Fair Drive Of People: Equal Treatment? (Part Two)

Catherine Barnard in addition to Sarah Fraser Butlin*

*The authors are both at the University of Cambridge in addition to funded yesteryear the ESRC’s U.K. inward a Changing Europe programme

Introduction

In the initiative of all spider web log (here), nosotros argued that a futurity UK/EU migration policy should live on based to a greater extent than or less the notion of fair – non gratis – movement. One chemical ingredient of this would live on a piece of work permit scheme dependent on having genuine employed or self-employed action (or sufficient resources for migrants in addition to their families), accompanied yesteryear a simplified registration scheme, based on the scheme already used for Croation migrants.

A instant chemical ingredient of our scheme would include possible restrictions on the regulation of equal handling inward abide by of both piece of work in addition to access to benefits.  We suggest that the U.K. needs to utilise the restrictions on equal handling that already be inward the Citizens’ Rights Directive 2004/38 piece developing the restrictions on the equal handling regulation contained inward the Brussels New Settlement Agreement negotiated yesteryear David Cameron inward Feb 2016.  We suggest that this may (eventually) live on acceptable to the European Union because it reflects both the origins of the gratis motility provisions inward the European Union in addition to a political realisation that gratis motility is less pop than it was for Western European Union states. Anything negotiated for the U.K. mightiness offering a path for Austria, Denmark, Deutschland in addition to other Member States to throttle access to benefits to European Union migrants inward the initiative of all years of their arrival.

II Origins of Free Movement in addition to the equal handling principle

The 1948 Paris Treaty saw gratis motility every bit a way of optimising a natural resource, namely labour, but 1 which was subsidiary to the objective of seeking total job for national workers. However, it was also clear that where host States chose to utilization migrant workers, they had to ensure that migrants enjoyed satisfactory conditions, albeit non necessarily equal treatment. Nevertheless inside a year, the 5 signatory States (Belgium, France, Luxembourg, the Netherlands in addition to the UK) of the Brussels Treaty recognised the require for equal handling of migrant workers inward relation to social safety in addition to concluded the Multilateral Convention on Social Security. 

In 1951, the Treaty founding the European Community for Coal in addition to Steel (ECSC) made provision, yesteryear way of Article 69(1), for non-discrimination on the grounds of nationality inward the coal in addition to steel industries of workers of proven qualifications, dependent land to the “limitations imposed yesteryear the cardinal needs of wellness in addition to world order”. 

Thus, fifty-fifty earlier formal discussions nearly the establishment of the Common, forthwith Single, Market, had begun, ideas of equal handling of migrant workers in addition to the interrelationship betwixt gratis motility of labour in addition to social safety provision were already inward play every bit a agency of facilitating the gratis motility of labour. In the proposals of the Inter-Governmental Conference (IGC) inward June 1956, gratis motility was to live on defined every bit ‘the correct to nowadays oneself inward whatever the world of the Community to the posts advertised in addition to to stay inward that the world if a chore is genuinely obtained’ in addition to this was without ‘any restriction which does non apply to national workers themselves’ i.e. they had to taste the regulation of non-discrimination which was delivered yesteryear Article 45(2) TFEU.

Scroll frontward through the ensuing one-half century in addition to the regulation of equal handling is extended to those European Union migrants who were non fully economically active (students, the retired in addition to persons of independent agency (PIMs)), in addition to fifty-fifty those without resources yesteryear a combination of the Citizens’ Rights Directive 2004/38 (CRD) in addition to the Treaty provisions including those on European Union citizenship.

The CRD already contains limits on the correct to equal treatment. For those who are non economically active, they are non entitled to equal handling inward abide by of social assistance (benefits for the rattling poor) for the initiative of all iii months, nor are they entitled to equal handling inward abide by of pupil grants in addition to loans until they own got been inward the host the world for 5 years. The 5 twelvemonth restriction on students grants in addition to loans also applies to those who are economically in addition to semi-economically active. Nevertheless, those who are economically active taste equal handling from solar daytime 1 inward abide by of all other matters. However, the regulation of equal handling has ever allowed states to impose, say, a one-year residence requirement earlier receiving a produce goodness although only if the residence requirement tin live on objectively justified in addition to is proportionate.

Notwithstanding the possibilities opened upwardly to the U.K. to throttle equal treatment, these limitations were non sufficient for many U.K. voters. In the run-up to the plebiscite inward the U.K. in that location were concerns nearly European Union workers claiming equal handling inward abide by of inward piece of work benefits such every bit revenue enhancement credits. There was detail concern nearly equal handling for those who were non economically active. The European Union ‘benefit scrounger’ became the bogeyman of the UK’s referendum.

III Recent Court of Justice jurisprudence on citizenship

There were signs that the Court of Justice (CJEU) had started to heed to these concerns, peculiarly nearly equal handling for those non economically active. For example, inward Collins the CJEU held that a habitual residence requirement prior to claiming a produce goodness could live on objectively justified yesteryear the require to ensure that in that location was a genuine link betwixt the applicant for an allowance in addition to the geographic job marketplace inward question. This conclusion chimed amongst a broader recognition yesteryear both the Tory in addition to Labour parties that in that location was a require for “fair contribution” earlier benefits should live on paid.

In Dano (discussed here) the Court suggested that, inward the instance of a mortal who was non economically active, the correct of lawful residence, acquired yesteryear demonstrating possession of comprehensive sickness insurance in addition to sufficient resources, every bit required yesteryear the CRD, was a precondition to the enjoyment of the regulation of equal treatment. The Court held expressly that produce goodness tourism would non live on encouraged. 

