Devil is in the detail on benefit tourism

2 December 2013

EU citizens are free to move anywhere in the union for three months without hindrance and should not face deportation just because they are sleeping rough.

David Cameron was not short of critics this week for his announcement about immigrant benefit curbs. Eurosceptics felt his proposals didn’t go far enough, leftwingers cried ‘too little too late’ and EU officials accused him of being ‘nasty’.

But regardless of the politics, unfortunately for the prime minister, it may be lawyers who put the final boot in. Questions have rightly been raised about how quickly Cameron can introduce the new rules, given the impending January 1 deadline when Romanians and Bulgarians will be entitled to come to the UK for work and from when they can claim benefits here like other EU citizens.

Many in the legal community however are asking can he bring in these new rules at all, given four out of five of his ideas do not in actual fact comply properly with UK existing EU commitments on a legal basis.

‘No out of work benefits for the first three months,’ the prime minister declared. This only works if the migrants are not jobseekers.

‘No benefits after 6 months,’ he trumpeted. This confuses two aspects of EU law. Migrants already only have a right of residence for as long as they have a genuine chance of finding employment. However, if they have a right of residence, they have a right to equal treatment with British job-seekers (for example, including social benefits for more than six months). The second issue is how long does an EU citizen retain the status of a worker after he or she has lost his or her job. This question has not been answered clearly yet by the court.

No housing benefit on arrival” was another promise. This may only be lawful in respect of the economically inactive. As British workers are entitled to housing benefit so too are EU workers – provided they have come to the UK to work or look for work. It would be a breach of EU law to exclude EU workers from housing benefit, no matter how recently they arrived from another member state.

The final idea ‘deporting rough sleepers and barring their re-entry’ is also problematic. People cannot be subject to deportation and an entry ban for rough sleeping if they are EU citizens who are working or seeking work in the UK. Some recent studies indicate that homelessness among working EU citizens in a host state is an increasing problem resulting from low pay and high costs of housing. This problem needs to be met by assuring that they get at least the minimum wage and assisting them to find housing. Secondly, since EU citizens are free to move and reside anywhere in the EU for three months without hinder, they should not be subject to deportation and a re-entry ban just because they are sleeping rough.

So while Cameron’s tough talking announcement yesterday may have played well to headline writers and hit its mark for that purpose, as we have seen before with grand policy announcements, the devil can be in the detail. Right now the prime minister will find it hard to enact his ideas without going outside the law.

This article first appeared in The Law Society Gazette on 29 November 2013.

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