As pointed out by von Papp, “one of the key themes underlying the 2016 referendum was migration control. More specifically, a central fear was that migrants from other EU Member States would come to exploit the UK benefit system.” Empirical evidence for this fear manifesting on a level beyond triviality is not available (von Papp), but what does the caselaw of the European Court of Justice have to say about this fear? Do the legal tests created for migrants’ eligibility support this fear? A look into the case law shows that the Court seems to share Brexiteers’ fear and appears to have weaved this concern into its caselaw.
The Starting Point: Economic Inactivity
If someone is categorized as a ‘worker’ under Art 45 TFEU, they are entitled to tax and social advantages on the same terms as nationals of the host Member State by virtue of the equal treatment rule enshrined in Art 7(2) Regulation 492/2011. So workers, who are economically active persons, enjoy the right to claim social assistance. But those are not the ones the Brexiteers feared – it was the picture of the unemployed EU migrant who would come to the UK for the sole purpose of claiming benefits.
Such a person would not fall under the category of ‘workers’ under Art 45 TFEU – instead, we would have to look to Directive 2004/38/EC for determining their rights as EU citizens who enjoy a right to reside in other Member States (Art 21(1) TFEU). And here, EU law appears to be significantly less generous: According to Art 24(2) of the Directive, a Member State is not obligated to grant an economically inactive person access to social assistance in their first three months of residence (and the conditions of residence for over three months include requirements such as economic self-sufficiency – Art 7 Directive 2004/38/EC). The Directive itself echoes Brexiteers’ fear as its conditions for residence explicitly refers to the migrant not becoming a burden on the social assistance system of the host Member State.
But how has the Court treated cases of migrants claiming access to social assistance in practice – especially if the condition of economic self-sufficiency is not met?
The Early Caselaw: The Generosity that Brexiteers Feared, but not really
Early cases such as Martinez Sala and Grzelczyk may, on a first glance, appear to confirm Brexiteers’ fear of the court opening the door to ‘benefit tourism’. But on a closer examination, it becomes clear that the individuals concerned in these cases do not fit the picture painted by Brexiteers. Take Martinez Salafor example: A Spanish national living in Germany for a long time (she came to Germany at age 12), who had worked earlier in her life while she was already in Germany, but stopped when she became a mother. The refusal to grant her a child benefit was based on her inability to provide a residence permit, which, even though Germany conceded that she was a lawful resident, the German authorities refused to issue to her. The court found a workaround to get her access to the benefits: Since she did not derive her right of residence from Union law (but from domestic law), the court had recourse to her Treaty rights and allowed her to rely on her a combination of Arts 18, 20 and 21 TFEU to imply her right to equal access to social benefits by virtue of her EU citizenship.
As pointed out by Davies, the claimant in this case does not look like the typical case of ‘benefit tourism’ – hardly anyone would think of someone who already moved to the host state as a child and built a life there and later claims social assistance as the typical case. Instead, Davies categorises her as one of the claimants who appear “deserving” in the sense that their cases do not fit the tale of benefit tourism. Similar arguments can be made about other early cases. Brexiteers’ fear had, therefore, not manifested in the early case law. But has the court extended its approach to the, as Davies categorises it, ‘less deserving’ cases that fit the tale of benefit tourism more neatly?
The Later Caselaw: The Brexiteers’ Approach Approved
Contrary to what Brexiteers may believe, the Court appears to share their concern over benefit tourism and its caselaw shows a far less generous approach in cases such as Dano and Brey. Dano fits the narrative of benefit tourism far better than the early cases: Here, a Romanian national moved to Germany and claimed social assistance and there was no indication that she intended to pursue work. She lacked sufficient resources to fund herself. Unlike in in cases like Martinez Sala, where the court used EU citizenship to infer a right of equal access to social assistance, the court went to the Directive 2004/38/EC to hold that she could not get access to social assistance through the EU citizenship provisions of the TFEU. The rationale reads itself like a neat summary of Brexiteers’ concern over benefit tourism: since, according to the Directive, migrants in residence for over three months shall not become an unreasonable burden on the host Member States social assistance schemes, Member States must have the possibility of refusing to grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement solely in order to obtain another Member State’s social assistance although they cannot fulfill the requirement of sufficient funds to claim a right of residence.
Conclusion
In conclusion, Brexiteers’ fear of benefit tourism appears to neither be rooted in numbers (von Papp) nor even a potential risk stemming from the tests established in the case law. Rather, the European Court appears to have shared their concerns and steered EU law in a direction that aligned with the concern of preventing benefit tourism. As with many arguments raised in the Brexit debate, a detailed and nuanced examination of the facts would have been a better basis for discussing the risk of benefit tourism than simple paroles without looking at whether they are supported by research.
Sources
Journal Articles
Konstanze von Papp, ‘‘Benefit tourism’ post-Brexit? Tackling the Ghost Through more EU Social Engagement’ (2018) 69(3) NILQ 271.
Gareth Davies (2018) ‘Has the Court changed, or have the cases? The deservingness of litigants as an element in Court of Justice citizenship adjudication’ (2018) 25 Journal of European Public Policy 1442
Blog Posts
Konstanze von Papp, ‘‘Benefit tourism’ post-Brexit? Tackling the Ghost Through more EU Social Engagement’ (Northern Ireland Legal Quarterly) < https://nilq.qub.ac.uk/index.php/nilq/issue693-article7> accessed 04 May 2022
Legislation
Treaty on the Functioning of the European Union (TFEU)
Regulation (EU) No 492/2011 (Freedom of Movement for Workers Within the Union)
Cases
Case C-85/96 Martinez Sala [1998] ECR I-2691
Case C-184/99 Grzelczyk [2001] ECR I-6193
Case C-413/99 Baumbast [2002] ECR I-7091
Case C-333/13 Dano, ECLI:EU:C:2014:2358
Case C-140/12 Brey EU:C2013:565