‘Citizenship of the Union is intended to be the fundamental status of nationals of the Member States’.[1]
Reconciling European Unions (hereinafter-EU) free movement rights with the United Kingdom’s national solidarity has heightened over the past decade due to ten new countries joining the EU.[2] This has proven to undermine Eastern Europeans’ free movement rights flowing from their Citizenship status, which is one of the most significant rights afforded.[3] This essay will look at the legal rights of residence of Central and Eastern European nationals, (CEE[4]) nationals in the United Kingdom and the circumstances in which those rights can be derogated from. ‘Unfounded obstacles’ [5] were put into place under the UK law as there was and still is an ongoing fear of an influx of ‘cheap workforce’ migrating to the United Kingdom, simply to take over British jobs or make use of the social welfare system that is offered to UK nationals. The barriers were put up, primarily out of fear that Citizens of the Union will use their right of free movement to migrate to states with high levels of social assistance.[6] Despite that Eastern Europeans were conferred the status of Citizens of the European Union and are allowed to reside freely within an EU host Member State, it has been revealed that they will be denied residence rights. One of the reasons for denying residency is when a Citizen is unable to show that they are ‘self-sufficient’ or when they become an ‘unreasonable burden’ on the host Member State’s[7] social welfare system.[8] Thus, recent UK case law suggests that having a ‘right to reside’, especially[9] within the UK implies that one needs to be ‘economically active’[10] by being employed in the host Member State, so as to contribute to the economy by paying the relevant taxes.[11] It has been argued that free movement conditions, even under EU law ‘may lead to the paradoxical conclusion that Citizens having exercised their right to free movement would have to meet the strict requirements’[12] whereas static Citizens who remain in their home state would not undergo such unfavourable treatment. The previous view is exacerbated especially, in various UK case law concerning Eastern Europeans, analysed in chapter four of this essay, which prove that the measures taken by the United Kingdom Courts to prevent economically inactive EU Citizens from residing within its territories are, in fact, ‘discriminatory’, and ‘disproportionate’.
For the purposes of proving that the UK are contending with their community obligations through denying Eastern Europeans the right to reside within its territories, an analytical and objective stance will be taken.
i) Research question
Are the UK rules on depriving Eastern Europeans of social benefits compatible with EU law?
ii) Research purpose
The research question at hand will aid in the clarification of the ongoing hostility revolving Eastern European nationals residing within the United Kingdom. It will also provide evidence for that UK law consists of ‘unfounded’ barriers that restrict free movement rights of Eastern Europeans.
iii) Significance of research question
A lot of Eastern Europeans are migrating in search for work by invoking their free movement rights through recently being conferred Citizenship status.
iv) Research objectives
● To outline the legal framework of free movement rights derived from the Treaty on the Functioning of the European Union[13] (hereinafter-TFEU) and the measures adopted to give these rights effect under secondary sources such as the Citizens Directive 2004/38 EC[14] (hereinafter-CRD)
● To analyse the residence rights of Citizens who are economically inactive in EU law
● To prove that the United Kingdom laws directed towards limiting the free movement rights of EU Citizens are discriminatory and disproportionate and, especially towards Eastern Europeans.
v) Structure of the investigation
I will provide the reader with a general overview of the speculation revolving Eastern Europeans free movement rights and the transitional measures adopted by the United Kingdom to restrict free movement rights following the accession of the ten new Member States. The need for social protection of EU Citizens will be briefly mentioned followed by the historical development of free movement rights in the EU.
I will introduce the notion of Citizenship. The principle of proportionality and the Treaty rights on non-discrimination between Citizens will be examined to further the argument that Eastern Europeans ought to be equally treated as Citizens from the ‘older’[15] Member States. A general background of the beneficiaries of free movement rights will be introduced and also their rights under EU law to receive social assistance.
I provide the reader with the obstacles encountered in exercising the right to equal treatment and also when EU Citizens rights of residence may be denied. The focus will mainly remain on economically inactive EU Citizens. Notions of ‘sufficient resources’ and ‘unreasonable burden’ will be analytically examined through the embodiment of the ‘real link test’.
I will introduce the UK law compatibility with EU law in relation to residence and social security rights. This chapter will mainly focus on UK legislation, following a critical evaluation of provisions enshrined in it.
The speculation revolving Eastern Europeans’ rights of residence in the United Kingdom
The Treaty of Accession was marked by widespread speculation and resentment[16] on a political level in the UK as concerns heightened tensions about the proposed harms they might generate to the UK welfare system. The UK Government feared an influx of cheap labour from Eastern Europe that would harm the labour market as evidenced by Gordon Brown’s famous speech declaring that ‘British Jobs [ought to be] for British workers’.[17] Furthermore, there were doubts that the enlargement would undermine the ‘European Social Model’[18] which promotes the common objective of Member States to endorse economic growth and set high living standards and good working conditions for all its Citizens.
