied to all people trying to access benefits in the UK. Under existing EU law, within certain parameters, the UK is able to apply different rules to UK nationals and EU migrants when it comes to accessing housing benefit.
However, the use of a minimum earnings threshold could fall foul of the EU rules unless it corresponds to an equivalent threshold applied to UK citizens receiving benefits. In addition, the European Commission classifies income support as a social security benefit and therefore argues that the UK cannot apply its right to reside test to this benefit as it currently does. This proposal will only intensify the legal stand-off.
3) If people are not here to work if they are begging or sleeping rough they will be removed. They will then be barred from re-entry for 12 months, unless they can prove they have a proper reason to be here, such as a job. We are also clamping down on those who employ people below the minimum wage. They will pay the price with a fine of up to £20,000 for every underpaid employee more than four times the fine today.
The increased fine for those breaking national minimum wage laws is a purely domestic measure. The ability to expel EU migrants under EU law is very narrow. However, the Free Movement Directive does allow national governments to remove people if they are not in work or if they cannot provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged. It is unclear whether the 12-month ban on re-entry would be recognised by the European Commission.
Changes for the future
4) For example, free movement should not be about exporting child benefit I want to work with our European partners to address this.
As David Cameron sets out, this would require a change to the existing EU regulations on social security and achieving this is dependent on gaining qualified majority of national governments and the agreement of the European Parliament.
5) We must put in place new arrangements that will slow full access to each others labour markets until we can be sure it will not cause vast migrations One would be to require a new country to reach a certain income or economic output per head before full free movement was allowed. Individual member states could be freed to impose a cap if their inflow from the EU reached a certain number in a single year.
David Cameron is referring to new transitional arrangements that could be applied to new EU member states. Applying new transitional arrangements would be fully possible because every new accession to the EU requires the unanimous agreement of all existing members. So, in this scenario, the UK would have very strong negotiating leverage and a number of other member states would be likely to support it.
The proposal for a member states to impose a cap on the inflow of migrants could, in theory, also be negotiated relatively easily if it applied solely to new countries joining the EU. It would, however, be much more difficult if the UK wanted to get agreement that this cap could apply to migrants from existing EU member states.
What is the ongoing legal dispute between the UK and the European Commission?
However, as noted earlier, the UK and the European Commission have already been locked in a legal battle for more than a year over the UKs existing right to reside test which it applies to EU migrants claiming certain benefits. Essentially, the European Commission thinks that more of the UKs welfare system should be open to EU migrants without the need to satisfy UK residency tests. The UK argues that the test is needed to ensure people cannot abuse its non-contributory universalist welfare system.
The announcements made by David Cameron today highlight that the UK is in the process of strengthening its domestic tests and therefore there is no sign of an end to the ongoing legal battle with the European Commission. The legal process could take several years but if the UK were to lose its battle with the European Commission at the European Court of Justice it could pose a major political blow ahead of any EU referendum in the UK. Alternatively, if the UK is successful in marshalling other member states in favour of reforming the EUs rules to ensure more flexibility for national governments to impose domestic safeguards, it will be an important victory and the European Commission would have to drop its legal challenge.
Further reading:
For more on the legal dispute between the UK and the European Commission:
http://www.openeurope.org.uk/Article...=PressReleases
Tread carefully: The impact and management of EU free movement and immigration policy:
http://www.openeurope.org.uk/Content...on2012_new.pdf
Open Europe submission to the UK Governments Balance of Competence Review Free Movement of Persons:
http://www.openeurope.org.uk/Content...of_Persons.pdf
Bron: politics.be
Cameron has insisted that all the immediate measures the Government is taking comply with the existing EU treaties. The European Commission has yet to say whether it thinks the proposals are legal. However, its clear that the UK Government is reaching the limits of what it can do under EU law as it stands.
To complicate matters further, the UK is already locked into an ongoing legal dispute with the European Commission over the rights of EU migrants to access the UKs universalist welfare system. Camerons recent intervention signifies a definite hardening of tone and position in this dispute, and in response EU Commissioner Laszlo Andor has said that the UK risks being seen as a nasty country.
