EU citizens’ access to benefits: the CJEU clarifies the position of former workers

Steve Peers

Today’s CJEU judgment in Alimanovic clarifies again the meaning of the EU law rules on the thorny issue of EU citizens’ access to benefits in another Member State. Like last year’s judgment in Dano (discussed here), it takes a more restrictive approach than suggested by the Court’s prior case law. However, like that prior judgment, today’s ruling leaves some issues open. I will discuss in turn the judgment itself, the impact on EU citizens' access to benefits, and the UK government's plans to renegotiate the country's EU membership. 

As a starting point, on the issue of EU citizens’ access to benefits, it is important to make distinctions as regards three issues: (a) the status of the person applying for the benefit ((i) not economically active; (ii) first-time job-seeker in the host State; (iii) previously employed in the host State; (iv) currently in work; (v) permanent resident); (b) the type of benefit at issue (social assistance, or concerning access to the labour market); and (c) whether the dispute concerns access to benefits or expulsion of the person concerned.

The judgment

The Alimanovic case concerns a Swedish woman and her daughter who had worked in Germany briefly, then lost their jobs. They sought a particular benefit in Germany, and the national court asked the CJEU if they were entitled to it.

First of all, the Court reiterated and expanded on what it had said in Dano: the benefit in question was a ‘social assistance’ benefit, not a benefit relating to labour market access. This distinction is important because the EU citizens’ Directive states that access to ‘social assistance’ benefits can be denied to first-time job-seekers, for as long as they are seeking work, and to all EU citizens during their first three months of residence. Furthermore, the Court’s previous case law (interpreting the Treaty rules on free movement of workers) states that first time job-seekers were entitled to benefits relating to labour market access, but not to social assistance benefits. The Court references that case law obliquely in the Alimanovic judgment, but does not either reaffirm or denounce it; it should be noted that a case about job-seekers’ access to this same benefit is pending (Garcia-Nieto: see the Advocate-General’s opinion in that case here).

Secondly, the Court then turned to the question of whether EU citizens who were previously briefly employed in the host State could be denied social assistance benefits. The previously employed are not one of the two categories of people specifically excluded from equal treatment to social assistance benefits by the citizens’ Directive; but that does not necessarily mean that they have access to those benefits.

To determine whether they had access to those benefits, the Court interpreted the equal treatment rule in the Directive, which states that equal treatment applies to all those EU citizens ‘residing on the basis of this Directive’ and their family members (leaving aside the exclusions which were already mentioned, as well as other exclusions in the Treaties or other EU legislation). So were the two benefit claimants residing on the basis of the Directive?

The Court ruled that they were not still covered by the Directive as former workers, since the Directive says that those who work in the host State for less than one year (as in their case) retain ‘worker’ status for at least six months after becoming unemployed. After that point, a Member State can (as Germany did) terminate their worker status, which means (unless they have another basis to stay, which was not relevant in this case) they are no longer covered by the equal treatment rule, and lose access to social assistance benefits. The national court also took the view that they could be classified as first-time job-seekers, although the Court pointed out that in that case, the Directive expressly permits Germany to refuse access to social assistance benefits.

Next, the Court distinguished prior case law which requires an individual assessment of whether an EU citizen could be expelled or is an ‘unreasonable burden’ on the social assistance system of the host State. In this case, no such assessment was needed, because the citizens’ Directive already took account of the individual position of workers. The specific period of retaining worker status set out in the Directive and national law ensured legal certainty, while ‘while complying with the principle of proportionality’. Finally, when considering whether there was an ‘unreasonable burden’ on national systems, the individual claim did not count: rather the total of all claims would be ‘bound to’ constitute such a burden.

Comments

As in Dano, the CJEU does not expressly overturn prior case law, but makes it easier for Member States to justify refusal of benefits than might otherwise have been the case under prior case law. (See by analogy the comparison of Dano with prior case law here). It’s unsurprising that the benefit at issue is ‘social assistance’, as the Court previously assumed in Dano, although this postpones any further clarification of the questions of access to labour-market related benefits for the various categories of EU citizens.

