Publication resulting from the UACES 2017 PhD and ECR Conference
Although little evidence supports the existence of welfare tourism, the EU’s Court of Justice has increasingly adopted this economic rationale in its rulings, writes Charles O’Sullivan. He argues that the court, having departed from its original legal test for social assistance claims in several decisions, is bowing to political pressure on access to welfare support.
The ‘welfare tourist’, despite a lack of evidence to support its existence, is considered to be a migrant who moves to another state with the specific intention of taking advantage of its more generous welfare system. The European Parliamentary Research Service however believed that the current invocation of this category of migrants has little to do with them.
Rather, it is the economically-inactive generally as well as the current rules supporting free movement that critics oppose, despite EU law mandating that EU citizens do not become an ‘undue burden’ on the national social assistance system. Yet the Court of Justice of the European Union (CJEU) has begun to utilise this language both directly and indirectly within its own judgements in recent years with greater frequency.
The ‘Undue Burden’ in Directive 2004/38/EC
Directive 2004/38/EC regulates the right to residence and social assistance for EU citizens regardless of their economic activity. The right to move and reside freely is contained in Articles 6, 7 and 16 of the directive, and outlining the conditions applied to residence in a host state for less than three months, between three months and five years and over five years, respectively.
Article 7 in particular makes clear that those resident in a Member State between three months and five years cannot become an ‘undue burden’, and must ensure that they possess adequate financial resources and health insurance. Where they are capable of being deemed as such, they may lose their right to reside and, in some circumstances, can be removed on this basis. Article 14 does underline that an EU citizen cannot automatically be deemed an undue burden and removed simply by attempting to access the national social assistance system.
The Brey Test
It was not until the Brey case that the CJEU specifically adopted a set of criteria a Member State should apply to the economically-inactive making a social assistance claim who does not retain worker status. The court made clear that, before a social assistance claim is refused, the relevant welfare authority within a Member State must consider: if it is merely a temporary difficulty; the applicant’s length of residence; any relevant personal circumstances; the amount that would be paid to them; and how many others would be in the same position (Paras 64 and 78).
For a small subset of individuals, this would have granted them a presumptive right to access social assistance, albeit one which was still a very limited right and one which would place their residency in a degree of jeopardy. It was still possible for such persons to be considered an undue burden once they had been granted access and their limited period of access had elapsed.
Dano as ‘Evidence of Welfare Tourism’
A short time later, the decision in Dano confirmed that the court had significantly reassessed the Brey decision and was adopting the ‘welfare tourist’ as a specific exception to this rule. The case involved a Romanian national who, along with her son, lived with and was cared for by her sister in Germany. She was subsequently refused a social assistance payment which as a secondary purpose facilitated access to the labour market and argued that this was discriminatory under EU law as EU citizens were not entitled to it.
Rather than focusing on this question, the CJEU emphasised that Ms Dano had no intention of working, and was a ‘fairly blatant’ example of welfare tourism. Very little was made of the fact that she had been resident in Germany for some time, had been granted an unrestricted right to residence, and was already in receipt of other social assistance payments. Nor did the court consider that she was low-skilled, and had a low level of spoken and written German comprehension. Due to her lack of economic activity, the court distinguished it from the criteria set out in Brey as well as overruling the German authorities by saying that she would no longer have a right of residence under EU law.
Subtle Restatement in Alimanovic
In Alimanovic, the German state sought to clarify whether or not it had acted justly in cutting off a Swedish jobseeker from the same broad category of payment at issue in Dano once the applicant’s statutory entitlement had elapsed. In finding in favour of the German authorities, the CJEU held that, whilst Ms Alimanovic would not herself constitute an undue burden on the state, to limit a Member State’s authority in this area could lead to unreasonable demands being made on its welfare system (Para 62).
The applicant’s surrounding personal circumstances were again not considered, and the court made several mentions of the Dano decision before concluding that Brey was not applicable, despite it being unlikely that her continued receipt of this payment would be more than temporary. The broader argument concerning the sanctity of the national welfare system and need to limit the access of others to social assistance, a tacit reference to welfare tourism, superseded her personal circumstances.
Limited Rights for All?
The most recent and perhaps the most worrying continuation of this trend took place in Commission v UK, which dealt with social security for the economically-active, a statutory right. Yet the CJEU allowed conditions not present in the rules governing access to social security, but included in Directive 2004/38/EC, could be applied by Member States in order to protect the financial security of their welfare systems and to verify entitlements (Para 80).
In justifying this approach, the CJEU invoked both Dano and Brey, and signalled that further changes targeted directly and indirectly at the spectre of welfare tourism remain all too present in this area. From this we can see that economic arguments are now being adopted as a general rule in all areas of EU welfare law due to external political pressures from, as well as within, the Member States.
Please note that this article represents the views of the author(s) and not those of the UACES Student Forum or UACES.
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Charles O’Sullivan is PhD Candidate in Law at Maynooth University. His research focuses on access to social welfare in Ireland for different types of migrants under EU and Irish law.