Despite the fact that in order to join the EU, Member States have to fulfil certain standards, economical too, the difference between the standards is vast. The graph below is taken from 2007 and indicates the statutory minimum wage in some EU countries. Graph I: Minimum wage in EU-countries (2007)
In Bulgaria, as indicated above, the monthly wage was 92 euros whereas in Luxembourg it was 1,570 euros per month. Moreover, the unemployment rate in Eastern Europe is higher, whereas the wage-costs and standards of living drastically lower in comparison to the rest of the EU Member States.[19] Thus, repercussions of opening up the borders from the east to the west may prove to be to be futile to the ‘old’ Member States economies. Furthermore, giving access to the UK labour market for the purposes of residing here raises two sides to the same coin. Firstly, Eastern Europeans may be exploited or, conversely may contribute to the economy in the capacity of workers due to the cheap labour that they provide. Alternatively, they may show up as ‘benefit tourists’[20] in search for free benefits. In 2013, Prime Minister David Cameron stated that ‘Bulgarians and Romanians will face new rules limiting their ability to claim benefits’[21] and told UK voters that he shared their concerns over EU migration.
Transitional measures adopted in the UK
Ten ‘new’ Central and Eastern European (hereinafter-CEE)[22] countries acceded the European Union in 2004 and 2007 by signing the Treaty of Accession. This entailed that Eastern European nationals became Citizens of the European Union, which, among other rights, entitled them to reside freely within any Member State. As a result, the group of fifteen established ‘old’ EU Member States [23] were allowed to put into place transitional arrangements[24] restricting the new Member States’ Citizens from entering their country for up to seven years. The United Kingdom adopted an ‘open policy’[25] as compared to other EU Member States which meant that Eastern European nationals were required to register with the Worker Registration Scheme (WRS)[26], so as to legally reside within the United Kingdom.[27] This in turn disentitled them from receiving ‘Special Non-contributory Benefits’ (hereinafter-SNCBs) unless they had been in continuous employment with the same employer for a period of twelve months.[28]The transitional measures illustrate that Eastern European nationals did not receive a Citizenship that was analogous to the ones conferred to the established ‘old’ western European Members States despite the fact that under EU law, discrimination between different categories of EU nationals is prohibited.[29] The transitional measures put in place in the UK ended in relation to all Eastern Europeans on 1st January 2014.[30] This essay will focus on post-2014 cases involving Eastern Europeans where the WRS may be mentioned to illustrate the measures taken to prevent their rights of residence in the United Kingdom.
Social protection of EU Citizens
Oftentimes, there is a conflict between the host Member State’s social objectives and economic objectives by permitting persons to freely reside within their territories. Free movement of Citizens within the EU may come at the expense of a common Euro-solidarity.[31] It is crucial to identify which objective outweighs the other. The existence of derogations from Treaty rights implies that Member States, not at all costs, have to comply with their duties. It is questionable when the scales will weigh in favour of the claimants circumstances on the one hand and on the other hand will weigh towards the UK governments need to safeguard its social welfare system which will also yield a battleground for which the claimant will struggle. For instance, workers are almost always conferred the right of residence in Member States, which in turn contributes to the economic development of the host Member State, however this in turn bears implications for the social security field. What would the outcome be if a Union Citizen loses their job whilst in the host Member State?
The rational answer would be that social assistance, such as income support or jobseekers allowance, should be available to an unemployed Citizen, as otherwise, it would place that Citizen in the most vulnerable position, unemployed and without security for survival. Hence, it has come to show that ‘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’.[32]
This is despite that under EU law, Regulation 883/2004EC on the application of unified social security schemes throughout the Member States exists to protect vulnerable groups of Citizens and provide them with equal opportunities as the nationals of the host Member State.[33] It is highly possible that common social security solidarity within the EU may weaken the Member State’s ability, and national parliament’s sovereignty to regulate internal matters on grants of social security. Of course, Member States need to protect their economies from ‘benefit tourism’,[34] however should that come at the expense of undermining the community goals of social and economic solidarity set out in The Treaty of Rome 1947 by ‘raising the standard of living and closer relations between the States belonging to it’.[35]
Through ascertaining that UK laws governing social security are incompatible with the EU law, it can be proven that, indeed Eastern Europeans are being denied their free movement rights and which thereby devalues their Citizenship status. Despite the fact that the Transitional measures of 2004 are no longer in place the pattern of unfavourable treatment towards Eastern Europeans continues as will be evidenced by cases such as Zalewska[36], Kaczmarek[37] and Patmalniece.[38] In these cases three Eastern Europeans were denied social security and thereby their residence rights, despite the fact that their personal circumstances were such that they could not pursue their employment in the UK. On the other hand, in Prix,[39] in which a preliminary ruling under 267 of TFEU was requested by the UK Courts to the CJEU the claimants residence rights were upheld because her personal circumstances were taken account of, ‘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’.[40] Were the decisions concerning the Eastern Europeans proportionate? Equally, why were the measures taken concerning the three Eastern European claimants not proven to be discriminatory in relation to the personal circumstances of claimants?
