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Thursday, September 05, 2013

What could reform of EU free movement rules and access to benefits look like?

Tomorrow's front page of the Times features an interview with David Cameron in which he drops a strong hint that one of his first priorities for EU renegotiation/reform will be tightening up EU free movement rules and EU migrants' access to benefits.

This is the first time Cameron has floated the idea so explicitly - though the Times had a story a few weeks back precipitating yesterday's comments by the PM.

As regular readers know, we believe EU free movement has brought about clear benefits, but for public confidence to be maintained in this area, there needs to be clearer and more effective rules around access to benefits in particular. So Cameron is right to target this area.

This has become a hugely complicated and technical area as the boundaries of EU law have been extended through ECJ case law. That, and the fact that the EU has enlarged to include a huge variety of nations with different levels of wealth and domestic welfare systems, mean that the existing rules are no longer fit for purpose and risk (further) undermining public confidence in the original idea of free movement of labour.

So what can Cameron do? Well, the UK already has the support of Austria, Germany and the Netherlands, for an overhaul of the existing rules, particularly the ability for new migrants to claim benefits in another member state despite not necessarily having been employed or paying taxes there.

Following our own research and our work with the APPG on European reform on this issue, we have suggested the following reforms - which would require changes to existing EU rules but not the treaties:
  • Firstly, rights of residence in another member state should be more closely linked to being in work or self-sufficient. This could be achieved by strengthening and clarifying the definition of habitual residence in EU legislation to ensure that rights of residence (after the initial three month period in the Rights of Residence (also known as the Free Movement) Directive) are dependent on a genuine economic link to the host country such as being in work, being self-sufficient and removing the right of residence as a job seeker unless someone has been in employment in the host country for a certain period. When determining whether an EU citizen is a “burden” on the welfare system, the host member state should be allowed to apply general thresholds for the income/resources that person is required to have.
  • Secondly, the EU’s rules on social security should be amended to ensure there is no access to a host member state’s benefits without the person having the right of residence in that country under the Rights of Residence Directive. Where the Rights of Residence Directive currently speaks about the host country’s “social assistance system”, the Directive could explicitly include all state welfare.
  • Thirdly, the rules on family benefits should be tightened so that people cannot claim for non-contributory benefits such as Child Benefit if their child is not living with them in the host country.
  • Fourthly, the requirement for equal treatment with nationals of the host member state should be removed for EU citizens without a permanent right of residence in the host member state when it comes to the provision of state welfare that is in particularly scarce supply, such as social housing.
This would allow member states to continue to operate distinct welfare systems - the UK's universalist system is different to the contribution based systems often found elsewhere, which is largely why the UK has found itself in trouble with the European Commission over its 'right to reside' test for access to benefits. 
The overall effect would be to instill a principle whereby access to benefits is tied to economic contributions.


Rik said...

The right to benefits is just one of the problems and likely not the biggest one.

1. Countries should learn to think first and sign up later. This was so predictable. Everywhere in the world you see massive moves from poor to rich countries. Even when legally it would not be possible.

2. Completely naive to think as well that countries like Bulgaria and Rumenia would have catched up in less than a decade.
Lessons for the future as there is still a waiting list with European 3rd world countries. That free movement should be regulated until these countries have reached a certain level of economic development.

3. These countries also have often large dysfunctional groups. Like the Sinti and Roma. Whatever the reason of the dysfunctionality it seems impossible to sell to the locals that there is a massive influx of these people in say the UK. The UK or Germany is not there to solve eg Bulgaria's social issues. This should with new accessions be taken into consideration as well.

4. Minorities in even poorer 3rd world countries (Turks in Bulgaria for instance). Possibilities of granting new passports of the new members to outside groups whatever the link should be limited at accession.

5. Hard to see how you can completely reverse the present problem countries. All should agree and eg Rumenia agreeing that its rights are limited, will be a very difficult one.

6. On the other hand say the UK population is not letting politics getting away with it. There likely will be considerable electoral consequences if this is not properly managed.

7. Becomes more and more clear what a proper estimate of future Rumanian/Bulgarian immigration will be probably around 250 K for the first 2 years. Compared with present numbers, Germany and polls in the Balkan. Nearly all indicate roughly something like this. Difficult to estimate anyway. But it will be increasingly difficult to hide behind numbers or not knowing them.
Depends a bit how of the composition thereof (basically the leass Roma the better) but this has voter uprising written all over it. And in the middle of electiontime (well other way around).

