Economically inactive migrants under UK Law
In the UK, the Immigration (European Economic Area) Regulations 2006 implemented the Citizens Directive 2004/38EC into UK domestic law.[143]
The conditions[144] for becoming a resident in the United Kingdom in the 2006 Regulations are similarly defined to the ones laid down in 2004/38 Directive. Specifically, they state that a person who is ‘qualified’[145] for the purposes of residing in the UK is primarily a person who has the ‘worker’ or self-employed status. Adopting the same wording as in the Citizens Directive, Article 13 of Immigration (European Economic Area) Regulations 2006, specifically states that persons who become a ‘burden’[146] on the UK Social assistance system will ‘cease’ to have their rights of residence in the UK. The Immigration (European Economic Area) Regulations 2006 lacks the implementation of Article 24 of 2004/38EC on equal treatment between EU nationals. However, in relation to denying social aid during the first three months of staying in the UK or prior to getting permanent residence, the Social Security (Persons from Abroad) Amendment Regulations 2006 does implement Article 24(2) of the 2004/38EC Directive, which in effect suggests that when nationals from Eastern Europe do enter the UK, they will be ineligible for receiving SNBC’s if they become unemployed during the first 12 months of their stay here.
Furthermore, Accession (Immigration and Worker Registration) Regulations 2004, regulates the rights of entry, residence and access to the labour market[147] in relation to the ten new Accession States nationals in the UK (EU10). Under regulation 4(1) it is states that the regulation will derogate from Article 45 of TFEU and Articles 1 to 6 of workers regulation 492/2011EC, concerning abolition of restrictions on free movement of workers and their families, during the accession period. In addition, regulation 4(2) provides that a work seeker will not be able to reside in the UK, unless they are self-sufficient when they arrive. Under Regulation 2(4) of Accession (Immigration and Worker Registration) Regulations 2004, an obligation for an Accession State national (national of any EU10 country) to re-register when becoming employed again with a new employer within the 12 month period has proven to place an additional restriction on A10 nationals.[148]
i) Evaluation of UK laws on residence: economically inactive citizens only a burden?
The fact that worker status is stated at the top of the list ‘underlines successive governments’ expectations that EEA nationals should be working or otherwise reciprocating for any support they receive and thereby ‘contributing’ to the UK economy.’ [149] Furthermore, it has been contended that Eastern European nationals have limited residence rights during their early stages of their stay in the UK.[150] Economically inactive migrants such as jobseekers and students are prevented from attaining SNCBs in the UK since article 24(2) of the Citizens Directive denying them with rights to receive SNCBs, is implemented into domestic law. However, Article 24(1) of the Citizens Directive on equal treatment between EU nationals is not implemented into domestic law.[151] The fact that Eastern European migrants must be registered and are prevented from residing within the UK if they are not in continuous employment for 12 months seems to be legitimate. However, the real obstacle is in place when they are required to prove that they have sufficient resources so as to not become an unreasonable burden during the first twelve months of residing in the UK.[152] The fact that the provision on equal treatment under 24(1) of Citizens Directive is not implemented and only 24(2) is, suggests that the UK is exceedingly selective about which key provisions that it wants implement. Additionally, ‘the Regulations […] entail severe hardship for A10 migrants with limited resources’. [153] Together, the two regulations combined have created a form of ‘hierarchy’[154] among Eastern European nationals where they have to work continuously for a year. Eastern Europeans are required to directly participate in the labour market so as to gain the similar rights as British workers. It can be stated that ‘there almost appears to be a spirit of contractualism inherent in the legislation […] suggesting that rights guaranteed under EU law must in some way be ‘earned’ to these nationals.’ Furthermore, the waiting period plays a crucial role, especially where Eastern European are out of work within a year. Persons from Eastern Europe usually find employment through agencies and as a result may not remember to re-register each time when they change employment. It is also difficult to ascertain whether the burden of registering should lie with the agency or the worker. Since they are in a new country they might not keep up with all the formalities that are required in order to work in the United Kingdom.[155]
The Habitual Residence Test: an unfounded precondition for residence rights or a proportionate measure to protect national security?
Establishing ‘habitual residence’ has proven to be an obstacle in determining an economically inactive EU Citizens right of residence in the UK[156]. The Social Security (Persons from Abroad) Amendment Regulations 2006, implemented in the UK, regulates the persons who are eligible for receiving social benefits. An applicant wishing to obtain the ‘right to reside’ within the UK must satisfy that they are ‘habitually resident’ and if they fail in doing then that will strictly disqualify them from receiving social assistance for maintenance purposes. A ‘person from abroad’, is ineligible for accessing social assistance and is defined as someone who does not reside in the ‘UK, Channel Islands, Isle of Man, or Republic of Ireland’. On the contrary, a person will be classified as not a person from abroad if he can satisfy conditions similar to the ones laid out in Directive 2004/38[157]
Factors that courts will take into account when determining ‘Habitual residence’ are as follows
● The nature of residence, for example length and continuity
● Purpose of wanting to reside in the UK, for example are genuinely intending on finding work here.
