By Victoria Egerton @VictoriaEgerto2
‘Benefit Tourism’ is a phrase that the media and politicians overuse, without much consideration of the reality of EEA migrant’s actual fiscal impact on the UK economy. It is the implicit idea that some EEA migrants come to the UK with the purpose of claiming welfare benefits.
EEA migrants have the right to claim certain social welfare assistance in the residing Member State (1). EC Regulation 883/2004 Article 4 provides that although States must not discriminate directly or indirectly on grounds of nationality, discrimination may be justified where there is a “proportionate and legitimate aim” on grounds of public policy, social security and health.
States can restrict the rights of EEA migrants to ensure that they do not become an “unreasonable burden” on the host Member State (2). To claim certain income-related benefits in the UK, EEA nationals must pass the right to reside test and the habitual residency test.
There have been historic concerns with legality of the right to reside part of the habitual residency test and the Commission issued a reasoned opinion. However more recently the Attorney General in Commission v UK (3) (see also the ruling in Dano) the AG reasons that the Commission should stop further pursuit against the UK regarding discrimination of EEA nationals regarding family benefits. The reasoning itself is questionable. For further information on this see the recent article by Dr Charlotte O’Brien (4).
EEA migrants are often presented as benefit tourists and squanderers. In reality claiming welfare benefits is much more restrictive in practice than you will have heard and there is no scientific, factual or otherwise imperial evidence to suggest that they are a fiscal drain on the UK economy.
- Benefit tourism- does it exist?
The UK government have failed to evidence benefit tourism to Strasbourg (5). The OECD Migration Outlook Paper and research from the Centre of European Reform suggests that the majority of EEA migrants come to the UK to Work (6). Dustman’s research (7), the Outlook Paper and more recently the Migration Observatory report (8) shows that EEA migrants provide a small fiscal gain to the UK economy (9).
- Three month rule when claiming income-based Job Seekers Allowance, Child Benefit and Child Tax Credits
As of 1st January 2014, EEA nationals who come to the UK as jobseekers cannot be treated as habitually resident in the UK (for the purposes of income-based Job Seekers Allowance), until they have resided there for three months. It then must be decided if they are actually habitually resident (10).
This also now applies to Child Benefit and Child Tax Credits where the EEA national (or the applicable family member) arrived in the UK on or after the 1 July 2014 (11).
To claim Disability Living Allowance/ Personal Independence Payment, Attendance Allowance or Carers Allowance (from April 2013) an EEA national must be present in the UK for 104 of the last 156 weeks.
- Period of entitlement
After the initial 3 months, EEA jobseekers can claim income-based JSA for a total of 91 days. This may be extended where there is compelling evidence that they are job seeking and have a genuine prospect of getting work. If they leave the UK for a year or more, a new claim can commence. If the period is less than a year again, ‘compelling evidence’ of a genuine chance of finding work must be provided. This includes an accepted job offer (12).
- Housing Benefit restrictions
As of 1 April 2014 EEA national jobseekers or family members of EEA jobseekers cannot claim Housing Benefit when receiving income-based JSA(13). A JSA claimant that is over 25 will receive £73.10 per/week and those aged 18- 24 years, receive a startling £57.90 p/week. This is not enough income to pay household bill, eat and pay rent. The restriction does not affect UK nationals.
The ruling also has a further impact on entitlement to JSA. EEA migrant’s that are working for example, have their hours reduced and now earn less than £73.10 p/week may be entitled to a top-up of JSA. However, if they claim JSA they will lose their Housing Benefit.
- Minimum Earnings Threshold
To have the right to reside as a worker or self-employed person, the work that EEA nationals do must be genuine and effective. In order to be entitled to Working Tax credits EEA migrants must pass a two-stage test.
- Minimum earnings threshold: have a gross average weekly income of at least £153 p/week.
- If the threshold is not met, consideration must then be given to the facts of a case to determine if work is genuine and effective
A UK national single parent must work 16 hours per week to earn £153 at minimum wage. An EEA national would need to work 24 hours per week. This is very difficult for a single person.
3 things you can do:
“Public perception is a key driver of discriminatory behaviour”
- Do not believe everything you read. Read up on the fiscal impact of EEA migration and make up your own mind.
- Challenge people with facts when they talk about benefit tourism.
- Lobby your MP – are they supporting further restrictions on EEA rights to welfare assistance?
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1. EC Regulation 883/2004 as amended by Regulation 465/2012
2. Council Directive (EC) 38/2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of Member States
3. Opinion of Advocate General Cruz Villalón delivered on 6 October 2015 (1) Case C-308/14 European Commission v United Kingdom of Great Britain and Northern Ireland http://curia.europa.eu/juris/document/document.jsf?text=&docid=169143&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=62911
4. http://eulawanalysis.blogspot.co.uk/2015/10/an-insubstantial-pageant-fading-vision.html
5. European Commission press release IP/11/1118, 29 September 2011, available at http://europa.eu/rapid/press-release_IP-11-1118_en.htm
6. OECD (2013) International Migration Outlook 2013 available at http://www.oecd.org/els/mig/imo2013.htm, European Commission, (2013) A fact finding analysis on the impact on the Member States’ social security systems of the entitlements of non-active intra-EU migrants to special non-contributory cash benefits and healthcare granted on the basis of residence. ICF GHK in association with Milieu Ltd
7. Christian Dustman and Tommaso Frattini, The Fiscal Effects of Immigration to the UK’ (2013) Centre for research and analysis of migration discussion paper 22/13
8. http://www.migrationobservatory.ox.ac.uk/briefings/fiscal-impact-immigration-uk
9. OECD (2013) International Migration Outlook 2013 available at http://www.oecd.org/els/mig/imo2013.htm
10. See Decision Makers Guidance 072986, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/470826/dmgch0703.pdf SI 2013/3196 Jobseeker’s Allowance (Habitual Residence) Amendment Regulations)
11. The Child Benefit (General) and the Tax Credits (Residence) (Amendment) Regulation 2014 (SI. No 2014/1511)
Case C-308/14, European Commission v United Kingdom of Great Britain and Northern Ireland, delivered on 6 October 2015, Opinion of Advocate General Cruz Villalón available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=169143&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=62911
12. SI 2014/1451 Immigration (EEA) (Amendment Regulations)
13. SI 2014/539 Housing Benefit (Habitual Residency) (Amendment) Regulations