8. The problem with these groups (unlikely the Poles probably now) is that they are poorly educated, usually have a language problem and come from a different culture with possibly integration problems.
The second layer of problems usually is that they bring families and the third that after some time they start to behave like the locals in the same social economic class. Meaning highly overrepresented on the entitlement front.

9. Simply looks that any not Western/civilised country (like Japan) immigration is a hard sell nowadays to the locals.
EU rules basically making it legally poossible will put the relation UK-EU (and of a few others)under enormous pressure.
Especially also seen the fact that the UK and nearly everybody else's immigration authorities are simply dysfunctional. So even if new rules can be put in place they are very likely not properly working at best. But probably more a dead letter. Meaning that even new rules a sproposed above will likely not limit the inflow very much and certainly not in the conception of large groups of voters.

Anonymous said...

Fifthly, uphold the pillars of UK democracy and give the electorate their Referendum aka vote of no confidence.

Current immigration to the UK from the Mananazone reflects CONTAGION. The EU/Mananazone will avoid any change as it is just another way of getting someone else (i.e. the UK) to pay for THEIR incompetence and THEIR problem.

In the meantime, here in the UK our traditions and way of life continue to be eroded and public debt levels explode as we continue to provide benefits and services to those who have not contribued one penny and/or who have nothing to contribute.

Our children have a total UK debt of over GBP1.2Trn to repay because silly politicians cannot make the hard decisions or have handed over decision making powers to third parties with no mandate from their own electorate. This is treason, surely?

UK out.


Anonymous said...

PAy National Insurance for a minimum of 5 years before you are entitled to ANY benefit.

And that includes 'free' schooling, housing, health care and parental entitlement to additional Child Benefit and Housing Benefits, Income Support (etc etc etc).

No pay, no get.


Jesper said...

"This has become a hugely complicated and technical area as the boundaries of EU law have been extended through ECJ case law."

I've never been a fan of case law, sometimes it is necessary but the separation of the duties between judiciary and the legislative is important.

The treaties are far from perfect and some definitions and aspirations are so vague (for instance what does 'ever closer union' really mean?) that it cannot be left for unelected, if ever so well qualified, officials to rule on and by them.

Has the ECJ or the EU commission ever sent anything back to elected politicians and told them to face up to their responsibilities and improve/clarify the treaties themselves?

Anonymous said...

The answer should be that the country from where they come from should pay all their benefits not the country they go to, we wouldn't have the problem for long because then the non working immigrants who are no benefit to the country they have gone to will not be able to afford to live in that nation. I have no problem giving them a one way ticket on the eurostar to Brussells.

Average Englishman said...

O.E. Says:

"As regular readers know, we believe EU free movement has brought about clear benefits, but for public confidence to be maintained in this area, there needs to be clearer and more effective rules around access to benefits in particular. So Cameron is right to target this area."

Err, what real benefits and for whom exactly? Cheap labour to the UK to keep the pay low for indigenous UK unskilled workers and provide nannies for Dave and his tribe? Yes, immigration has kept UK inflation down but it only postpones the need for the changes that are required to make the UK economy more productive.

Opinion polls consistently say that a majority of the UK population is firmly against the uncontrolled EU immigration that has resulted from the UK's EU membership and no tinkering at the edges with benefits payments by our great party leader 'Dave the out of touch (even with his own MP's)', is going to make a halfpenny's worth of difference to this. The OE, Dave and most of the current set of career politicians on all sides of The House of Commons need to wake up and accept that major changes are required right now to permit the UK to stop this immigration or they will face the consequences at the ballot box. The UK population are a tolerant bunch but a massive influx of Bulgarians and Rumanians next year is likely to tip the balance in my view. There will be trouble and the Average Englishman needs to look no further than Westminster and Brussels to find those responsible.

Denis Cooper said...

What you propose here is totally inadequate, and if it is the most that could be achieved without EU treaty change then obviously there must be EU treaty change.

You may believe that "EU free movement has brought about clear benefits", but the general view of the British people is that any benefits are greatly outweighed by the disadvantages, and in any case at the end of the day we want complete and undisputed control over who is allowed to come and live in our country.

Let me emphasise that - it is "OUR COUNTRY"; whatever some of our politicians may think it is NOT to be treated as just some part of EU territory under the control of the EU; or indeed under the control of anybody else other than us, the body of British citizens.

Rik said...