● Applicants intentions for the purpose of residing here[158]
Additionally, in the case of Nessa v Chief Adjudication Officer,[159] Lord Slynn mentioned that some of the factors that imply that one is habitually resident are as follows: ‘Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, ‘durable ties’ with the country of residence or intended residence, and many other factors have to be taken into account’.
Proportionality of UK laws on residence
At a glance, it is clear that ‘right to reside test’ is discriminatory, since it can more easily be satisfied by a UK national, than an EU Citizen. Where no right of residence exists, the UK Courts, have been determined to justify expulsion,[160] of an EU Citizen as will be provided evidence for in chapter five. On the contrary, in the light that social security systems of the host state need to be protected, some share the view that;
‘So long as social security systems have not been harmonised in terms of the level of benefits, there remains a risk of social tourism, i.e. moving to a Member State with a more congenial social security environment. And that is certainly not the intention of the EC Treaty, which to a considerable extent leaves responsibility for social policy in the hands of the Member States’.[161]
Thus, denying an EU citizen social benefits amount only to indirect discrimination, which is not prohibited where it is ‘objectively justified’[162] and the considerations taken account of are ‘independent of the nationality of the person concerned’. As a result, provisions that do not let other EU nationals from ‘exploiting’ the social welfare system of the UK are ‘legitimate reasons’[163] for imposing the right of habitually residence test. In the case of Trojani,[164] it was argued that it is a ‘basic principle of Community law’[165] that persons who depend on social assistance will be taken care of in their own Member State. ‘Therefore Article 7(1)(b)[on sufficient resources] seeks to prevent economically inactive Union Citizens from using the host Member State’s welfare system to fund their means of subsistence’[166]
EU Commission’s ‘notice’
The EU Commissions Notice[167] in relation to the UK expresses the view on the legality of the ‘right to reside test’. The Commission has requested the UK to ‘end discriminatory conditions on the right to reside as a worker which exclude from certain social benefits nationals from the A8 Accession States’. It further implies that the requirements set in the test are a breach of transitional arrangements on free movement, and of obliges the UK authorities to ‘ensure equal treatment on the basis of nationality’. Many Scholars share the same concern contending that the ‘Commission are right to be concerned about the operation of the right to reside, particularly given the scale of its impact on A8 nationals’.[168] Evidence can be drawn from data where in the first four years of the transitional restriction on A8 nationals put up in May 2004, 76% of claims for tax-funded, income-related benefits and tax credits were prohibited on the basis of the right to reside and habitual residence test.[169] In another report, the EU Commission has described the implementation of the Directive 2004/38 by the UK courts as highly disappointing.[170] The report states that ‘with regard to the rights of other family members under Article 3(2) is less satisfactory’ where thirteen Member States, out of which one is the UK, have failed to transpose Article 3(2) correctly.
After all, Baumbast[171] established that economically inactive Citizens of the European Union may exercise their directly effective rights under 18 EC Treaty (now Article 20 of TFEU), and if there is a requirement that limits such freedom of movement then it must be waived. However, this case seems to have gone unnoticed by the UK courts.
However on the contrary, some Scholars share the view that restricting rights of residence to non-nationals is an indirectly discriminatory practice as nationals always will be able to fulfil the residence requirements of and non-nationals will too, provided that they satisfy certain conditions laid.[172]
Now having discussed the legality of the UK legislation on social benefits, what does this tell us about the legal status of persons who are invoking Article 20 of TFEU in search of work? Firstly, EU law does state that persons who are genuinely searching for work in another Member State of which the Citizen is not a national will be able to stay there for 6 months, if they can show that they have a genuine chance of being employed. At this point, it would not be wrong in stating that;
‘What the Government has done here is to open up the labour market relatively generously with one hand, while, by imposing an unnecessary and harsh sanction for failing to comply with a purely procedural requirement, it has, in many cases severely and arbitrarily undermined that generosity with other hand’.[173]
UK MEASURES ASSESSED THROUGH CASE LAW
Three cases will be analysed in detail below where the outcomes of the UK laws on receiving social benefits have proven to be exceedingly harsh. It is vital to, firstly outline the facts of the cases followed by an in-depth analyses of the decisions of the Supreme Court.
Kaczmarek case
The Kaczmarek[174] case signifies that the measures taken by the UK courts to prevent social assistance to an EU Citizens who, ought to be allowed to receive it due to personal circumstances. The case can be compared to Prix[175] outlined in chapter 3.
The facts are as follows, Kaczmarek, a Polish national, arrived in the UK to pursue her studies in April 2002. She worked in a primary school on a part time basis from 17 June 2003 until 30 April 2004. She gave birth to a daughter on 5 October 2004 and took maternity leave. The child fell ill and as a result she could not return to work and was unable to afford childcare. As a result she applied for income support in May 2005, which was rejected, despite the fact that she was only intending on staying out of the labour market for a short while and she appealed to the Supreme Court, relying on article 12 and 18 of EC Treaty.