CHAPTER 2 BACKGROUND
2.1 Citizenship and free movement rights
European Union Citizenship, by ‘putting flesh on the bones’[46] adds to the Member State nationals’ rights. In order for a person to live and reside freely within a host Member State they must first satisfy the criteria of being a Citizen of the European Union. The identity of the European Union Citizen is supplementary to national Citizenship.[47] The Treaty on Functioning of the European Union lays down the main provision establishing EU Citizenship;
Article 20(1)
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.
In order to reside freely, the above provision must be read together with the below provision, stating;
Article 21(1)
‘Every Citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’.
Thus, there must be a cross border-element involved in order for the Article 21 to be invoked. Activities that are purely internal are those ‘which have no factor linking them with any of the situations governed by Community Law and which are confined in all relevant aspect within a single Member State’.[48] The provision does not have effect to situations which are wholly internal to a Member State[49] and thus, ’any difference in treatment between those Union Citizens and those who have exercised their right of freedom of movement, as regards the entry and residence of their family members, does not therefore fall within the scope of Community [Union] law’. [50] Rights of free movement of EU Citizens and ‘the measures adopted to give them effect’ are predominantly covered by Directive 2004/38EC [51] referred to as the ‘Citizens Directive’. The Directive covers matters concerning;
a) the conditions in which Union Citizens and their families may exercise their right to move and reside freely within the twenty eight Member States
b) right of permanent residence
c) restrictions on the rights mentioned above on the grounds of public policy, public security or public health.[52]
The Directive is made up of Citizenship rights that the CJEU has established overtime. It should be noted that the effect of a Directive is that it will be binding on the Member State, yet the choice of the forms and methods in which that result is achieved will be left for the national authorities to determine.[53] This leaves the United Kingdom national authorities with considerable leeway in giving effect to the rights under the Directive, which has proven to be an obstacle for economically inactive Citizens invoking their free movement rights. There are a vast amount of cases where UK national laws have intervened with the free movement rights of Citizens afforded by the Citizens Directive. EU Member States are required ‘not to systematically’ verify the conditions that have been fulfilled to grant residence rights.[54] This in turn implies that other factors, such as proportionality and personal circumstances must also be taken account of.
It is established that ‘Article 20 TFEU precludes national measures which have the effect of depriving Citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as Citizens of the Union’.[55] However, ‘clearly, the system by which EEA [EU] nationals and their family members acquire and retain residence rights is problematic in key respects.[56]
i) Equal treatment between EU Citizens based on non-discrimination
Part II (articles 18-25) of the TFEU is titled ‘Non-discrimination and Citizenship of the Union’ and asserts the discrimination on the grounds of nationality shall be prohibited in respect of all EU Citizens. When Articles 18 on discrimination (ex Article12 EC Treaty), Article 20 on Citizenship (ex Art. 18 EC Treaty) and Article 21 free movement are read together they establish equal treatment and non-discrimination towards citizens freely residing in host Member States. Conjunctively, they impose an obligation on the host Member State authorities to not take any discriminatory measures against a national belonging to another EU Member State, regardless of the fact that they are a worker or economically inactive. In effect this means that the application of Article 18 concerning non-discrimination is triggered only when Union Citizens (personal scope) migrate so as to freely reside in another Member State (material scope) as per Article 21 of TFEU.
It should be clarified at this point that direct discrimination should be distinguished from indirect discrimination. Direct discrimination only occurs through explicitly restricting residence rights on the basis of nationality.[57] Indirect discrimination ensues when a measure or provision is neutral in its content, yet creates adverse effects in relation to non-nationals.[58]
In addition, when discriminatory measures are taken, they must be ‘objectively justified’[59] in order for a non-national to be treated with the similar rights as a national of the host Member State. Thus, the circumstances of non-national and national must also be objectively comparable in order for the migrant to ascertain equal-treatment. An example of the above can be drawn from the case of Martinez Sala[60] where a Spanish national was denied the right to receive child benefits due to her inability of produce a residence document, which was held to be discriminatory since the German authorities would not have needed ask a German national to produce a residence document. Where a person does have ‘sufficient resources’ and ‘health insurance’ to reside in the host Member State for a period exceeding three months, then the retention of residence rights must be subject to the proportionality principle. [61]
Furthermore, equal treatment is reiterated in CRD 24 stating that ‘Union Citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty.’[62]
ii) Proportionality principle
The proportionality principle consists of three elements:
● National measure taken must secure the objective that it seeks to pursue.[63]
● The measure cannot go beyond what is necessary to attain it i.e. there must be no other less restrictive measure that can be taken that would lead to the same result. [64]
● The measure taken must be in the public interest and has to outweigh the interest of the individual member who wants to freely live and reside within the host Member State.[65]
Thus, in Collins[66] the CJEU concluded that a person cannot be denied the right to claim jobseekers allowance in the UK merely due to the fact that they are not habitually resident and the rejection must only be justified if it is based on other criteria, including proportionality, and not purely on the applicant’s nationality. [67] The judgement in, Collins has aided the UK Courts in adopting that there should be a ‘genuine link’ or ‘real link’ between the applicants level of integration with the UK when assessing whether someone is ‘habitually resident’[68] outlined in detail in Chapter 4.
[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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