However, it’s rather more surprising that the Court simply applies the Directive’s definition of former workers. As recently as last year, in its judgment in Saint-Prix (discussed here), the Court insisted that the concept of ‘worker’ was set out in the Treaties, not secondary legislation, and so it fell mainly to be defined by the Court. In that ruling, the Court asserted that a woman who gave up work just before giving birth retained ‘worker’ status (and so access to benefits) under certain conditions. Yet in today’s judgment, the Court simply follows the Directive’s definition of former worker, without overruling or distinguishing (or even mentioning) the prior judgment. Certainly, as the Court said, following the precise wording of the Directive on this point promotes legal certainty; but it hardly promotes legal certainty to simply ignore apparently conflicting lines of case law.

For the record, the other circumstances in which the Directive requires ‘worker’ status to be retained are where: the worker is ‘temporarily unable to work’ due to illness or accident (the words ‘temporarily unable’ are not further defined); the worker is unemployed after more than one year’s work, if he or she is ‘registered as a job-seeker with the relevant employment office’; or the worker has begun vocational training, although this must be linked to the worker’s prior employment unless the worker is involuntarily unemployed.

Equally, it’s surprising that the Court ruled out a requirement for an individual assessment of the former worker’s position, which the Advocate-General had advocated (see discussion here). The Court draws a distinction between the individual assessment which the Directive implicitly requires as regards expulsion (more on expulsion of the unemployed after the Dano judgment here) and the issue of access to benefits. And the protection of the right of residence which the EU legislature expressly set out for beneficiaries of social assistance in the Directive has effectively been removed by the Court’s interpretation in today’s judgment, which seems to set out an irrebuttable presumption that any individual application for social assistance constitutes an ‘unreasonable burden’ on national systems, due to the applications made by other people in the same situation.

EU citizens’ access to benefits and expulsion: where do we stand?

It’s useful to summarise where we stand after this judgment as regards various categories of EU citizens’ access to benefits and expulsion.

(i) not seeking work: not entitled to social assistance, or labour market benefits; no automatic expulsion;

(ii) first-time job-seeker in the host State: not entitled to social assistance, entitled to labour market benefits; no expulsion as long as they can show evidence of job-seeking and genuine chance of employment;

(iii) previously employed in the host State: retain worker status on conditions set out in the Directive, or during break from employment due to maternity on conditions set out in Saint-Prix; therefore still entitled to social assistance or labour market benefits; no expulsion; if they do not meet the conditions to retain worker status, Alimanovic assumes that the rules on first-time job-seekers apply by analogy;

(iv) currently in work: entitled to social assistance or labour market benefits; no expulsion.

(v) permanent residents (those resident for more than five years legally): full equal treatment regarding benefits and their status is no longer dependent on not applying for social assistance; no expulsion.

   

Of course, any EU citizen can be expelled on grounds of public policy, public security or public health, subject to the detailed rules in the Directive; the references to expulsion above refer to expulsion on other grounds. Permanent residents have enhanced protection against expulsion on grounds of public policy, public security or public health.

Implications for the UK’s renegotiation of EU membership

Finally, this brings us to the elephant in the room: does today’s judgment have any implications for David Cameron’s renegotiation of the UK’s EU membership? Last year, Cameron outlined nine objectives specifically related to the free movement of EU citizens (he also has objectives on other issues, as discussed here).

I examined those nine objectives in detail at the time (see here). Let’s look at those nine objectives again, in light of today’s judgment. I have underlined the impact which the judgment might have on certain issues (I haven’t copied all of the prior analysis, but only those parts which might be affected by the judgment). As we can see, in general the judgment makes it easier to achieve the negotiation objectives of curtailing the benefits of former workers who are now unemployed, but it reaffirms the difficulty of changing rules relating to expulsion of job-seekers.

1. No access to tax credits, housing benefits and social housing for four years for EU citizens

For EU citizens who are not workers, work-seekers or former workers, this confirms the status quo, as set out in Dano.

For EU citizens who are work-seekers, the free movement of workers in the Treaties (as interpreted by the CJEU) requires Member States to give them access to benefits linked to labour-market participation. These benefits would probably not be covered by that rule. So this confirms the status quo.

