Who is in v who is out? And what are their rights?
Free movement of people - alongside free movement of goods, services and capital - is one of the four founding principles of the European Union. It gives all citizens of EU countries the right to travel, live and work wherever they wish within the EU. In certain circumstances individuals have a right to residence, and in even more limited circumstances, they have access to the welfare system of the country they have moved to.
The point at which EU job seekers can access these benefits will vary in each member state and depend on each country’s own rules. In addition, each member state will have its own requirements for registering migrants when they enter the country.
This article considers the rules under the Citizens Rights Directive 2004 (the ‘Directive’) to summarise and compare free movement regulations on registration and unemployment benefits in stricter countries such as Belgium, Germany and Poland to the less strict such as the United Kingdom.
Under the Directive, all EU citizens have an unconditional right of residence in the territory of another EU for the first three months. For short stays of up to three months there are no formalities for the right to reside other than to hold a valid identity card or passport, however in some member states there still may be a requirement to register your presence. It should be noted that Belgium is the only country to require EU citizens to report their presence.
For periods of longer than three months, the host member state may require the citizen to register his or her presence within a reasonable and non-discriminatory length of time. Table 1 shows the different registration requirements which apply in our selection of member states. While generally for stays of more than 3 months registration is required, an exception exists for jobseekers who can stay for up to 6 months without registering.
The UK is one of a small number of member states not to require EU citizens to hold a registration certificate for the right to work or reside, which presents a significant problem of not being able to know for certain who has moved there from another member state and for how long. It has been argued that the relaxed attitude towards migration and registration requirements has led to a migrant crisis in the UK. This is what led many to vote Brexit and what the Leave campaign sold Brexit as a solution to.
During the initial period of three months, an EU citizen is not entitled to any social assistance. The Directive does not allow free movement of persons simply to benefit from the social security systems of other member states. The judgment in Dano v Jobcenter Leipzig (Case C-333/13) confirmed this position by stating that there is no right under EU law for economically non-active EU citizens to claim right of residence in another member state, when they do not have sufficient resources to maintain themselves.
When the period of residence is longer than 3 months, but less than 5 years as was the case in Dano, one of the conditions laid down by the Directive for a right of residence which applied, is that economically inactive persons must have sufficient resources of their own. The Court of Justice confirmed that an exclusion to certain German benefits is lawful in the case of member state nationals who go to another member state with no intention of finding employment there.
Subsequent case law from the CJEU in Jobcenter Berlin v Nazifa Alimanovic (Case C-67/14) held that denying the basic social assistance to EU citizens in Germany under Table 2, where right of residence arises solely out of the search for employment does not contravene the principle of equal treatment. It stated that an EU citizen can claim equal treatment with nationals of the host member state but only if residence in the territory of the host member state complies with the conditions of the Directive and as we have established, the Directive requires economically inactive persons to have sufficient resources of their own.
The position taken by the Court seems to allow member states to withhold equal access to social benefits without needing to terminate the inactive citizen’s residence rights. Therefore, EU citizens residing in a host state must have sufficient resources in order to be self-sufficient, either through employment, savings or pension entitlements from their state of origin.
Table 1: registration rules
Short stay < 3 months
No registration requirements
If staying for less than 3 months, registration of presence within 10 days of arrival at the Town Hall.
No registration requirements
No registration requirements
> 3 months
You do not currently need to apply for a document to prove you can live in the UK unless:
If staying for more than 3 months, migrants are required to register at their Town Hall within 3 months of entering the country.
For stays between 3 months and 3 years an individual must apply for a temporary residence permit. There are also permits for long term or permanent residency.
Registration at the Town Hall is required if you wish to stay for more than 3 months or wish to take up residence.
Table 2: Right to unemployment benefits
If you are an EEA or non-EEA national and you have not worked since arriving in the UK, to get income-based job seekers allowance you must prove that you have been living in the UK or Common Travel Area for 3 months before you claim
An individual can only claim out of work benefits if they have previously worked between 312 and 624 days within 21-42 months.
An unemployed person is eligible for benefits for every calendar day since the day of registration provided that during the preceding 18 months they have been for the total period of at least 365 days employed or engaging in work/service provision with salary equal to at least the national minimum wage.
There is a two-tiered system for claiming unemployment benefits in Germany
1) Unemployment benefit can be claimed providing you meet the qualifying period (paying contributions for at least 12 months of the 2 years before becoming unemployed) and certain other conditions; or
2) Unemployment benefit II (“Hartz IV”) which is basic jobseekers allowance for those not eligible to unemployment benefit and who satisfy certain criteria.