Migrant Union Citizens and Social Assistance: Trying to Be Reasonable About Self-Sufficiency

Gareth T. Davies 

Free University of Amsterdam - Faculty of Law

August 17, 2016

College of Europe Research Papers in Law No. 2/2016 

Abstract:    
The case law of the Court of Justice on social assistance for migrant Union citizens is often regarded as having entered a more restrictive phase in recent years as cases such as Dano, Alimanovic and Commission v UK (residence tests) seem to limit avenues of solidarity that were opened up by the classic earlier judgments, such as Martinez-Sala and Grzelczyk. This paper argues that such an analysis does little justice to either the newer or the older cases, and misses the more important dynamics of the case law, which are not about the slogans as much as the clarity and enforcability of the rules in question.

In fact, the earlier cases are far more restrictive than commonly assumed, providing ample opportunities for Member States to exclude most migrants from social assistance and deny them rights of residence. The more recent cases do no more than repeat these restrictive formulas, but in different factual contexts. What this shows us is that Member States and their judges are slowly learning the lessons of the Court and internalising its rules, so that they less often fight hopeless cases and are more in control of outcomes.

This national response is central to understanding what the law is and why any of it matters, for the impact of the social assistance case law is mediated to a great extent by the capacity of national institutions to apply it effectively. That has been made difficult by certain of its distinctive features: not just ambiguous norms, but the inter-relationship of residence and social assistance rights, which poses an institutional challenge in states where these are often applied by different arms of government. Either unjustified exclusion, or what Blauberger and Heindlmaier have referred to as ''accidental generosity'' may be the result.

This leads to law which poorly implements the prevailing political compromise: that migrants should be free to move and work, and enjoy equality, but only so long as they are not a burden on their host states. Yet reform is hindered by the vocabulary of concepts employed. Most notably, the idea of enjoying sufficient resources not to be a burden on social assistance is highly ambiguous in modern welfare states, where public subsidies are almost ubiquitous and assistance with healthcare, housing, education, and other core human needs is extended not just to the poor but to large parts of society. When this law was first framed, a worker could be conceived of as a self-sufficient contributor to public finances, just like a person of independent means, and these could be contrasted with the recipient of public support, who had fallen into the basic social safety net. However, those clear distinctions between the self-sufficient and others no longer work without far more explanatory and definitional work than EU law has yet done.

The paper considers the core cases and concepts of this field of law and their problems, and puts them in the context of the pre- and post-Brexit debates about intra-EU migration.

Number of Pages in PDF File: 31

Keywords: Union citizenship, social assistance, migration, EU law, migrant workers, workseekers

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2825041