For EU citizens who are workers (as defined by the Treaties and CJEU interpretation) or former workers (as defined by EU legislation, and the CJEU interpretation of the Treaties), there is a right to equal treatment.  As regards workers, changing this rule would require a Treaty amendment. However, as regards former workers, the Alimanovic judgment implicitly suggests that it is generally up the EU legislature to determine when they retain the status of ‘worker’. So potentially access to benefits could be curtailed for former workers by means of amending secondary law – although the CJEU did refer to the principle of proportionality in this context.

2. Removal if job-seekers do not find a job within six months

For EU job-seekers, the EU legislation states that they cannot be expelled as long as they ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. This reflects the case law of the CJEU, interpreting the Treaties (Antonissen judgment). Therefore this change would require a Treaty amendment. The Alimanovic judgment reaffirms this rule in the legislation.

3. Ending the entry of non-EU family members without restrictions

Not relevant to the Alimanovic judgment.

4. Tougher and longer re-entry bans for foreign rough sleepers, beggars and fraudsters

Not relevant to the Alimanovic judgment. But note that re-entry bans are not possible at the moment for rough sleepers and beggars: Article 15(3) of the EU citizens’ Directive states unambiguously that a ban on entry cannot be imposed where a person was expelled for grounds other than public policy, public security and public health; and Article 27(1) states clearly that such grounds ‘cannot be invoked to service economic ends’. This rule could possibly be overturned by EU legislative amendment, but it is possible that the CJEU would find that this would constitute a disproportionate restriction on free movement for those who were entering to obtain work later. So a Treaty amendment might be needed.

5. Stronger measures to deport EU criminals

Not relevant to the Alimanovic judgment.

6. Longer waiting periods for free movement of persons from new Member States

Not relevant to the Alimanovic judgment.

7. EU citizens to have a job offer before entry

Not relevant to the Alimanovic judgment. But the CJEU reiterated the current rule in EU legislation that EU citizens can stay if they are a job-seeker, subject to the proviso that they have a genuine chance of getting work. So this proposal would require a legislative amendment and a Treaty amendment, since the CJEU has said (in Antonissen) that the Treaty right to free movement of workers also applies to job-seekers, giving them the right to enter and stay in a Member State to look for work.

8. No taxpayer support for job-seekers

The EU legislation already rules out social assistance for job-seekers, so this reflects the status quo. However, the CJEU has said that job-seekers have a right to access benefits linked to labour market participation, if they have a link already with the labour market in question. While David Cameron suggested that the UK’s future Universal Credit would not fall within the scope of the CJEU’s case law, that would likely be challenged in practice. So a Treaty amendment is likely necessary as regards current rules, and possibly necessary as regards universal credit. As regards job-seekers who are former workers, the Alimanovic judgment makes it easier to deny them social assistance, and to tighten the rules to this end by means of amending secondary EU law, as discussed above.

9. Payment of child benefit to children abroad

Not relevant to the Alimanovic judgment. But note that there is a case pending before the CJEU on the separate question of the UK’s restrictions on payment of child benefit to children of some EU citizens living in the UK (the ‘habitual residence’ test).

Barnard & Peers: chapter 13

Benefits for unemployed EU citizens: the CJEU may complicate David Cameron’s renegotiation strategy

 

Steve Peers

The issue of the free movement (or ‘immigration’) of EU citizens between Member States has become highly controversial politically, especially in the UK. In particular, their access to benefits remains highly contentious. The CJEU has the chance to clarify some key issues on this point, in the pending case of Alimanovic, in which an Advocate-General issued an opinion today.

Today’s opinion is not binding, so we must wait to see if the CJEU is willing to follow it. But if it does, the Court will complicate the Conservative party’s strategy to renegotiate the UK’s EU membership. Even if the result of the upcoming UK general election means that the Conservative party’s plans are moot, the judgment will still be relevant to the Labour party’s less far-reaching plans to restrict EU citizens’ access to benefits.

Background

The CJEU ruled in November 2014 in the well-known Dano judgment (discussed here) that unemployed EU citizens who moved to another Member State could not access social benefits there, if they were not looking for work. This ruling did not apply to other categories of unemployed EU citizens: those who moved to another Member State and were looking for work there, and those who had worked there already and become unemployed. Today’s opinion concerns both of these categories.

