Free movement and migration within the EU and rights to claim benefits – the myths and the facts


February 18, 2013
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Overview

There are three recurring myths about EU rules on migration and benefits.

First, it is a myth that EU law gives all EU citizens an unconditional right to reside freely in the UK or another Member State. In reality, this right is subject to important restrictions.

Second, it is a myth that EU law means that EU migrants are automatically entitled to claim benefits in the UK or another Member State. In fact, EU rules require migrants to meet stringent requirements before they can be eligible either for means tested “social assistance” benefits like housing benefit and income support or for social security benefits like child benefit, invalidity benefit or contribution-based Jobseekers’ Allowance.

The third, linked, myth is that EU rules somehow encourage so-called benefit tourism. In fact, the rules are designed to prevent “benefit tourism”.

Benefit tourism?

There is no evidence that the UK suffers significantly from benefit tourism. Neither do EU migrants represent a disproportionate number of benefit claimants – rather the reverse.

As an example, the Department for Work and Pensions’ figures show that of 1.44m people (or very roughly 2.4% of the UK population) claiming Jobseekers Allowance (JSA) in Feb 2011, under 38 000 were from other EU countries. This represents about 2.6% of total JSA claimants, which is broadly in line with the estimated percentage of the UK population – also around 2.6%, or about 1.6 million people – who are nationals of other EU countries.

However, given that a significantly greater proportion of the EU migrant population is of working age than is the case for the general population, this means that the percentage of working-age EU migrants claiming Jobseekers’ Allowance is lower than the proportion of the general labour force claiming this benefit. The DWP document (see link above) shows that the picture is similar for other benefits.

The comparison is even more marked when looking at EU migrants from Poland and the other seven Member States which joined the EU in 2004. Under 13 000 JSA claimants (0.9% of total claimants) in February 2011 were from those Member States which joined the EU in 2004. These included for instance 6 390 claimants from Poland – or just over 1% of the estimated number of Polish nationals residing in the UK – compared to an overall figure of 2.4% of the UK population claiming JSA.

The level of EU migration into the UK is itself also often overestimated. In fact, according to Oxford University, net (arrivals minus departures) migration of non-British EU citizens into the UK in 2011 was 82 000, compared to 204 000 net arrivals from other parts of the world. So EU migration accounted for around 28.7 % of net migration into the UK in 2011.

EU rules – the facts

First, it is important to note that the EU rules have all been agreed by all Member States, including the UK.

Rules on free movement

EU citizens have a right to stay in the UK, or any other Member State that is not their own, for up to three months with a valid passport or identity card. But to stay for longer, they need to be:

Œ         in employment; or

         continue to seek employment and have a genuine chance of being engaged; or

Ž         to be able to show that they have sufficient resources not to be a burden on public funds and sickness insurance.

In other words, as UK Immigration Minister Mark Harper recently put it in the Daily Mail: “European nationals do not have unrestricted access to the UK. They must be exercising their treaty rights. This means they must be working, studying or self-sufficient.”

Individuals can also be excluded or expelled on the grounds of public policy or in the event of abuse or fraud.

The full and exact legal provisions are to be found in this EU law adopted by the European Parliament and by national Ministers in 2004.

Rules on rights to claim benefits

To get a full picture of how the EU rules work, we need to distinguish between two categories of benefits.

Social assistance benefits – such as Income Support or Housing Benefits– are typically means tested and given to people in need. These benefits are not financed by contributions paid by the individuals, but through general taxation.

EU citizens who are workers or self-employed in the UK (and their family members) are eligible for social assistance benefits without any conditions. That is only fair as they contribute, like all other UK workers, through their taxes to the public funds from which the benefits are financed.

Conversely, EU citizens who are not employed should not be eligible for these benefits as EU law requires them to have resources higher than the income threshold under which the benefits are granted.

Social security benefits are granted to provide cover against the classical social security risks – sickness, maternity and paternity, accidents at work and occupational diseases, old-age and invalidity, unemployment and having to assume financial responsibility for a family. Depending on the social security system of the Member State in question, they may be financed out of contributions (in the UK for example State Pension and contribution-based Jobseeker’s Allowance) or out of general taxation (in the UK for example healthcare in the NHS)

Again, EU citizens who are workers or self-employed persons in the UK (and their direct family members) are entitled to social security benefits on the same terms as UK citizens, provided that they meet certain conditions established by national law, such as for example reaching the retirement age for an old-age pension or having made sufficient contributions for an unemployment benefit.