To be critical, in his most recent intervention Cameron devotes a lot of time to discussing unilateral UK changes, but he does not directly address the fundamental issue at stake: that the UK and other countries are potentially in conflict with EU rules on access to benefits because these rules are no longer fit for purpose in an EU with a much wider group of countries with different welfare systems and levels of prosperity.
Whilst the Prime Ministers political stand is understandable, the UK needs allies to change the EU rules and should concentrate its efforts in future on marshalling other member states in favour of reform to ensure more flexibility for national governments to impose domestic safeguards for their welfare systems. The legal process with the European Commission could take several years but if the UK were to lose its ongoing battle at the European Court of Justice it could pose a major political blow ahead of any EU referendum in the UK.
What else could the UK propose?
In order to maintain any public confidence in EU free movement it is essential that EU rules respect differing national welfare systems that have developed through national democratic choices. Open Europe has suggested the following reforms to the EUs rules on access to benefits to establish a better link between economic contributions and access to benefits across the EU:
1) Rights of EU migrants to reside in another member state should be more closely linked to being in work or self-sufficient. This could be achieved by removing the right of residence as a job seeker unless someone has been previously employed in the UK for a certain period. When determining whether an EU citizen is a burden on the welfare system, national governments should be allowed to apply general thresholds for the income/resources that person is required to have. National discretion to set these rules should explicitly apply to all state welfare.
2) Secondly, the rules on family benefits should be tightened so that people cannot claim for benefits such as Child Benefit if their child is not living with them in the UK.
3) The requirement for equal treatment with UK nationals should be removed for EU citizens without a permanent right of residence in the UK when it comes to the provision of state welfare that is in particularly scarce supply, such as social housing.
What is EU free movement?
The free movement of people and workers within the EU has the potential to boost growth and competitiveness in both the UK and Europe. In addition, the ability for companies based in the UK to easily draw on a wide talent pool is seen by many firms as an advantage. However, free movement also throws up a huge number of political challenges, such as increased competition in low-skilled sectors of the labour market, the potential for downward pressure on wages over the short term, and increased demand for public services and infrastructure.
When referring to the free movement of people within the EU, it is important to distinguish between, on the one hand, the right to move freely and, on the other, the rights and responsibilities of people who move between EU countries (i.e. their ability to claim welfare benefits). The two issues are linked but politically and legally distinct. While the right to move is locked into the EU Treaties and difficult to change other than by withdrawal from the EU, the rules on access to welfare have developed largely due to European Court of Justice case law and secondary legislation on the rights of EU citizens.
EU legislation and case law sets down a complex system of what EU migrants are entitled to and what rules national governments can put in place to safeguard their welfare systems:
Is David Cameron alone?
No. If sold as EU-wide reform, the UK already has the support of Austria, Germany and the Netherlands, for an overhaul of the existing EU rules on access to welfare, particularly the ability for newcomers to claim benefits in another member state.
However, changing the EUs legislation on access to benefits will not be easy as it would require a qualified majority in favour among national governments and a majority in the European Parliament. If majorities could be secured, the legislative p rocess could take a year or more. This is a long-standing issue of contention between some national governments and the European Commission. In June 2011, ministers from 13 member states, including the UK, Denmark, Germany, Ireland, the Netherlands and Sweden, called for the concept of residence and the interaction between the Free Movement Directive and the EU Social Security Regulation to be further discussed with a view to considering amendments to the current legislative framework, should these be deemed necessary.
What is David Cameron proposing?
David Cameron has announced several measures to tighten the rules on free movement and access to welfare, some of which would be more or less immediate and others which would be for future negotiation. Contrary to some media reports, David Camerons proposals would not apply solely to Romanian and Bulgarian migrants but would apply to all EU migrants. Below are the main proposals:
1) We are changing the rules so that no one can come to this country and expect to get out of work benefits immediately; we will not pay them for the first three months. If after three months an EU national needs benefits we will no longer pay these indefinitely. They will only be able to claim for a maximum of six months unless they can prove they have a genuine prospect of employment.