According to the EU citizens’ Directive, unemployed EU citizens looking for work in another Member State cannot obtain social assistance benefits from another Member State if they have not worked in that State. However, the case law of the CJEU states that those citizens can rely on the free movement of workers rules in the EU Treaty in order to claim benefits related to the labour market.

As for those EU citizens who have worked in that Member State and become unemployed, the Directive says that they retain worker status (and therefore access to benefits, including social assistance) if they have worked there more than one year. They also retain worker status if they have worked there for less than that period, although in that case they only keep that status for six months. However, again relying on the Treaty free movement rules, the CJEU has ruled that worker status can be retained in other cases too, for instance by women who have stopped work briefly due to maternity (see discussion here).

The Conservative party position is that EU citizens working in a Member State should have to wait four years to get access to tax credits, social housing and housing benefits, as well as no taxpayer support for job-seekers. As I discussed before, these are the first and eighth of Cameron’s nine objectives in the planned renegotiation of EU membership (in so far as it concerns ‘migration’ from the rest of the EU). The Labour party position is that EU citizens should have to wait two years for benefits.

The case concerns Swedish citizens (a mother and her children) who had lived in Germany before, left for a number of years, and then returned there. The mother and oldest child then worked in Germany briefly, but became unemployed. Do they have access to benefits?

The Opinion

The Advocate-General first clarifies that the benefits are social assistance, not labour-market related. So job-seekers in general do not have access to them; only former workers do. But as part of this analysis, he reaffirms the current rule that the Treaty gives job-seekers access to labour-market related benefits.

Then he examines whether people who become unemployed after short periods of work in a host Member State can be considered former workers – and therefore retain access to social assistance benefits – in cases besides those listed in the Directive. He argues that they can, in part on the basis of the EU Treaties, and that any Member State which refuses to extend such benefits to them automatically breaches EU law. Instead, a Member State must consider the benefit request on a case-by-case basis, assessing whether there is a sufficient link with the labour market of that State.

Comments

If it is followed by the CJEU, the Opinion makes both the Conservative and Labour plans to renegotiate UK membership as regards EU citizens’ access to benefits harder to achieve. The crucial point is the extent to which renegotiation concerns a Treaty amendment, which is far harder to achieve (unanimous agreement of all Member States, and national ratification) than an amendment to EU legislation, like the citizens’ Directive (qualified majority of Member States, proposal from Commission and agreement of European Parliament).

First of all, the Opinion reaffirms that the Treaty requires that all job-seekers get access to labour-market related benefits. So only a Treaty amendment could overturn that rule.

Secondly, the Opinion asserts that the Treaty requires that former workers might have access to benefits, on a case-by-case basis, if they have stopped work in circumstances other than those listed in the Directive. This goes further than the status quo, since the CJEU has only established this point as regards women interrupting work for maternity. The workers concerned have only been employed in Germany for short periods, well below the four-year waiting period that the Conservatives want, or even the two-year period that Labour supports.

It remains to be seen whether the Court will accept today’s opinion, or instead opt for a judgment that more obviously reflects the political sensitivities surrounding unemployed EU citizens’ access to benefits – as it plainly did in the Dano judgment.

 

Barnard & Peers: chapter 13

The beginning of the end for the Euro? EU Law constraints on leaving EMU or defaulting on debts

 

Steve Peers

After a couple of years without any (apparent) crisis, the future of Economic and Monetary Union (EMU) is threatened again, following the decision to call snap Greek elections in January. What would be the consequences if the anti-austerity party Syriza becomes the government?

First of all, such an outcome is not yet certain. As Open Europe’s analysis points out, Syriza has only a modest lead in the polls, and even if it becomes the largest party, it may well fall short of having a majority of seats, in which case it would have to form a coalition with another party.

Secondly, it’s necessary to realise that Syriza has, in principle, relatively modest ambitions. Its policy is not to leave the EU or even the single currency, but rather to renegotiate Greece’s debts and the related austerity obligations. Even in previous elections, it sought to default on the debt, rather than leave the EU or EMU.