On the other hand, EU law says that before EU citizens not active in the labour market become eligible for social security benefits they have to pass a strict “habitual residence test” proving that they have a genuine link with the UK.

This test has been agreed by all Member States, including the UK, under this EU Regulation.

In practice, a significant number of those who pass the habitual residence test have worked and paid taxes in the UK for a certain period or are living in the UK as a direct family member of someone working.

(The full criteria EU Member States should apply under the habitual residence test include the duration and continuity of the person’s presence in the Member State concerned; the nature of any activity pursued, including its stability or whether it is habitually pursued and the duration of any work contract, the exercise of any non-remunerated activity; the person’s family status and family ties; in the case of students, the source of their income; the person’s housing situation and its permanence; and in which country the person pays tax.)

These criteria for assessing habitual residence are strict and thus ensure that only those persons who have genuinely moved their centre of interest to a Member State are considered habitually resident there. This is a powerful tool for the UK and other Member States to make sure that social security benefits are only granted to those who are entitled to receive them.

Of course, in order to receive those social security benefits that are directly linked to a certain length or value of contribution, EU migrants must also meet those criteria as well as the habitual residence test.

So reports that the European Commission is insisting that the UK should provide benefits for non-active EU migrants “from day one” are quite simply untrue.

What is true is that the Commission, as it is legally obliged to do under EU treaties and rules to which the UK has signed up, has formally asked the UK to cease applying an additional “right to reside” test specific to the UK and which goes beyond the habitual residence test agreed by all Member States.

In many cases EU nationals living in the UK are indeed receiving the social security benefits to which they are entitled. But applying this additional right to reside test is depriving some other EU nationals living in the UK, in full compliance with EU rules and within the strict limits set by those rules, of social security benefits to which they are entitled.

In many cases, these EU nationals have worked and paid their tax and social security contributions in the UK, yet are still being refused benefits.

The fact that the UK continues to apply this test means that it is applying different criteria to EU nationals in the UK than those being applied to UK nationals resident elsewhere in the EU (of which there are up to two million according to some estimates).

Rights to National Health Service (NHS) treatment

First, EU law certainly does not make the UK a safe haven for EU citizens who would like to come to get healthcare at the expense of UK taxpayers.

Those who come for short periods, for example on holiday, can receive basic and emergency care, by using the European Health Insurance Card (EHIC – formerly known as an E111).

However, under the EHIC system, that care is ultimately paid for by their own Member State of residence. Such visitors are in general not entitled to non-urgent treatment for existing medical conditions and neither are they entitled to come to the UK specifically to obtain NHS treatment.

EU law on the coordination of social security systems provides that those EU citizens – and only those – who can show that they are either employed or self-employed in the UK or non-active but habitually resident in the UK (see above for the criteria) are fully entitled to treatment by the NHS on the same terms as resident UK citizens.

UK law is in line with this principle and does allow EU citizens who are genuinely resident in the UK to have full access to NHS treatment.

UK citizens in other Member States have access to state funded healthcare systems there on the same basis.

But the UK does not recognise entitlement to NHS treatment as comprehensive sickness insurance cover within the meaning of EU law on free movement of EU citizens. It is on that issue that the Commission launched “infringement proceedings” (legal action) in 2011 against the UK.

In the Commission’s view, EU law requires that in assessing whether a non-active EU citizen should be entitled to remain in the UK under the free movement rules, the UK authorities must consider NHS cover – IF the person qualifies for it – as sufficient sickness insurance, without requiring them to obtain private insurance. It is worth emphasising again that the mere fact of being present in the UK is NOT enough to ensure qualification for NHS cover.

EU rules do not prescribe to EU countries how they should set up their national health-care systems. They can shape those systems as they see fit and the only obligation is that they cannot discriminate against EU citizens from other EU countries.

Like a number of other Member States (Spain, Portugal, Denmark, Sweden, Finland), the UK has decided to set up a scheme which does not link entitlements to individual contributions.

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