What Brexit could mean for individual rights

John Hodgson considers how the rights of citizenship, free movement, and entitlement
to social security benefits might be affected for UK citizens in the EU, and vice versa

The key rights of individuals within the EU are citizenship, free movement, and access to social security benefits. These apply to union citizens and extend to their close family members, whatever their nationality.

Citizenship is created by article 9 of the Treaty on European Union (TEU) and article 20 of the Treaty
on the Functioning of the European Union (TFEU), which provides: 'Citizenship of the union is hereby established. Every person holding the nationality
of a member state shall be a citizen of the union. Citizenship of the union shall be additional to and not replace national citizenship.'

The most important citizenship right is the right to free movement, but article 21 TFEU makes it clear that this right is conditional. There is also a separate right to free movement for workers under article 45 TFEU, which has been applied since the 1960s to those seeking work as well as those actually employed in a third state (see Regulation 1612/68 and Directive 68/360/EEC, as explained by case
law such as Case C-292/89 Antonissen). The self-
employed also have the right to mobility under article 49 TFEU.

Free movement is codified in the Citizens' Rights Directive (CRD) (2004/38/EC). There is a general
right to move to and reside in another member state for up to three months with no formalities except evidence of status (article 6). Longer residence is restricted to employed or self-employed workers, work seekers, bona fide students, those of independent means, and their families (article 7). Such residents are entitled to equal treatment with member state citizens under the employment chapter of the TFEU and the CRD itself.

Five years' continuous lawful residence confers permanent residence. Permanent residents may be expelled only on 'serious grounds of public policy or public security' (article 28 CRD).

EU citizens who have exercised their right of
free movement and returned to their home state continue to enjoy the benefits of the CRD as against their home state. This affects social security entitlements, but also means that non-EU citizen spouses and other family members must be admitted under the CRD, even if they do not
meet national immigration requirements (see,
for example, Case C- 370/90 Surinder Singh).

Social security benefits

The social security systems of the member states have not been harmonised. Some depend largely on a contributory insurance principle; others do not. In the UK, the state pension and jobseeker's allowance (partly) are contributory, but most benefits are not. Regulation 883/2004 seeks to provide for the entitlement to the whole range of social security benefits, including pensions, industrial injuries benefits, sickness benefits, unemployment benefits, child benefits, maternity and paternity benefits (article 3), and 'special non-contributory cash benefits' (article 70), intended to secure a minimum level of subsistence.

The regulation is based on equality of treatment (articles 4 and 5) and aggregation of contribution periods in any member state (article 6). It contains detailed provisions for ascertaining which social security administration is responsible in each
case, and how, for instance, a final pension is calculated where there are contributory periods
in multiple states.

The equality of treatment principle, which is applied to migrant workers in the UK, controversially gives entitlement to non-contributory benefits, such as child benefit or tax credits, immediately, whereas in member states where these benefits
are contributory, a UK citizen only qualifies once
the contribution requirements are met.

In the 1990s, the Court of Justice of the European Union (CJEU) held in Case C-85/96 Martinez Sala that, for those who are not economically active, entitlement to benefits such as child benefit rested on EU citizenship and actual residence.

A normally self-sufficient non-worker does not lose their status because of occasional recourse to social security (see Case C-140/12 Brey). The migrant must not become 'a burden on the social assistance system of the host member state during their period of residence' (article 13 CRD). Habitual recourse to such claims might justify action by the state.

Recent decisions take a different line. In Case C-333/13 Dano, a union citizen moved to Germany, never worked or sought to work there, but claimed benefits. She fell outside article 7 CRD and could not rely on EU law to claim article 70 cash benefits. Case C-67/14 Alimanovic allowed the German authorities to deny social security benefits to union citizens who had worked on a short-term basis, but were not employed at the time of the claim. It was specifically observed that while the burden on the state of paying benefits to an individual might not be unreasonable, the cumulative burden of payments to multiple claimants could be.

Case C-308/14 Commission v UK held that the
UK could lawfully make entitlement to child
benefit and child tax credit conditional on a right to reside under article 7 CRD. There is still a complex interrelationship between benefits legislation, with subtle distinctions between different categories
of benefit, and rights of free movement as such. Recent cases such as Case C-138/02 Collins qualify the earlier assertion that 'citizenship of the union is destined to be the fundamental status of nationals of the member states' and effectively prevent 'benefit tourism'.

EU citizen status

The future position, assuming that Brexit is eventually negotiated, cannot be confidently predicted. EU officials and EU-27 national politicians assert that full access to the single market requires free movement of people, as is the case with Norway in the European Economic Area, and Switzerland through its network of bilateral agreements. There have been indications that member states may be prepared to consider minor adjustments, particularly in relation to benefit entitlement, although the provisions to this
effect negotiated in February 2016 lapsed with
the referendum result, and would need to be agreed afresh.

If some more limited future relationship emerges, specific provision will need to be made for various categories of individuals. It is, however, at least arguable that the status of union citizen currently enjoyed by UK citizens is not removable. As stated above, this right is clearly and unconditionally conferred by article 20 TFEU.
It has been repeatedly held, in the cases referred
to and in many others, to be directly effective.
The doctrine of direct effect, derived ultimately from Case C-26/62 van Gend en Loos, is that the EU constitutes a new international legal order which does not just concern the member states as high contracting parties but confers rights and imposes liability on individuals, in particular where the treaty so provides.

Any attempt to remove the status of EU citizen would appear to involve a serious attack on the dignity of those individuals, many of whom have made it clear that they regard the status as highly valuable; this would be incompatible with article 1 of the EU Charter of Fundamental Rights, which certainly will continue to bind EU-27. If the status is retained, it carries with it the rights under the CRD and otherwise, at least for UK citizens in EU-27.

Should this argument fail, there will need to be
a negotiated solution, and in any event EU citizens resident in the UK could not rely on the same argument in reverse, as the UK would no longer be bound by the EU treaties and secondary legislation. There seems very substantial public support for allowing those EU citizens currently in the UK to remain. Presumably, those who already have the right of permanent residence will be granted indefinite leave to remain under the UK system,
or some similar arrangement. What is less clear is whether those currently acquiring the continuous period of residence will qualify for permanent residence or permanent leave to remain in due course, and whether this will continue to apply to those arriving during the intervening period before Brexit takes effect.

At present, there is merely a general commitment to favourable treatment. The stated intention of
the UK government is that the position should be reciprocal, so that UK citizens with permanent residence within EU-27 would continue to enjoy
this status. It is, of course, also arguable that the Surinder Singh principle can be relied on by those who have already exercised their rights, since this has crystallised them, so a substantial number of EU citizens who have exercised these rights at some time in the past will continue to have a right of free movement based on this.

It is highly unlikely that significant restrictions would be placed on short-term movement, whether for tourism, family, or business reasons, provided this is done on a non-discriminatory basis. The UK and the Schengen area states already accord short-term visa-free access to citizens of a number
of third states. It is, however, likely that greater formalities will be required for long-term settlement, particularly for workers, and some form of work permit system may be imposed both by the UK
and by EU-27.

EU regulations on entitlement to benefits on a cumulative basis and the precise arrangements for payment might well cease to apply. The UK does have a number of bilateral agreements on social security benefits with third countries, and formerly had such arrangements with some EU states. There is a strong expectation that future arrangements should not be less advantageous. This would include, for example, automatic uprating of UK pensions paid to UK citizens resident in EU-27.

John Hodgson is a reader in legal education at Nottingham Law School @LawNLS www.ntu.ac.uk/nls