Having said that, it is possible that Syriza might decide to threaten more decisive action if renegotiation does not go well. Or that party’s more radical elements might take charge.  Or, in the view of some (see this Washington Post commentary), Greece might be forced out of the euro by other Member States, particularly Germany.

While the main issues arising from this situation are political and economic, there are also legal constraints that cannot be overlooked. Some key measures taken to save the euro in recent years were litigated before national courts (particularly in Germany and Ireland), as well as in the CJEU, notably the Pringle case (concerning the treaty establishing the European Stabilisation Mechanism) and the pending Gauweiler case (discussed here), concerning the European Central Bank policy of buying government bonds. The Advocate-General’s opinion in the latter case is due in mid-January – in the midst of the Greek election campaign.

Let’s start with the most radical outcome. Every Member State has an option to leave the EU, set out in Article 50 TEU. It would be unwise to invoke that provision unless a Member State genuinely wants to leave (see my earlier blog post on that provision). Conversely, however, it’s entirely impossible to force a Member State out of the EU against its will. The most that the other Member States can do is to suspend its membership in the event of a ‘serious and persistent breach’ of EU values, in particular human rights and democracy (Article 7 TEU).

What about departure from EMU? The Treaties contain detailed rules on signing up to the euro, which apply to every Member State except Denmark and the UK. Those countries have special protocols giving them an opt-out from the obligation to join EMU that applies to all other Member States. But there are no explicit rules whatsoever on a Member State leaving the euro, either of its own volition or unwillingly, at the behest of other Member States.  There’s an obvious reason for this: the drafters of the Maastricht Treaty wanted to ensure that monetary union went ahead, and express rules on leaving EMU would have destabilised it from the outset. Put simply, legally speaking, Greece can’t jump or be pushed from the single currency.

But other currency unions have fallen apart in history, despite any legal prohibitions that may have existed against it. So it’s important to consider also the practical constraints: it’s not realistic to imagine forcing Greece to leave or to stay in EMU against its will, short of invading and occupying the country. How would Greece be forced out exactly? By printing drachmas in Frankfurt, dropping them from the air over Greece and hoping that Greeks use them?

In the event that Greece did choose to leave EMU in practice, EU law would have to be amended (probably with retroactive effect) to regulate the position. Although there are no express provisions on this issue, arguably Article 352 TFEU (the default power to regulate issues not expressly mentioned in the Treaties) could be used. This would require a unanimous vote of all Member States: it wouldn’t be possible to use the EU’s ‘enhanced cooperation’ rules (allowing a group of Member States to go ahead without the others), since those rules can’t be used where an issue falls within the scope of the EU’s exclusive competence, and the single currency falls within the scope of the exclusive competence over monetary policy. If Article 352 was not legally possible (someone might bring a successful legal challenge if it was used, or one or more Member States might have purely legal objections), it would be necessary to amend the Treaties.

The least radical outcome is that Greece’s debt and austerity obligations are simply renegotiated. But there are legal constraints here too. Most significantly, Article 136(3) TFEU states that any financial assistance must be subject to ‘strict conditionality’, consistent with the CJEU ruling in Pringle. The CJEU also made clear in that judgment that the ‘no-bailout’ rule in the EU Treaties (Article 125 TFEU) allowed Member States to offer each other financial assistance on the condition that it took the form of loans, rather than a direct assumption of Greek government debt by other Member States. Moreover, the CJEU pointed out, the ESM Treaty required that in the event of non-payment, the loans would remain payable, and had to be charged an appropriate level of interest.

So it’s not possible for Member States to drop all conditionality as regards loans to Greece, to forgive debt as such or to loan money interest-free. But it is open in principle to reduce the stringency of the conditions somewhat, to reduce the interest rates payable and to lengthen the repayment period – although there is always the risk that some litigant will try to convince a national court or the CJEU that this is going too far. Moreover, the rules in the EU Treaties only bind EU institutions and Member States, not private parties, third States or international organisations (although it might be argued that Member States are constrained as members of the IMF not to violate the no-bailout rule indirectly). So any renegotiation or default as regards such creditors is not subject to EU law rules in principle, although of course other legal rules might be applicable.  

