An Insubstantial Pageant Fading: A Vision Of Eu Citizenship Nether The Ag’S Consider Inward C-308/14 Committee 5 Uk

Charlotte O'Brien, Senior Lecturer, York Law School

The political message beingness sent past times irate governments to ‘back off’ from national welfare systems’ assumed prerogative to discriminate betwixt abode nationals together with European Union nationals is beingness received together with applied amongst alacrity past times the Court of Justice. The electrical current direction of locomote resiles from before progressive visions of European Union citizenship, together with inward C-140/12 Brey, C-333/13 Dano and C-67/14 Alimanovic we regard that which was 1 time ‘destined to live [our] key status’ receding e'er farther from view. Advocate General Cruz Villalón’s Opinion inward Commission v UK continues the retreat, tilt that the Commission’s activity challenging the UK correct to reside examine for household unit of measurement benefits should live dismissed. The final result may, inward the electrical current environment, live unsurprising. But getting at that spot amongst existing legal tools is problematic.

The Opinion contains a number of uncomfortable contortions to give undue deference to the national rules, together with avoid tackling the underlying conflict of rules together with approaches. It represents quite startling judicial activism inward embroidering the legislation amongst unwritten limitations equally to personal scope, tinkering amongst the dependent patch matter, together with asserting an unwritten licence to discriminate whenever something smells similar a welfare benefit. The number is equally though the Court’s novel teleological guiding regulation should live that the legislature would have got wanted at all costs to avoid offending the UK government.

The UK correct to reside (RTR) examine prevents whatever European Union national who does non run into the criteria inward Art seven Directive 2004/38 from receiving Child Benefit or Child Tax Credit, both of which were accepted equally beingness ‘family benefits’, thence ‘pure social security’ (rather than exceptional non-contributory benefits inward Brey, Dano and Alimanovic) nether Regulation 883/2004. The Commission challenged the test’s lawfulness on ii grounds – that it imported extra weather condition into the ‘habitual residence’ test, to undermine the effects of Regulation 883/2004, together with that it is discriminatory since it only applies to non-UK citizens. The AG’s Opinion is remarkable, inward its powerfulness to reject both without engaging amongst either. This analysis deals amongst 4 key issues arising from the Opinion: (i) stitching, splicing together with embroidering Reg 883/2004; (ii) the ‘inherent’, ‘inevitable’ together with ex ante discrimination fudge; (iii) the parallel reality inward which the UK does non presume unlawful residence; together with (iv) the failure to notice that the UK automatically refuses social assistance to those reliant on ‘sufficient resources’.

(i) stitching, splicing together with embroidering Regulation 883/2004

The AG is at some pains to create upwardly one's heed whether the ‘right to reside’ examine is part of the habitual residence examine (HRT), or a divide examine added on, suggesting that it is only if it is presented equally the former, does the Commission have got a case. As the UK regime ‘distanced’ itself during proceedings from the combined examine approach, together with argued that it was a divide examine of lawful residence, thence the AG commented that the Commission’s illustration was ‘weakening over the class of the dispute’. Indeed, on the set down that the examine was ‘independent’ of the HRT, the AG argued that the kickoff set down should live dismissed. This is perplexing. It seems to live a affair of regulatory semantics whether the RTR is role of the HRT, or is applied equally good equally the HRT, if the number – to undermine Regulation 883/2004 – is the same.

For the record, the conclusion that they are divide tests is unconvincing anyway. For all benefits amongst an official ‘habitual residence test’ the regulations supply that a claimant cannot live habitually resident unless she has the correct to reside inward the CTA (Income Support (General) Regulations 1987, reg 21AA; Jobseeker Allowance Regulations 1996, reg 85A; Employment together with Support Allowance Regulations 2008, reg 70(2); State Pension Credit Regulations, reg 2; regard DWP, DMG, 072771). For CB together with CTC the terminology is slightly dissimilar – the words ‘habitually resident’ are non used, but a somebody must live treated equally beingness inward the UK. And to live treated equally beingness inward the UK, you lot have got to have got a correct to reside (Child Benefit Regulations 2006, Reg 23(4)(a); Tax Credits (Residence) Regulations 2003, Reg. 3(5); CBTM10010 - Residence together with immigration: residence – introduction).