The Supreme Court dismissed her appeal on the basis that she had not ‘resided’ in the United Kingdom at the time that she applied for Income Support. She was considered a ‘person from abroad’[176] and thus not ‘qualified’[177] to attain Income support.
i) Critical evaluation of decision in Kaczmarek
Firstly, the personal circumstances of Kaczmarek were such that denying her of benefits would clearly prevent her of enjoying her Citizenship rights of free movement. Secondly, she was able to show a genuine link to UK labour market since she had been in employment for some time. Thirdly, the right to reside test has already been criticised, the commissions notice and thus is incompatible with EU law. Miss Kaczmarek was clearly involuntarily unemployed and therefore ought to have retained the status of a ‘worker’ as per 7(3) of the Citizens Directive. The CJEU in Prix stated that ‘Article 45 TFEU would permit the woman to retain the status of a worker, based on the facts of the case, provided she returns to work or finds another job within a reasonable period after the birth of her child.’ The CJEU in Prix, specifically emphasised that as per Article16(3) of the Citizens Directive, right of residence shall not be affected and thus income support will be granted for ‘important reasons suchas pregnancy and childbirth[…]’[178] It is highly likely that the outcome of the case would have been different if the case was sent for a preliminary ruling under 267 of TFEU.
Zalewska case
The case of Zalewska[179] can also be compared to the similar Prix on the basis of the similar facts. It should be noted that the decision in the current case took place before the decision in Prix was taken by the CJEU.
Ms Zalewska, a polish national arrived in Northern Ireland in July 2004 and during the same month she took up employment and registered on the WRS. In January 2005 Ms Zalewska left to take up another employment through a recruitment agency, however, this time she did not register for WRS, despite that fact that under UK law[180] at that time required her to do so. In January her daughter and partner visited her for three months in Ireland. In April 2015 she was admitted in the Women’s Aid Hospital after experiencing domestic violence abuse by her partner. She left her second employment and sought income support so as to provide for her daughter and herself. Her application was refused as Ms Zalewska lost her right to reside as she had not been in 12 months of continuous employment.[181] Ms Zalewska appealed to the House of Lords, basing her claim on two grounds.
Firstly, Article 7(2) of Regulation 492/2011, grants migrant workers the right to access the same social advantages as nationals, in order to claim access to income support, thus she could rely on the regulation. Secondly, the registration rules are incompatible with EU law as they do not comply with the principle of proportionality.
The Supreme Court held by a majority 3:2 that the registration requirement was compatible with EU Law. Lord Hope who gave the leading opinion stated that, firstly, the actual requirement to register is proportionate[182] basing his argument on the fact that an ‘‘influx’’ of migrants may prove unsettling to the UK’s social security system[183] and also, the fact the UK needs to monitor[184] the number of Eastern European nationals entering its territory with the help of the registration scheme. Secondly, the need to re-register may be proven to be disproportionate, however, the re-registration rule does not require that the personal circumstances of the claimant should be considered.
‘The right that the Accession Treaty gives to regulate access to the labour market during the accession period carries with it the right to ensure that the terms on which access is given are adhered to. Regulation of the right of access and monitoring its exercise are appropriate and necessary consequences of making that right available’[185]
It’s true that the Member States were allowed to set up measures to restrict labour market access to A8 nationals, however was the outcome of the case fair?
i) Critical evaluation of decision in Zalewska
It is evident from Zalewska that she, being a non-national experienced a disadvantage in comparison to UK nationals and once examined the restrictions were purely ‘founded on nationality’[186] and hence, would be ‘directly discriminatory’[187] Despite the fact that Miss Zalewska had been involuntarily unemployed, she was unable to access income support by relying on Article 7(2) of Regulation 492/2011 and Article 45 of TFEU.
The aftermath of not being able to re-register was disproportionate especially towards Zalewska who had been in employment for over a year and counted as registered through her first employment registration. [188] The fact that her personal circumstances, which were only temporary indicates the UK courts’ unwillingness to grant residence rights to persons who are not economically active, contravening to EU law principle of non-discrimination. Moreover, she was she was a jobseeker during the time that she sought for income based allowance which shows that the decision of the majority was not proportionate.
‘The sanction, of depriving a worker who had been employed here for 12 months of the social benefits to which she would normally be entitled as a result of having joined the UK workforce, is neither suitable nor necessary for the achievement of that limited aim’.[189]
It is rational to agree with Barroness Hale in that that ‘overall, the manner in which Baroness Hale considers proportionality reflects a more nuanced, Community law-inspired application of the principle’[190].
Patmalniece case
Ms Patmalniece, [191]a Latvian pensioner arrived in the UK in June 2000 as an asylum seeker as a result of fearing persecution in Latvia due to her Russian Origin. She had previously worked in Latvia for forty years and had a Latvian pension of only £50 a month to survive on. In 2005, she applied for State Pension Credits[192] which enables eligible pensioners to ‘top up’ or raise their income. Her claim was refused on the grounds that she did not have a ‘right to reside’[193] in the United Kingdom. She appealed to the Supreme Court on the grounds that the right to reside requirement was directly discriminatory towards EEC nationals in comparison to UK nationals as all UK nationals could automatically satisfy the right to reside requirement.