Whether such fairly modest renegotiation would do enough to reduce Greece’s mountain of debt significantly, or to satisfy the voters which supported a Syriza-led government, remains to be seen. The greater impact may be longer-term, in the event that a Podemos-led government comes to power in Spain, or that new or current governments in other Member States which have been bailed out demand a similar renegotiation.

Finally, it should be recalled that renegotiation of loans might not be the only possibility to help out Greece. For example, arguably the Treaties do not rule out a form of (supplementary) unemployment insurance system as between Eurozone Member States, since it would not take the form of paying off another State’s debts as such. Admittedly, such a system would provide indirect financial support to another State, since it would reduce costs which that Member State might otherwise have. But the same might be said of loaning money to that Member State, at interest rates far lower than it would be offered on the free market, via means of the ESM Treaty – and the CJEU has already found that this didn’t violate the no-bailout rule. Moreover, the previous Commission has already done a lot of preparatory work on this issue (see the fuller discussion here). Such a scheme could probably be launched either inside the EU legal framework, or outside it.  

It’s up to Greek citizens to decide if they want to vote for Syriza or not, and the EU institutions and other Member States should leave them alone to make their choice. But if Greeks do decide to vote for that party, it would be tiresome and counter-productive to react with bluster and threats. Why not take this opportunity to re-engage with the millions of EU citizens who are affected or angered by austerity, and re-orient the EU towards ending that austerity, instead of generating more of it? That’s more easily said than done, of course. But an unemployment insurance system would not only have an economic rationale (as an automatic stabiliser) but also a political one, demonstrating that the EU can assist those who have suffered from the economic downturn directly.

 

Barnard & Peers: chapter 19
Photo credit: Xendpay.com

Can unemployed EU citizens be expelled and banned from re-entry?

Steve Peers

As detailed in today’s Open Europe blog post, the idea of expelling unemployed EU citizens has recently been mooted in Germany, and is therefore interesting the critics of EU free movement in the UK. It is therefore a good time to examine in detail in exactly what circumstances EU citizens can be expelled.

The main source of law on this issue is the EU citizens’ Directive, although the primary Treaty rules on the free movement of EU citizens play some role. While the Directive allows Member States to expel citizens on grounds of public policy, public security or public health, this possibility is irrelevant as regards the expulsion of unemployed EU citizens, since the Directive specifies that these grounds cannot be ‘invoked to serve economic ends’ (Article 27(1)). So the rules on expelling EU citizens on grounds of unemployment must be found elsewhere in the Directive.

Expulsion of EU citizens

First of all, it isn’t possible to expel EU citizens or their family members on the grounds of unemployment if they become ‘permanent residents’ in another Member State. This status is gained after five years’ legal residence in the host State (Article 16), or earlier if their work is interrupted due to retirement or permanent incapacity to work (Article 17).

Before that status is obtained, there are two phases in an EU citizen’s residence in another Member State. For the first three months of residence, an EU citizen can stay in another Member State without any conditions or formalities besides showing a residence card or passport (Article 6). However, there is no right to social assistance during that period (Article 24(2)), and EU citizens will lose the right to reside during this period if they ‘become an unreasonable burden on the social assistance system’ of the host State (Article 14(1)).

After the first three months, but before obtaining permanent residence status, an EU citizen’s right to reside in another Member State is conditional. The EU citizen must either: be a worker or self-employed person; have sufficient resources ‘not to become a burden on the social assistance system’; be a post-secondary student who makes a declaration concerning such sufficient resources; or be a family member of an EU citizen satisfying one of the first three conditions (Article 7). EU citizens retain the right of residence as long as they continue to meet these conditions (Article 14(2)). Conversely, they can lose the right to reside if they do not (or no longer) meet these conditions, but the Directive specifies that expulsion ‘shall not be the automatic consequence’ of an EU’s citizen’s recourse to the social assistance system of the host Member State’ (Article 14(3)).

Furthermore, it is not possible to expel a worker or a self-employed person, or a person seeking work, as long as such a person can ‘provide evidence’ that he or she ‘is continuing to seek employment’ and has ‘a genuine chance of being engaged’ (Article 14(4)). Any EU citizens subject to expulsion have the same procedural rights as those being expelled on grounds of public policy, public security or public health (Article 15(1)).