However, whether nosotros process the RTR equally role of habitual residence, or equally an extra test, the number inward both cases is to add together weather condition onto the circumstances inward which a somebody is treated equally coming together the ‘residence’ criteria of Regulation 883/2004. That Regulation offers a clear, exhaustive listing for allocating ‘competence’ of Member United States of America for benefits, providing a residue category for the economically inactive, at Art 11(3)(e) inward which the Member State of residence is competent. Once competence has been established, that State is together with then responsible for the payment of household unit of measurement benefits, dependent patch to the non-discrimination provision.

The scheme of the Regulation is intentionally broader than that of Directive 2004/38 – applying a dissimilar personal orbit for a start (covering all those who ‘are or have got been dependent patch to the legislation of 1 or to a greater extent than Member States’), together with roofing pensioners, those betwixt jobs, those who powerfulness autumn exterior of the Dir 2004/38 Article 7(3) retentivity provisions – essentially, those who should live covered past times social safety provisions. To apply the correct to reside examine is to hack downward the rationae personae of the Regulation to emulate that of Directive 2004/38 – an approach non endorsed, implied or merited inward the Regulation. The AG’s assertion that police should non be inward ‘separate compartments’ equally justification for splicing the instruments together together with embroidering an extra status into the Regulation rather likewise easily ignores the dissimilar purposes together with scopes of the instruments. Similarly, the dissimilar textile issues – the restriction of social assistance at nowadays embodied inward Directive 2004/38, versus honor of social security, are inappropriately assimilated. The AG notes, plainly approvingly, the UK’s assertion that ‘the ii benefits at number inward the acquaint illustration have got some characteristics of social assistance’. This goes unexamined, together with helps shape the context inward which the dissimilar nature of social security, together with dissimilar dependent patch affair of the Regulation, is effectively ignored. In sum, nosotros have got an approach inward which if a exercise goodness is a ‘bit like’ social assistance, together with a legal musical instrument is inward roughly the same expanse equally Directive 2004/38, together with then unwritten restrictions kicking in.

In the specific illustration of household unit of measurement benefits, the Regulation’s residue category should supply a guarantee that families exercise non autumn through the cracks together with let on themselves disentitled to whatever household unit of measurement benefits, since many Child Benefits are tied to residence. This also serves the ‘bonus’ purpose of protecting children, who are non the agents of migration, together with who the legislature together with the Court have got hitherto taken pains to protect from suffering the penalties of their parents’ choices and/or misfortunes – either out of an involvement inward kid welfare, or equally an instrumental way of avoiding disincentives (risks to their children’s welfare) for workers to migrate.

Here it is worth emphasising that when nosotros beak of falling through the cracks, nosotros to a greater extent than oftentimes than non beak of people who have got been working (rather than those who have got never worked). The correct to reside examine results inward a strict bifurcation betwixt those ‘working’ together with those not. The rules on retentivity of worker status are stringent together with exclusionary, thence that people tin flame live working together with contributing for many years together with silent autumn over welfare cliff edges. Regulation 883/2004 should offering some protection to their pre-school children inward such cases, fifty-fifty where Directive 2004/38 is (according to emerging illustration law) rather harsher to the parents.

However, inward the AG’s approach nosotros tin flame regard the Directive, having already been transformed from an musical instrument to promote costless motion into a musical instrument to foreclose exercise goodness tourism (Dano); beingness promoted to the status of a key regulation of limitation, to live (retrospectively) mainstreamed into other (higher) legislative instruments – exerting restrictions that are non at that spot written.