The ECJ has been given a task that simply doesnot fit in a Trias system. Unlucky imho, should be changed if possible, but nevertheless.

But the ECJ is simply also partly at least forced into that position. If you have crap legislation (political compromise with neglecting all basics of proper legislation) things are almost certain to develop that way (and they did).

A court HAS to decide on a case presented to it. It cannot refer things back as you propose. And it did. It decided for an integration way, pure from an organisational pov it might have taken an other approach as well.
Seen however in the context of an early EU (or whatrever it was called at that time) the integration approach was imho a likely outcome of that process. With few laws in place to make things work they have to be seen in a wider context which at that time didnot have much legislation it could be built upon.

So much for history.
However things have changed. EU laws interfere now with a lot of people's daily lives. And the present conditions in that respect donot demand the integrationist approach anymore.
But it is and will be hard to abolish it at this time. Probably you need a clear explicit treaty change abd follow up on that. If necessary get rid of all the present judges and appoint new ones. People even when laws change have a tendency to go back to old ways and judges are no different.

This is made even worse by the fact that because the legislation has moved into daily life.
A lot of people donot like that fact clearly. The platform (legitimacy) is simply not there for nearly all EU institutions. From EP, to Commission to ECB to ECJ.
It is simply now a situation were you have a constant friction between legitimacy and daily activities of these institutions.
And yes, they have a legal basis. But that is not enough it needs in a democratic society also simply to be carried preferably by a stable and considerable majority and not being unacceptable for minorities at least the major ones.
The EU simply doesnot meet the latter test and in no way.

Which brings me to OE views (and those of myself and a lot of other on the reneg. OE clearly starts from the perspective of what is realistically possible in a negotiation.
My perspective is different I want to work to a situation that is longer term sustainable. Read has the platform described above.
Because of this opinions differ (which is as such only healthy).
2 Howevers however:

1. One has to realise the respective startingpoint also have disadvantages.
OEs that it might be the max possible, but that it is still clearly not enough for the voters that ultimately have to decide.
Mine that getting a bit extreme (in a negotiation) on one issue might spoil your chances on others or overall.
This being a good example. Looks like OE has the max realistic position in a reneg on immigration.
However as described in my earlier comment it is likely not enough now and even more likely not enough in the future to make it acceptable in the UK society.

Overall I would prefer my approach to OEs (otherwise I would not have taken it of course). For the following reasons:
-The EU set up as present is simply not sustainable. In my humble opinion either it has to modernise properly or it has everything in it to become a liability for those involved. In which case you are better out of it. Things like the referendum and the Euro now have been dominating the public agenda for a couple of years with no real solution in sight. It has to be solved one way or another to go forward again and meet the challenges the future gives (aging, role in the world, new trading partners etc.). It cannot only be cleaning up the mess from the past as we have had now.
Hard to see as said earlier that this sort of solutions give the earlier mentioned platform. It will keep giving rise to friction especially in the UK.
2. It looks to be a better starting point for negotiations if you want to achieve more than different sorts of olive oil bottles. Basically show you will fold when things donot happen.

Jesper said...


you seem to be unaware that the legal systems vary. Courts do NOT have to make a ruling in all countries, some countries does demand/allow for having the highest court sending cases out and referring them to the legislative if the laws are not specific enough.

Legislators can't cover everything and judges shouldn't be allowed too much leeway in their interpretation of the law. Relying on case-law by lawyers/judges to do the work of an elected parliament of legislators is a lawyers dream and a citizens worst nightmare.

The current case:
The ECJ is being asked if non-UK EU nationals are being discriminated against compared to UK citizens in the UK when it comes to access to welfare services.
Is there any point of law that is unclear and needs further definition/clarification by legislators or is the problem the courts likely interpretation of the law?

If it is the latter, then tough, if it is the former, then there is a strong argument that this should be referred to legislators.

jon livesey said...

I think my own views on immigration are pretty well-known. I am for it. Any problems you have to deal with in the first generation will be more than compensated by the demographic improvements you will see in the second and later generations.

But I have a different question. How exactly will building an "architecture" for immigration move the EU further in the direction of being an optimal currency area?

And to what level of detail to we want to control immigration? Are we headed in the direction of undoing the free movement of people between the UK and the Republic of Ireland? That would reverse an openness that has operated since the Twenties and which has been of benefit to both countries.

And supposing that Scotland voted for independence - I think it's very unlikely, but still - would Scots who move to R-UK then have to prove some sort of right of residence? That would undo an openness that goes back literally for half a millennium, and which has definitely been of benefit to both countries.