 Three other relevant rules in the Directive are important. First, EU citizens retain the status of worker of self-employed person (and so protection against expulsion on grounds of unemployment) if they are: (a) temporarily unable to work due to sickness or accident; (b) involuntarily unemployed, if they are registered with an unemployment office, although if they have been employed for less than one year, this status might terminate after six months; or (c) if they have started vocational training (a concept broadly defined by EU law), although this must relate to their previous employment unless they are involuntarily unemployed (Article 7(3)).

 Second, Member States cannot set a fixed amount to be considered ‘sufficient resources’, but must consider ‘the personal situation’ of each individual EU citizen (Article 8(4)). Third, if EU citizens die, leave or get divorced, their children retain rights to stay, as long as they are enrolled in education, along with the parent caring for them, even that parent is unemployed and reliant upon the social insurance system (see Article 12(3) of the citizens’ Directive and Article 10 of the Regulation on free movement of workers, as interpreted by the CJEU).

 So, to sum up these rules, which EU citizens can – and cannot – be expelled due to unemployment?

EU citizens cannot be expelled due to unemployment if they: (a) are permanent residents; (b) are workers or self-employed persons; (c) have ‘sufficient resources’; (d) have worked for more than one year and registered as a job-seeker; (e) have worked for less than one year and registered as a job-seeker, for at least a six-month grace period; (f) entered as a work-seeker, and can prove that they are still seeking employment and have a genuine chance of getting a job; (g) are family members of an EU citizen who has the right of residence or permanent residence; or (h) are the parent carers of an EU citizen’s child as described above.

Conversely, EU citizens can be expelled due to unemployment if they are not permanent residents, lack ‘sufficient resources’, and have become an unreasonable burden on the social assistance system, provided that they: (a) are not workers or self-employed persons, or the family members of an EU citizen or the parent carers of an EU citizen’s child as described above; (b) have worked for less than one year, if their grace period of least six months has run out; or (c) entered as a work-seeker, and cannot prove that they are still seeking employment and have a genuine chance of getting a job. Even if these criteria are satisfied, the legislation and case law make clear that each individual case must be considered before expulsion.

So there are small categories of EU citizens who can be expelled due to unemployment, but this is subject to an individual examination and procedural rights. Member States with a more liberal treatment of unemployed EU citizens than the Directive requires can tighten those rules, as long as they do not go so far as to breach the Directive. Clearly a blanket rule providing for the automatic expulsion of anyone unemployed for a particular period would therefore not be compatible with EU law.

Entry bans for unemployed EU citizens 

While the rules on the expulsion of unemployed EU citizens are complex, the rules on entry bans of the unemployed are very simple indeed. Article 15(3) of the citizens’ Directive states clearly that ‘The host Member State may not impose a ban on entry in the context of an expulsion decision’ that was taken on the basis of ‘grounds other than public policy, public security or public health’, ie on grounds of unemployment and poverty.

In light of this provision, it is remarkable that both the German and British governments are considering an entry ban of some sort. Are those plans compatible with EU law? The German intention is to impose an entry ban only on persons who have committed some sort of fraud. This raises the question of the correct interpretation of the ‘abuse of rights’ clause in the Directive (Article 35), which has yet to be clarified by the CJEU.

David Cameron’s proposal is that anyone who is expelled for not working would be subject to an entry ban for 12 months, unless they could prove that they have a good reason to return, such as work. On the face of it, this reason for an entry ban does not fall within the scope of the ‘abuse of rights’ clause, but rather within the scope of the rules which deal with the expulsion of those who are not working and who create an unreasonable burden for the social assistance system – where the Directive clearly rules out any entry ban.

Conclusions

While the Directive does allow EU citizens to be expelled due to unemployment and poverty, this is subject to tight substantive constraints, procedural rights for the persons concerned, and a case-by-case analysis. Moreover, a subsequent entry ban is ruled out. Both the German and British plans fall foul of these rules to an extent, the German plan because, at first sight, it sounds as if expulsion would be automatic, and the British plan because it would provide for an entry ban. Whether these rules should (or could) be changed is an entirely different question.

Barnard & Peers: chapter 13, chapter 16