(ii) the ‘inherent’, ‘inevitable’ together with ex ante discrimination fudge;

The AG avoided dealing amongst the query of whether the RTR examine discriminates opposite to Regulation 883/2004, past times finding that the RTR prevented the Regulation from beingness applicable at all – plainly treating ex ante discrimination equally de facto lawful. This conceptual approach is deeply problematic – tin flame Member United States of America actually avoid the non-discrimination obligations contained inward legislation past times applying discriminatory gateways to access that legislation?

As noted above, 1 time competence of a Member State has been established for the purposes of Regulation 883/2004, it is together with then – according to that instrument, saltation past times non-discrimination duties (Article 4). However, nether the proposed approach, at that spot volition live people for whom no Member State has competence, because competence is to live determined according to a laid of restrictions inward a completely dissimilar musical instrument which apply a dissimilar concept to a dissimilar laid of people for a dissimilar laid of benefits. And if they are inward this way found non live inside whatever State’s competence, the query of discrimination is avoided.

To the extent that the AG does engage amongst non-discrimination duties, it is role of an imprecise give-and-take nearly the likelihood of the lawfulness of curbing benefits from non-nationals (benefit restrictions are ‘traditionally associated’ amongst requirements of legal residence). In drawing upon Dano together with Brey, the fact that those cases dealt amongst benefits therein defined equally social assistance is swept aside somewhat equally the AG finds ‘there is cipher inward those judgments to betoken that such findings apply alone to the social assistance benefits or the exceptional non-contributory cash benefits amongst which those cases were concerned together with non to other social benefits’. But at that spot is enough to betoken that social safety benefits should live treated differently inward their coverage inward a dissimilar slice of legislation. It is for sure rattling strange to suggest that the Court should listing those instruments on which it was not ruling.

Recognising that the rules exercise process UK nationals together with non nationals differently, the Opinion makes some rhetorical points nearly discrimination equally role of the natural ecosystem of costless motion – ‘one way of looking at it is that this divergence inward handling equally regards the correct of residence is inherent inward the organisation and, to a sure extent, inevitable… In other words, the divergence inward handling betwixt UK nationals together with nationals of other Member United States of America stems from the rattling nature of the system.’ None of this does anything to address the query of the work of direct versus indirect discrimination – the latter beingness rather easier to justify. It almost suggests that some flat of direct discrimination has to live accepted equally a affair of pragmatism. Indeed, the characterisation of the rules equally indirectly discriminating on the grounds of nationality is 1 of the most contentious issues inward the case. Much equally inward C-184/99 Grzelczyk, an extra status is imposed only upon non-nationals. Hiding behind the banner of indirect discrimination seems unconvincing if nosotros posit a brief idea experiment. Imagine all European Union national men automatically had an RTR, but all European Union national women had to overstep the RTR test; that could non live described equally indirectly discriminating on the grounds of sex. While it could live argued that nationality is a dissimilar type of set down to sex, together with thence dissimilar differences are acceptable, the fact that nosotros are dealing amongst direct discrimination remains. And this is non explored. The only thing that needs justification, nether this analysis, is non the test, but the procedural checking, which nosotros facial expression at next.

(iii) the parallel reality inward which the UK does non presume unlawful residence

The AG states that it cannot live inferred that the UK presumes that claimants are unlawfully resident, adding that European citizenship would preclude such a presumption, together with that claimants should not systematically live required to bear witness they are non unlawfully resident.