Before the Supreme Court, Lord Hope gave the leading judgement posing two main questions[194]
1. Did the habitual residence requirement in reg 2[195] of the 2002 Regulations give rise to direct discrimination or indirect discrimination for the purposes of seeking benefits?
2. If the discrimination was indirect, could it be objectively justified regardless of the claimant’s nationality?
Lord Hope, in his judgement argued that the situation, together with the relevant legislation had to be considered as a whole. He took the example, in Bressol[196] where Belgian authorities introduced further conditions for French students so as to access the Belgian education system which did not extend to its own nationals where such practice was held as being indirect discrimination.
It was thus held that direct discrimination towards Parmalniece had not occurred since she could satisfy the criteria of being habitually resident in the UK as she was required to pass the ‘qualified gateway’ of being a worker, self-employed etc. Thus, ‘habitual residence’ requirement was held to be a neutral provisions, and thus indirectly discriminatory with the effect of operating mainly to the detriment of nationals of other Member States.[197]
Baroness Hale, focused on the legitimacy of the measure taken to limit access of benefits for Patmalniece, which effectively, according to her, depended on the national laws.
Baronness Hale pointed out that firstly, the most logical approach should be to look at the rights of residence granted under EU law stating
If nationals of one Member State have the right to move to reside in another Member State under European Union law, it is logical to require that they also have the right to claim special non-contributory cash benefits there - in other words that the State in which they reside should be responsible for ensuring that they have the minimum means of subsistence to enable them to live there.[198]
However she went on to consider the rules of residence under UK law and concluded that ‘it is logical that [the host] State should not have the responsibility for ensuring their minimum level of subsistence’.[199]
Baronness Hale further considered that, under EU law, a person invoking their free movement rights has to reside legally within the member state and mere physical presence is not a criteria to make available such access to lawful residency under UK law. She drew the distinction from Trojani[200] where the claimant had a genuine link with the host Member State, was lawfully resident there and thus could claim social benefits. Therefore, if Patmalniece was able to demonstrate that she was lawfully resident, through demonstrating a genuine link with the UK labour market then that would suffice under both EU law and UK law and enable her claim to benefits under the same conditions as UK nationals.
i) Critical evaluation of decision in Patmalniece
Puttick takes the view that the majority decision in Patmalniece ‘devalues’ European Citizenship, especially since the decision denies her of the ‘most basic support needed to secure dignity in old age which is readily available to most UK and Irish claimants, including those who may never have been in any kind of paid employment‘[201]. The decision of the Law Lords further lowers the standard of quality of life where the outcome shows what ‘welcome’ ‘EU nationals can expect when they reside in other Member States after spending most of their adult life in employment in another EU State’[202]. However, it is recognised that the decision was lawful under which clearly shows how ‘unfortunate’ the outcome was ‘against a backdrop of European initiatives aimed at combating the social exclusion of European ‘elders’, and ‘exploring new ways to support active ageing’.[203]
CONCLUSION
In all of the above cases the justification for denying rights of residence have been deemed to be necessary and proportionate as they are made to protect the State's public finances. Given the nature of the transitional measures on free movement rights ‘there has been a tendency of the UK courts to fail to engage with a full and rigorous application of Community law principles when adjudicating on issues relevant to EU8 [Central and Eastern European]migrants’.[204] The three cases analysed in chapter four provide enough evidence to argue that ‘it is through the national context that Community law based rights must filter’[205]despite the fact that Treaty rights on non-discrimination are directly effective in the UK. Also, The free movement rights derived from ones Citizenship status, which are valued for transforming social and welfare rights of free movers are not ‘an automatic process but, rather, depends on the national courts’ interpretation and goodwill’.[206] Furthermore the judgments, ‘overlook the relevance of the broader Community provisions on free movement which extend some protection to former workers’[207] It is established that under EU law, Article 45 gives social rights to EU Citizens regardless of the time they spend in employment.[208] The hurdles set by the UK government have let to Eastern Europeans access the labour market with one hand and at the same time imposed ‘unnecessary’ sanctions for failing to follow procedural requirements with the other.