These are changes that the Prime Minister announced in March 2013 and essentially set down the existing rules within the EUs Free Movement Directive and are already being brought into effect. They will ensure that UK domestic law contains stronger provisions to enforce the existing Directive.
2) We are also toughening up the test which migrants who want to claim benefits must undergo. This will include a new minimum earnings threshold. If they dont pass that test, we will cut off access to benefits such as income support. Newly arrived EU jobseekers will not be able to claim housing benefit.
This refers to a toughening up of the UKs habitual residence test that is applied to all people trying to access benefits in the UK. Under existing EU law, within certain parameters, the UK is able to apply different rules to UK nationals and EU migrants when it comes to accessing housing benefit.
However, the use of a minimum earnings threshold could fall foul of the EU rules unless it corresponds to an equivalent threshold applied to UK citizens receiving benefits. In addition, the European Commission classifies income support as a social security benefit and therefore argues that the UK cannot apply its right to reside test to this benefit as it currently does. This proposal will only intensify the legal stand-off.
3) If people are not here to work if they are begging or sleeping rough they will be removed. They will then be barred from re-entry for 12 months, unless they can prove they have a proper reason to be here, such as a job. We are also clamping down on those who employ people below the minimum wage. They will pay the price with a fine of up to £20,000 for every underpaid employee more than four times the fine today.
The increased fine for those breaking national minimum wage laws is a purely domestic measure. The ability to expel EU migrants under EU law is very narrow. However, the Free Movement Directive does allow national governments to remove people if they are not in work or if they cannot provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged. It is unclear whether the 12-month ban on re-entry would be recognised by the European Commission.
Changes for the future
4) For example, free movement should not be about exporting child benefit I want to work with our European partners to address this.
As David Cameron sets out, this would require a change to the existing EU regulations on social security and achieving this is dependent on gaining qualified majority of national governments and the agreement of the European Parliament.
5) We must put in place new arrangements that will slow full access to each others labour markets until we can be sure it will not cause vast migrations One would be to require a new country to reach a certain income or economic output per head before full free movement was allowed. Individual member states could be freed to impose a cap if their inflow from the EU reached a certain number in a single year.
David Cameron is referring to new transitional arrangements that could be applied to new EU member states. Applying new transitional arrangements would be fully possible because every new accession to the EU requires the unanimous agreement of all existing members. So, in this scenario, the UK would have very strong negotiating leverage and a number of other member states would be likely to support it.
The proposal for a member states to impose a cap on the inflow of migrants could, in theory, also be negotiated relatively easily if it applied solely to new countries joining the EU. It would, however, be much more difficult if the UK wanted to get agreement that this cap could apply to migrants from existing EU member states.
What is the ongoing legal dispute between the UK and the European Commission?
However, as noted earlier, the UK and the European Commission have already been locked in a legal battle for more than a year over the UKs existing right to reside test which it applies to EU migrants claiming certain benefits. Essentially, the European Commission thinks that more of the UKs welfare system should be open to EU migrants without the need to satisfy UK residency tests. The UK argues that the test is needed to ensure people cannot abuse its non-contributory universalist welfare system.
The announcements made by David Cameron today highlight that the UK is in the process of strengthening its domestic tests and therefore there is no sign of an end to the ongoing legal battle with the European Commission. The legal process could take several years but if the UK were to lose its battle with the European Commission at the European Court of Justice it could pose a major political blow ahead of any EU referendum in the UK. Alternatively, if the UK is successful in marshalling other member states in favour of reforming the EUs rules to ensure more flexibility for national governments to impose domestic safeguards, it will be an important victory and the European Commission would have to drop its legal challenge.
Further reading:
For more on the legal dispute between the UK and the European Commission:
http://www.openeurope.org.uk/Article...=PressReleases
Tread carefully: The impact and management of EU free movement and immigration policy:
http://www.openeurope.org.uk/Content...on2012_new.pdf
Open Europe submission to the UK Governments Balance of Competence Review Free Movement of Persons:
http://www.openeurope.org.uk/Content...of_Persons.pdf
Bron: politics.be