Debunking the 'benefits tourism' myth

That EU law encourages ‘benefits tourism’ is deeply ingrained in the minds of some critics. It is, therefore, worth remembering that EU law contains safeguards against such practices. There have been occasional missteps in the case law of the Court of Justice of the European Union (CJEU), but, as some recent cases show, the court understands the problem, and it sees no need to accommodate anything remotely resembling benefit tourism within EU law.

Citizenship of the union is conferred by the Treaty on the Functioning of the European Union (TFEU) upon all nationals of any member state: under article 20 TFEU, all citizens have the ‘right to move and reside freely’. But that broad claim is not to be taken seriously, for article 20 goes on to say that the rights are to be ‘exercised in accordance with the conditions and limits defined’ not only in the treaties, but in ‘measures adopted thereunder’.

This means that EU citizens really only have such rights as are conferred upon them by EU legislation, including in particular Directive 2004/38. This directive makes it clear that those who are not employed or self-employed are only entitled to take up long-term residence in another member state if they ‘have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host member state’.

Predictably enough, some migrants find themselves in the position of needing or wishing to claim on the social assistance system of a host member state. A number of recent cases have shown increasingly definite insistence by the CJEU that their claims for social security benefits can be rejected in appropriate cases.

Social security claims

The most recent such decision is Case C-299/14 García-Nieto (25 February 2016). Alongside Case C-333/13 Dano (11 November 2014) and Case C-67/14 Alimanovic (15 September 2015), the decision forms part of a consistent line.

In García-Nieto, for instance, a Spanish man had gone to live in Germany with his partner (to whom he was not married), their child, and his child from a previous relationship. The question was whether he and his son were entitled to unemployment benefits during the first three months of their residence in Germany. The CJEU held that they were not.

This is not a surprising conclusion. The basic scheme of Directive 2004/38 is to protect member states’ social security systems from being pressed by claims from migrants who are not economically active. As the CJEU pointed out, it would make nonsense of the scheme to allow someone to claim social security benefits by virtue of the exercise of a right whose existence precisely depends upon… not needing social security benefits.

And what about the first three months of residence? During those three months, the right of movement is unconditional; the host state’s right to investigate a migrant’s resources only arises after three months. But that does not confer any unconditional right to social assistance. The legislation makes express provision that member states are allowed to refuse to provide social assistance during this period. And, said the CJEU, this means what it says.

There are those who may regret that a fundamental right can be subject to such rules. But the CJEU recognises that this is the basic ‘bargain’ embodied in the legislation, and it is prepared to stand by it. That point is worth bearing in mind when considering the fears of those who perceive the CJEU as bent upon some supranational project and willing to bend the law out of shape to achieve it.

Unwise suggestion

As usual, however, there is a fly in the ointment: an ill-thought-through comment in Case C-140/12 Brey (19 September 2013), which the court has since been explaining away. 

The directive is disinclined to permit member states to fix arbitrary thresholds below which they consider a person has insufficient means. That is reasonable enough, perhaps: individual circumstances differ; some people may be able to show that they have such modest needs or informal means of support that they are unlikely to make any claim, even if they are very poor.

But in Brey the court unwisely suggested that what was called for was some assessment of the likely effect that an individual’s claims, if made, would have on the social security system. That is much less sensible. Any individual claim will always be more or less negligible in the great scheme of things. Examined one by one they are grains of sand. But the legislation is concerned with their cumulative effect: with the heap of sand. 

In its recent cases, therefore, the court has made it clear that primacy must be given to the basic scheme and rules to preserve, at the systemic level, the fundamental principle that they embody.

Paul Stanley QC is a barrister practising from Essex Court Chambers @EssexCourtLaw essexcourt.com