As mentioned above Habitual residence may be justified on the grounds of ensuring the claimant has a“real link” to the society from which he or she seek to claim benefits from. Yet, ‘The legally resident criterion’ is more ambiguous since it does not specify the degree of integration required from the migrant and, ‘arguably it goes too far’[209].The UK needs to show ‘financial solidarity’ with EU Citizens residing within its territories, especially in relation to persons who are able to show a genuine link with the labour market yet, the decision in the UK courts are inherently mechanical in their judgement process. When an EU Citizen is out of work, the rational consequence should be that social assistance, such as income Support or jobseekers allowance, should be available as otherwise, it would place that Citizen in the most vulnerable position. Specifically in relation to ‘some groups, including single parents, carers, and older Citizens are more vulnerable to current UK approaches to determining if residence rights have been acquired and retained’.[210]
Regulation 883/2004EC on the application of unified social security schemes throughout the Member States is not correctly adopted to protect vulnerable groups of Citizens in the UK.[211] It is highly possible that common social security solidarity within the EU has not come at the expense of weakening the UK governments ability to circumvent residence rights and grants of social security. Of course, Member States need to protect their economies from ‘benefit tourism’, however in the United Kingdom that has evidently come at the expense of undermining the community goals of social and economic solidarity set in The Treaty of Rome 1947 by ‘raising the standard of living and closer relations between the States belonging to it’. [212] Despite the fact that the Transitional measures of 2004 are no longer in place the pattern of unfavourable treatment towards Eastern Europeans continues as is evidenced by cases such as Zalewska, Kaczmarek and Patmalniece.
On the contrary some have stated that providing the same rights to non-nationals with social benefits under the same conditions as national ‘would run counter to an objective of the directive [2004/38 EC] namely preventing Union Citizens who are nationals of other Member States from becoming an unreasonable burden on the social assistance system of the host Member State’.[213] To rebut the previous statement, the Citizens Directive does also provide that Citizens of the European Union are free to reside in any Member State where it must also ‘take into account the personal situation of the person concerned’ when assessing if a Citizen has sufficient resources and thus is able to reside with the host Member State. To expel them on the grounds of merely protecting the social assistance system would run counter to Article 21 of the TFEU. ‘ Citizens are not ‘resources’ employed to produce goods and services, but individuals bound to a political community and protected by fundamental rights […] when citizens move, they do so as human beings, not as robots. They fall in love‘.[214] Furthermore, it would be apt to state at this point that ‘UK practice, in the way claims and awards of social assistance are currently being decided, is likely to be out of kilter with what EU law expects, particularly in the way proportionality principles should inform decisions on ‘residence’ and support’.[215] Also even under EU law a Citizen has to show a level of integration or a ‘real link’, which the UK Courts more often than ignores. Although an economic link is a prerequisite to receiving social benefits, it also urges the host Member State to look at factors such as previous history of the claimant, for example if they have been working before or have a record of taking up social benefits. The evidence post –enlargement suggests that the UK has benefited from the presence of Central and Eastern European workers due to their tax and national security contributions.The Accession Monitoring Report,[216] for example, confirms Central and Eastern Europeans work in the labour market with ‘‘hard-to-fill’’ jobs which include factory and warehouse workers, kitchen and catering assistants, cleaners and labourers. By denying Eastern Europeans the rights and benefits that normally accrue to migrant workers after the employment relationship has expired under EU law, the UK government ‘fails to shoulder responsibility for their welfare should they later fall on hard times’.