In Commission v UK (discussed here) the Court confirmed that in that location was zip to preclude the grant of social benefits to Union citizens who were non economically active existence made dependent land to the noun status of a correct to lawfully reside inward the Member State.

Thus, the recent instance police push clit puts considerable ability inward the hands of the host Member States: individuals tin live on excluded from fifty-fifty relying on the equal handling regulation if they produce non satisfy the requirements of the CRD. Even if they produce satisfy those requirements, states tin even then impose residence requirements every bit a precondition to entitlement to benefits, provided those residence requirements are justified in addition to proportionate, in addition to states tin impose checks to verify this. There were signs that the Court was starting fourth dimension to allow states convey dorsum some command of its welfare states.

IV        “New Settlement” agreement

Some of the restrictions on the regulation of equal handling in addition to benefits recognised yesteryear the Court were incorporated inward David Cameron’s forthwith defunct ‘New Settlement’ or Brussels Agreement, negotiated amongst the European Union inward Feb 2016. It effectively codified the CJEU’s decisions inward Dano and, some other instance decided at much the same time, Alimanovic (discussed here): Member States could spend upwardly to grant social benefits to people who did non own got sufficient resources to claim a correct of residence or who were alone entitled to reside because of their chore search. 

However, to a greater extent than significantly the Brussels Agreement introduced the watch that in that location could live on an emergency brake on in-work benefits. The understanding proposed amending Regulation 492/2011 ’to convey line concern human relationship of a delineate gene arising from a Member State’s in-work benefits regime‘ inward guild to ‘provide for an alarm in addition to safeguard machinery that responds to situations of inflow of workers from other Member States of an exceptional magnitude over an extended menses of time’. Influenza A virus subtype H5N1 Member State wishing to utilization the machinery would notify the Commission in addition to the Council that ‘such an exceptional province of affairs exists on a scale that affects essential aspects of its social safety system, including the primary purpose of its in-work benefits system, or which leads to difficulties which are serious in addition to liable to persist inward its job marketplace or are putting an excessive pressure level on the proper performance of its world services’.

The proposed machinery was for the Commission to examine the notification in addition to for the Council to authorise the fellow member state, yesteryear way of an implementing act, to throttle access to in-work welfare benefits ‘to the extent necessary’ for a total menses of upwardly to 4 years from commencement of employment.

The rules were sophisticated but needed some careful explaining and, every bit anyone involved inward the plebiscite discovered, the require to explicate meant the debate was lost. However, nosotros suggest that the Brussels agreement, which never came into forcefulness next the Leave vote, may assist inform whatever futurity understanding amongst the European Union inward abide by of limiting the equal handling principle.

V. The equal handling regulation inward the model of fair movement?

So what mightiness the novel scheme of equal handling await similar nether our proposed immigration regime? In simply the way that the founder Member States recognised that in that location should live on some limits on equal handling for migrants, nosotros convey that in that location needs to live on some limits on that equal handling inward guild to abide by the concerns expressed inward the referendum. Following the model of the Croation scheme, proposed inward the previous blog, a Croation national becomes entitled to social safety after 12 months of authorised work. This mightiness live on the starting indicate for the novel scheme. However, nether the Croation scheme, those inward authorised piece of work are entitled to means-tested benefits. Under whatever novel scheme the U.K. mightiness fence for no agency tested benefits such every bit revenue enhancement credits for 12 months. More radically, the U.K. mightiness want to render to the model proposed inward the New Settlement Agreement where in-work benefits for those on the lowest pay live on phased inward over 4 years of residence.

VI.       Conclusions

Given what was achieved yesteryear the Brussels negotiations, together amongst the jurisprudence of the Court of Justice, is it possible to envisage some shape of evolving concept of fair movement, providing a flexible but controlled approach to migration that is strongly aligned to the needs of the labour market, every bit those negotiating the master copy version of the Treaty advocated? We are advocating the utilisation of tools already found inward the CRD in addition to mayhap inward the New Settlement Agreement. The rights would apply to those EU/EEA nationals inward a recognised category – every bit a (genuine) worker (as defined inward the previous blog, amongst minimum income thresholds in addition to hours of work?), a self-employed mortal or a service provider.

EU/EEA nationals could also displace every bit a pupil or a mortal of independent means, both needing to present comprehensive sickness insurance in addition to sufficient resources, damage which should live on to a greater extent than substantively defined. And they should live on registered inward the identify of residence, amongst relevant documentation proving their entitlement which employers would require to depository fiscal establishment check earlier offering work, higher pedagogy establishments would depository fiscal establishment check earlier admission in addition to providers of world services would require to depository fiscal establishment check earlier offering those services. Once entitlement is established, the regulation of equal handling is applied but phased every bit the CRD currently provides in addition to nuanced every bit inward the instance police push clit of the Court of Justice in addition to inward accordance amongst the damage of New Settlement Agreement.  In particular, the utilization of residence requirements every bit a limitation on access to social safety benefits would enable the Government to challenge criticisms of “benefit tourism”.

We would suggest that this tempering of the gratis motility of persons would hit a remainder betwixt the political, social in addition to cultural concerns nearly immigration amongst a want for fairness to EEA migrants. It draws on some of the erstwhile thinking: the early on drafters of European documents on gratis motility grappled amongst some of the issues that are forthwith existence faced inward the UK. While equal handling has been at the core, it is a notion which has long been qualified both yesteryear the EU’s secondary legislation in addition to the instance police push clit of the Court.

Barnard & Peers: chapter 27, chapter 13

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