However, the whole claims procedure inward the UK does systematically require proof of claimants that they are (not un)lawfully resident. The correct to reside examine takes the limitations of Directive 2004/38 together with makes them a priori weather condition of the existence of the correct to displace together with reside. There is no full general citizenship-based correct to reside that tin flame live modified past times limitations, amongst some discretion. The weather condition come upwardly first, together with must live demonstrably met, inward each together with every case. The UK’s assertion that ‘In cases inward which at that spot is doubtfulness equally to whether the claimant has a correct of residence, an private assessment of the claimant’s personal circumstances is carried out’ rather masks the procedure of assessment that determination makers are required to undertake according to the determination maker guidance on establishing whether a claimant really is or was a worker - using the UK’s ain definition. That Definition is flawed inward itself, requiring evidence to run into a higher threshold than laid inward European Union law, together with the evidential hurdles tin flame live considerable. Even for the most straightforward cases of worker, proof is required that earnings have got been at or to a higher house the Minimum Earnings Threshold for a continuous menstruum of at to the lowest degree 3 months. Those amongst variable earnings are expected to supply considerable evidence if they wishing to ‘prove’ their correct to reside. In cases where HMRC have got ground to doubtfulness weather condition go on to live met for revenue enhancement credit awards, they number further, penetrating compliance checks, together with inward the UK government’s Budget Policy costings document, the regime announced that the restrictions on benefits ‘will live augmented past times additional HMRC compliance checks to amend detection of when EEA migrants cease to live entitled to these benefits. The checks volition apply to all EEA migrant claims’. The organisation is ready to brand the weather condition constitutive of the correct to costless movement, effectively requiring all claimants to bear witness that they are non unlawfully resident, notwithstanding the apparent ‘background’ of European Union citizenship, together with claims are dependent patch to systematic checking, notwithstanding Article 14(2) of Directive 2004/38.

The AG however, took the seat that such checks are non systematic, but may live indirectly discriminatory, but that they were lawful, amongst the briefest of nods to justification – equally though the mere advert of the UK’s populace finances is sufficient to provoke a reverential hush, genuflection together with swift retreat from the subject: 

‘without whatever demand to pursue the declaration further, I consider that the necessity of protecting the host Member State’s populace finances, (75) an declaration relied on past times the United Kingdom, (76) is inward regulation sufficient justification for a Member State to banking concern check the lawfulness of residence at that point.’

No data, it seems, is required.

Nor is whatever appointment amongst the query equally to whether purely economical aims are legitimate aims for the purpose of justifying discrimination or restricting a key liberty – on this, regard AG Sharpston’s Opinion inward C-73/08 Bressol.

(iv) the failure to notice that the UK automatically refuses social assistance to those reliant on ‘sufficient resources’.

The AG rounds upwardly the Opinion past times noting that inward whatever case, the economically inactive are non completely hung out to dry out – they should have got their circumstances examined to create upwardly one's heed whether they have got sufficient resources non to go a burden on the populace purse. Here, the AG emphasises that mere recourse to populace funds should non bar a claimant from having a correct to reside based on sufficient resources, together with that their illustration should live assessed equally to whether they are an ‘excessive’ burden. This is all rattling well, but speaks to a rather dissimilar reality to that experienced inward the UK, inward which the economically inactive are automatically barred from claiming social assistance because they are automatically treated equally non having sufficient resources at the dot of claim. Moreover, the Upper Tribunal has suggested that ‘sufficient resources’ agency sufficient to provide for the migrant’s household unit of measurement for 5 years; a migrant cannot claim to have got had sufficient resources for a curt menstruum of fourth dimension betwixt jobs if those resources would non have got lasted for 5 years.

In short, the Court should live wary of next the AG’s atomic number 82 inward backing off from the plainly prohibited expanse of UK welfare benefits quite thence hastily. The Regulation’s personal together with textile scope, together with purpose, cannot only live ignored or modified, nor tin flame the Directive live transformed into an all-encompassing, higher principle, through pro-Member State judicial activism. The correct to reside examine adds weather condition to the application of the Regulation’s provisions, together with it does thence inward a straight discriminatory way. The Court must address these points honestly; if it is prevented from doing thence past times the political air current – or if it likewise conjures upwardly a default forcefield to a greater extent than or less benefits regardless of type, together with gives licence to ‘inevitable’ discrimination – the ramifications volition tell non only upon claimants, their children, the vanishing strands of European Union citizenship together with the obstructed liberty to move, but also upon the Court’s credibility. 

Photo credit: www,kilburntimes.co.uk

Barnard & Peers: chapter 9

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