[1] Case C-184/99 Grzelczyk v Centre Public d'Aide Sociale d'Ottignies-Louvain-la-Neuve [2001] ECR I-6193, para 32 [2] F Pennings, ‘EU Citizenship: Access to Social Benefits in Other EU Member States’ (2012) 28(3) IJCLLIR 307 [3] Chalmers and Davies and Monti, European Union Law (4th edn, Cambridge University Press 2010) 447 [4] CEE countries consist of the following: Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia who joined EU joined the EEC following enforcement of the Accession Treaty on 1st May 2004 (also referred to as EU10); whereas Romania and Bulgaria joined the EEC on 1st January 2007 (also referred to as EU2) [5] P Larkin, ‘The Limits to European Social Citizenship in the United Kingdom’ (2005) 68(3) MLR 435, 446 [6] Chalmers (n 3) 449 [7] A host Member State is defined as ‘the Member State to which a Union Citizen moves in order to exercise his/her right of free movement and residence’ as per article 2(3) of Directive 2004/38EC [8] Article 14 of Directive 2004/38EC [9] Emphasis added [10]M Dougan and E Spaventa, ‘Educating Rudy and the non-English patient: a double bill on residency rights under Article 18 EC’ (2003) 28(5) ELR 699 [11] K Puttick, ‘Paying their way? Contesting "Residence", self-sufficiency, and economic inactivity barriers to EEA nationals' social benefits: proportionality and discrimination’ (2011) 25(3) JIANL 280, 282 [12] A Wiesbrock, ‘Union Citizenship and the Redefinition of the "Internal Situations" Rule: The Implications of Zambrano’ (2011) 12(11) GLR 2077, 2081 [13] Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ C115/47 [14] The European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77 [15] Austria, Belgium, Denmark, Finland, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden and the United Kingdom (also referred to as ‘EU10’ countries) [16] European Citizen Action Service, ‘Who’s afraid of the EU’s latest enlargement? The Impact of Bulgaria and Romania joining the Union on Free Movement of Persons’ (2008) Sixth Framework Research Programme Liberty and Security <http://www.libertysecurity.org/IMG/pdf_ECAS_REPORT_free_movement_in_2007.pdf> accessed 3 March 2015 [17] P Goodman, ‘Under this Government, we have what Gordon Brown called for during his – ‘British jobs for British workers’ (2013) Consevative Home <‘http://www.conservativehome.com/thetorydiary/2013/02/by-paul-goodmanthe-most-convincing-explanation-of-why-the-economys-rickety-condition-is-marching-in-step-with-booming-emplo.html> accessed 15 March 2015 [18] M Jouen and C Papant, ‘Social Europe in the throes of enlargement’ (2005) Policy Papers No 15 Notre Europe Etudes & Recherches <http://www.institutdelors.eu/media/policypaper15-en-jouen-palpant-europesocialandenlargement.pdf?pdf=ok > accessed 3 March 2015 [19] Ibid [20] V Mitsilgas ‘Free movement of workers, EU citizenship and the enlargement: the situation in the UK’ (2007) 21(3) JIANL 223, 225 [21] B Smith, ‘Eastern European immigrants 'overwhelming benefit UK economy’ (2013) The Telegraph <http://www.telegraph.co.uk/news/uknews/immigration/10484225/Eastern-European-immigrants-overwhelming-benefit-UK-economy.html> accessed 7 March 2015 [22] Ibid (n 4) on for full list of countries [23] See (n 15) for full list [24] See Article 24, Act of Accession [2003] OJ L236/33 refers to a series of Annexes that contain the details of the transitional arrangements in respect of each accession Member State. For example, in relation to Poland see Annex XII [2003] OJ L236/875 [25] S Currie, ‘Challenging the UK rules on the rights of EU8 workers’ (2009) 31(1) JSWFL 47, 48 [26] The Accession (Immigration and Worker Authorisation) Regulations 2006, s 6(1) [27] HM Revenue and Customs, ‘CBTM10070 - Residence and immigration: residence - right to reside in the UK’ (2015) <http://www.hmrc.gov.uk/manuals/cbtmanual/cbtm10070.htm> accessed 7 March 2015 [28] Ibid [29] Part II (Articles 18-25) of the Treaty on the Functioning of the European Union (TFEU) [30] Ibid (n 27) [31] C O’Brien, ‘Real links, abstract rights and false alarms: the relationship between the ECJ's ‘real link’ case law and national solidarity’ (2008) 33(5) ELR 643 [32] K Puttick (n11) 284 [33] Article 4 of The European Parliament and Council Regulation 883/2004/EC of 29 April 2004 on the coordination of social security systems [2004] OJL 116 [34] E Guild and S Carrera and K Eisele, Social benefits and migration: A Contested relationship and policy challenge in the EU (Centre for European Policy Studies) (2013) 9 [35]Article 2 of The Treaty of Rome 1947 [36] Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24 [37] Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310 [2009] 2 CMLR 3 [38] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 [2011] 1 WLR 783 [39] Case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions [2014] PTSR 1448 [40] K Puttick (n 11) 292 [41]C Barnard, The Substantive Law of the EU - The Four Freedoms (4th edn, Oxford University Press 2010) 223 [42] The Treaty on European Union (TEU) was signed in Maastricht on 7 February 1992 and came into force on 1 November 1993 [43] The European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77 [44] A Wiesbrock, ‘Union Citizenship and the Redefinition of the "Internal Situations" Rule: The Implications of Zambrano’ (2011) 12(11) GLR 2077, 2081 [45] Case C-378/97 Wijsenbeek [1999] ECR I-6207, Opinion of A.G. Cosmas, paras 86 [46] S O'Leary, ‘Putting Flesh on the