Immigrants are not the problem. They are just a group that are easy to target and to attach a label to. And I think we ought all to be well aware of the dangers that can arise when you start targeting groups just because they are easy to attach a label to.

Finn Skovgaard said...

It has already been suggested by someone else: the problem could be solved by adapting the criteria for when a person is moved from his or hers home country's social system to the new country's system. This would assure that nobody is caught in a gap between two systems, that free movement rights are not affected, and that the new country does not unfairly have to pay welfare to someone who hasn't contributed a lot.

The existing system was designed in 1971 for people moving to another country to work. Quite obviously, it needed adjustments when freedom of movement was generalised, so as to avoid welfare shopping.

If a Romanian welfare immigrant to the UK were to remain on Romanian welfare until he or she had worked and contributed enough to get into the UK system, it would probably moderate the amount of immigration.

The trick is to make changes that make people themselves change behaviour instead of just banning things.

About your child benefit proposal:
"Thirdly, the rules on family benefits should be tightened so that people cannot claim for non-contributory benefits such as Child Benefit if their child is not living with them in the host country."

You forgot to state which country is liable for paying child benefit then. There can be legitimate cases for a parent to work in another country while his family stays at home, and you risk creating a class of second class children if a parent is working elsewhere but can get no child benefit anywhere. Child benefit may not be directly contributory in the UK, but it still is indirectly contributory through tax. It would seem most logical that the child benefit is paid by the country the employee is paying tax and/or social charges to.

The key to this is to make changes that assure that people who move are not thrown out of all social systems, i.e. that if they can't get into the new country's system, then they remain indefinitely in the previous country's system, but that no country is obliged to start paying welfare before an immgrant has genuinely started contributing.

clinihyp said...

why on earth are you giving any credibility to what is little more than a hypothesis?

The Lisbon Treaty makes it crystal clear that the only way, other than unanimous agreement of all the other member states, to renegotiate our position in the EU is by invoking article 50.

Given that it was only last year David Cameron was insisting that It was only last year Cameron was telling us there was not need for a referendum on our membership!

That he has now been forced to change his tune is the direct result of the pressure of Ukip campaigning! Regrettably it is unlikely that Mr. Cameron is sincere!

As Barry Legg,the Former Chief Executive Tory Party put it!

“Having failed to deliver on his promise to oppose Lisbon in office, David Cameron now promises to oppose future treaties transferring power. The whole point of Lisbon is that it does away with such treaties in future. Does David Cameron really not understand this, or is he again trying to play games with words? David Cameron refuses to say how he’ll able to convince every single other EU state to agree to hand back powers to Britain. He refuses to say what he’ll do if they don’t. He refuses to say what time scale he is working to. He refuses to say what he expects to give up in negotiations”

Rik said...

There are a lot of systems around, but by far the most usual is that after it has been decided the court is competent it has to decide the case.
Which is also logical there is apparently a conflict and it has to be decided upon/solved.
We are talking about the UK (and EU) which doesnot by my knowledge (which is far from perfect) and has the 'standard' system. And the EU cf as far as I know.
The only thing they can do is make some noise in different ways if they donot really agree with the legislation.

Mistakes should have been taken out in parliament or via some statecouncil like institution and beforehand.
EU doesnot have something like that and probably if it would it would be manned by the same sort of people.

So you get because it is often a political compromise, technically low quality stuff that is furthermore not checked in a normal way and nearly impossible to change lateron.
Recipe for disaster.

Jesper said...


do you read what you write?
"after it has been decided the court is competent it has to decide the case"
If a court does not have competence then it can't make a ruling. Or in other words, if the legislation isn't good/clear enough then the courts can't make a ruling.
Your statement matches exactly what I wrote and yet you disagree with me, are you being contrarian on principle?

Rik said...

I am apparently missing your point as well. lets call it a day.

Anonymous said...

Jon Livesey

I am not anti immigrant.

We have just escaped (hopefully) the worst depression that the world has ever seen. The UK is GBP1.2Trn in debt and counting.

I cannot see how letting in large numbers of unskilled/manual workers on a minimum wage helps us at all when you consider that they are likely claiming child benefit, tax credits and housing benefits and consuming services such as the NHS. This is just a net cost to the state.

My point is that the numbers and types of skills arriving here makes this socially and economically unsustainable. A good example of this is where I live in Ealing, the UK number 1 hot spot for immigration.