Bones of European Union Citizenship’ (1999) 24 ELR 68, 68 [47] Article 20 (1) of TFEU [48] Case C-212/06 Flemish Insurance [2008] ECR I-1683, para 33 [49] Case C-175/78 Saunders [1979] ECR I- 1129, para 11 [50] Case C-127/08 Metock v Minister for Justice [2008] ECR I - 6241, para 78 [51] This was implemented in the UK by the Immigration (EEA) Regulation 2006 (SI 2006/1003) [52] Article 1 of Directive 2004/38EC [53] Article 288 of the TFEU [54] Article 14(2) of Directive 2004/38EC [55] Case C-34/09 Ruiz Zambrano [2011], para 42 [56] K Puttick (n 11) 292 [57] Case C-209/03 Bidar [2005] ECR I-2119 [58] Ibid para 51 [59] Recital 23 of Directive 2004/38EC [60] Case C-85/96 Martínez Sala v Freistaat Bayern [1998] [61] F Weiss and C Kaupa, European Union Internal Market Law (1st edn, Cambridge University Press 2014) 115 [62] Article 24 of Directive 2004/38EC [63] Case C-406/04 De Cuyper v Office national de l’emploi [2006] para 42 [64] Ibid para 43 [65] Case C-145/09 Land Baden-Wurttemberg v Tsakouridis [2010] ECR I-11979, para 50 [66] Case C-138/02 Collins v Secretary of State for Work and Pensions [2004] ECR I -2703, para 30 [67] Ibid 40 [68] R White, ‘Free movement, equal treatment, and Citizenship of the Union’ (2005) 54(4) ICLQ 885, 897 [69] Article 6(2) of 2004/38EC [70] Article 6(1) of Directive2004/38EC [71] Article 16(1) of Directive2004/38EC [72] Article 3(i) of Treaty of Rome 1947 [73] Ex Article 39 TEC [74] Case C-334/94 Commission v France – Registration of Vessels [1996] ECR I-1307, para 21 [75] Case C-66/85 Lawrie-Blum [1986] ECR I-2121; see also Case C-196/87 Steymann [1988] ECR I-6159 [76] Case C-413/01 Ninni-Orasche [2003] ECR I-13187, para 32 [77]Case C-14/09 Genc v Land Berlin Case [2010] 2 CMLR 44 [78] Case C-41/71 Van Duyn v Home Office [1971] ECR I -1337, 1352 [79] Ibid [80] REGULATION (EU) No 492/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 5 April 2011 on freedom of movement for workers within the Union (codification) (Text with EEA relevance) [2011] OJ L141 [81] The European Parliament and Council Regulation 1612/68 on freedom of movement for workers within the Community [1968] OJ L257/2 [82] Article 7(1) workers regulation 492/2011 [83] Article 9 of workers regulation 492/2011EC [84] Ibid, Article 7(2) [85] Ibid [86] Case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions [2014] PTSR 1448 [87] Case Analysed in-depth in Chapter 5 [88] Case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions [2014] PTSR 1448, para 24 [89] Article 14 of Directive 2004/38EC [90] Case C-363/89 Danielle Roux v Belgian State [1991] ECR I-273, 16 [91] Article 3(2)(a) of 2004/38EC [92] Ibid [93] Ibid, Article 24 [94] Case C-34/09 Ruiz Zambrano [2011] ECR I-01177 [95] A TCN is someone who is not an EU Citizen [96] Case C-34/09 Ruiz Zambrano [2011] ECR I-01177, para 44 [97] Article 7(3)(b) of Directive 2004/38EC [98] Article 45(2) of TFEU [99] Article 24(2) of Directive 2004/38EC [100] Ibid, Article 14(4)(b) [101] Case C-138/02 Collins v Secretary of State for Work and Pensions [2004] ECR I -2703 [102] Ibid, para 63 [103] Case C-209/03 R(Bidar) v Ealing London Borough Council[2005] QB 812 [104] Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR 1-7091 [105] Ibid, para 94 [106] Article 8(4) of Directive 2004/38EC [107] Article 8(4) of Directive 2004/38EC [108] Ibid, Article 14(3) [109] Ibid [110] Recital 23 of Directive 2004/38EC [111] Ibid, Article 14 [112] Ibid, Recital 16 [113] P Minderhoud, ‘Legislative Comment-Directive 2004/38 and access to social assistance benefits’ [2011] 18(4) JSSL 153, 156 [114] C O’Brien, ‘Real links, abstract rights and false alarms: the relationship between the ECJ's ‘real link’ case law and national solidarity’ (2008) 33(5) ELR 643 [115] Ibid, 643 [116] Ibid,663 [117] Ibid, 663 [118] Case C-184/99 Grzelczyk v Centre Public d'Aide Sociale d'Ottignies-Louvain-la-Neuve [2001] ECR I-6193, para 32 [119] Ibid, 652 [120] C O’Brien, ‘Real links, abstract rights and false alarms: the relationship between the ECJ's ‘real link’ case law and national solidarity’ (2008) 33(5) ELR 643 [121] Ibid, 655 [122] Recital 37 of 883/2004EC [123] Rectal 1 of 883/2004EC [124] Ibid [125] Ibid, Recital 24 [126] Case C-456/02 Trojani v Centre publique d'Aide sociale de Bruxelles [2004] ECR I-7573 [127] Ibid para 37 [128] K Puttick (n 11) 284 [129] F Weiss and C Kaupa, European Union Internal Market Law (1st edn, Cambridge University Press 2014) 135 [130] Case C-22/08 Vatsouras v ARGE Nürnberg [2009] ECR I-04585 [131] Case C-140/12 Pensionsversicherungsanstalt v Brey [2014] ECR 00000 [132] Ibid, para 77 [133] Ibid, para 80 [134] Article 14 of Directive 2004/38EC [135] Case C-184/99 Grzelczyk v Centre Public d'Aide Sociale d'Ottignies-Louvain-la-Neuve [2001] ECR I-6193, para 43 [136] C-140/12 Pensionsversicherungsanstalt v Brey [2014] paras 39 [137] Ibid, para 77 [138] Strict conditions are regulated by Title III, Chapter 6, Articles 61-65 of Regulation 883/2004EC [139] Case C-333/13 Dano v Leipzig [2014] [140] Ibid, para 78 [141] Recital 37 of Regulation 883/2004EC [142] Lenaerts and Heremans, ‘Contours of a European Social Union in the Case-Law of the European Court of Justice’ (2006) 2 Eur. Consititut. Law Rev. 101. [143] K Puttick (n 11) 292 [144] Regulation 6(1) of Immigration (European Economic Area) Regulations 2006 ‘worker, self-employed, jobseeker, self-sufficient person or student’ [145] Model example is given in Income Support (General) Regulations 1987 21AA where a list of ‘persons not from abroad’ [146] Article 13(3)(b) of Immigration (European Economic Area) Regulations 2006 [147] Accession (Immigration and Worker Registration) Regulations 2004 (Introductory text) [148] S Currie (n 25) 53 [149] K Puttick (n 11) 282 [150] P Larkin, ‘A policy of inconsistency and hypocrisy: United Kingdom social security policy and European Citizenship’ (2010) 31(1) JSWFL 33, 35 [151] Ibid, 39 [152] Ibid, 37 [153] Ibid [154] Ibid [155] S Currie (n 25) 56 [156] P Larkin, (n150) 42 [157] For the full accurate list please see paragraph 17 of Schedule 7 to the Income Support (General) Regulations 1987 [158] P Minderhoud ‘Legislative Comment-Directive 2004/38 and access to social assistance benefits’ [2011] 18(4) JSSL 153, 156 [159] Nessa v Chief Adjudication Officer (1999) 4 All ER [160] P Larkin, (n150) 37 [161] Trojani para 18 [162] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 [2011] 1 WLR 783, para 61 [163] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 [2011] 1 WLR 783 para 46 [164] Case C-456/02 Trojani v Centre publique d’Aide sociale de Bruxelles [2004] ECR I-7573 [165] Case C-456/02 Trojani v Centre publique d’Aide sociale de Bruxelles [2004] ECR I-7573, para 71 [166] Case C-333/13 Dano v Leipzig [2014], para 76 [167] EU Commission Notice IP/10/1418 Free Movement of Workers: Commission Requests UK to End Discrimination on other Nationals' Right to Reside as Workers (Brussels: 28 October 2010) [168] Puttick (n 11) 292 [169] Accession Monitoring Report 2004-2008 (Home Office/UKBA et al, 2008) p 23 [170] Report from the Commission to the European Parliament and the Council on the Application of Directive 2004/38/EC on the Right of Citizens of the Union and their Family Members to Move and Reside Freely within the Territory of the Member States', Brussels 10.12.09 COM (2008) 840 Final [171] Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ] ECR 1-7091 [172] F Weiss and C Kaupa, European Union Internal Market Law (1st edn, Cambridge University Press 2014) 201 [173] Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24, para 69 [174] Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310 [2009] 2 CMLR 3 [175] Case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions [2014] PTSR 1448 [176] Section 17 of Schedule of the Income Support (General) Regulations 1987 [177] Section 5 of Immigration (European Economic Area) Regulations 2000. [178] Article 16(3) of Directive 2004/38EC [179] Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24 [180] Regulation 2(4) of Accession (Immigration and Worker Registration) Regulations 2004 [181] Section 5 of The Accession (Immigration and Worker Registration) Regulations 2004 [182] Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24 para 36 [183] Ibid para 39 [184] Ibid para 44 [185] Ibid para 44 [186]Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24 Para 79 [187] Ibid para 29 [188] Ibid para 49-56 [189] Ibid para 48 [190] S Currie (n 25) 54 [191] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11; [2011] 1 WLR 783 [192] SI 2002/1792 [193] Ibid reg (4) that ‘A person is not to be treated as not in Great Britain if he is - (a) a worker … (b) a self-employed person…’ and is otherwise within the scope of the directive. [194] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11; [2011] 1 WLR 783 para 20 [195] Regulation 2 of 2002 states A person is to be treated as not in Great Britain if he is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, [196] Case C-73/08 Bressol v Gouvernement de la Communaute Francaise [2010] 3 CMLR 20 [197] Ibid para 60-62 [198] Ibid para 104 [199] Ibid para 103 [200] Case C-456/02 Trojani v Centre publique d’Aide sociale de Bruxelles [2004] ECR I-7573 [201] K Puttick (n 11) 292 [202] K Puttick (n 11) 292 [203] K Puttick (n 11) 292 [204] S Currie (n 25) 56 [205] S Currie (n 25) 57 [206] S Currie (n 25) 57 [207] S Currie (n 25) 52 [208] Case C-53/81 Levin [1982] ECR-I 1035 [209] S Currie ‘”Free" movers? The post-accession experience of accession-8 migrant workers in the UK’ (2006) 31(2) ELR 207, 226 [210] K Puttick (n 11) 284 [211] Article 4 of 883/2004EC [212] Article 2 of The Treaty of Rome 1947 [213] Case C-333/13 Dano v Leipzig [2014], para 74 [214] Case C-34/09 Ruiz Zambrano [2011], Opion of AG Eleanor Sharpston para 127-129 [215] K Puttick (n 11) 292 [216] Accession Monitoring Report 2004-2008 (Home Office/UKBA et al, 2008
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