Immigrants Right to Social Assistance in Finland and Sweden 1

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1 Immigrants Right to Social Assistance in Finland and Sweden 1 Paul Van Aerschot 2 In several countries immigrants right to social benefits has been called into question. Especially the right to social assistance is under strain as a result of the refugee crisis in Europe and the ensuing incorporation of a considerable number of new immigrants. Also economically inactive EU migrants without a permanent residence permit have come under scrutiny and limitations of their entitlement to social assistance in certain member states have recently been endorsed by the Court of Justice of the EU. These limitations are an exception to one of the basic principles of the EU demanding that mobile EU citizens and nationals of a member state should be treated equally. In Finland and Sweden no such limitations have been imposed but all people in need living in the country or even merely visiting are entitled to social assistance if they have no means of subsistence. However, foreign recipients of social assistance may be expelled because they are not self- supporting. This also applies to EU migrants though they are protected against expulsion in certain cases, in particular when they have a connection with the labour market. The purpose of the paper is to explore the tension between social policy and migration policy affecting the take- up of social assistance by immigrants. Social policy is based on solidarity with people in need and individuals unable to provide for themselves. The threat of expulsion infringes this principle and undermines the effectiveness of social policy as a device for reducing poverty. Moreover, in the EU it dilutes EU citizenship by reserving the right of free movement for self- supporting persons. It also allows member states to profit economically from the input of migrant EU workers and pensioners while evading the costs of providing for poor EU migrants. Background information The volume and composition of the immigrant population is very different in Finland and Sweden. In contrast, the legislation on social assistance is similar in the two countries, partly because of a common conception of social welfare, to which social assistance is considered to belong. Also the legal provisions on migration are close to each other as they are based on the same international conventions and EU law. 1 I am indebted to ADD 2 Paul Van Aerschot is Adjunct Professor ( docent ) at the University of Helsinki. 1

2 According to Statistics Finland 3 Finland s population numbered almost 5.5 million people in Nearly 261,000 (about 4.7 %) # IN 2014>UPDATE # permanent inhabitants of the country were born abroad and had a foreign language as their mother tongue. A little less than 300,000 people (about 5.5 %) # IN 2014>UPDATE # had a foreign background, that is their parents were born abroad. Within these minorities the largest groups were Russians and Estonians. The figures above do not include asylum seekers. In 2015 about 32,500 asylum seekers came to Finland, in only between 3,000 and less than 4,000 each year. 4 In Sweden the total population numbered more than 9.85 million people in The persons born abroad living permanently in the country represented approximately 17 per cent of the population (about 1.68 million people). Those with foreign background totalled >UPDATE # or per cent. 5 The most important countries of origin or background were Finland, Iraq, Poland, Syria and Iran. In 2015 more than 160,000 people applied for asylum in Sweden, in 2014 half that number. In the number of asylum seekers varied roughly between 30,000 and 54, I will now examine the two systems of social assistance both in general and from the immigrants perspective. The Finnish and Swedish legal provisions show many common features and can be dealt with together. Social assistance in Finland and Sweden In both countries social assistance has been legally termed without using the word social. In Finland it is called subsistence support and in Sweden economic assistance. The design of social assistance is similar in the two countries, and therefore I will in the following mostly deal with them together. The most striking difference are the consequences of the benefit penalties which can be imposed on the beneficiary who does not abide by the rules based on the legislation involved. One should also take into account that the local social services have a large measure of Statistics of the Finnish Immigration Service, 5 Statistics Sweden ( 6 Statistics of the Swedish Migration Agency ( 2

3 discretion in both countries, which may generate further differences. However, the impact of discretion cannot be assessed adequately because research data to that effect are lacking. Entitlement In both countries social assistance is paid by the municipality to people who cannot themselves provide for their needs and cannot, either, have these provided for by other means, for example by working or resorting to social security benefits or income from other sources. The decision of the local social services should always be based on an individual assessment of the applicant s situation. Unemployed claimants able to work have to register as jobseekers with the employment agency. 7 Social benefits replacing income from work are, for example, unemployment benefit or the allowance paid to immigrants involved in the drafting of their integration plan or in its realization. Both benefits can be complemented with social assistance if needed to reach an acceptable level of subsistence provision. Immigrants in the course of planning their integration scheme or participating in integration measures do not have to register separately as jobseekers if they receive social assistance at the same time. 8 Asylum seekers are also entitled to an allowance in both countries. In Finland this benefit replaces social assistance (CHECK HE ym.) but in Sweden the municipality may be obliged to grant social assistance to asylum seekers in need because of the municipal ultimate responsibility for supporting all individuals residing in its area. 9 7 Sections 2-2a of the Finnish Subsistence Support Act and chapter 4, section 1 of the Swedish Social Services Act. Tuori and Kotkas ADD..; Bergstrand 2016, Section 15 of the Swedish Act on Settlement Provisions for Certain Newly Arrived Immigrants (2010:197) and chapter 2, sections 1-3 of the Decree on Allowances to Certain Newly Arrived Immigrants (2010:407). The amount of the settlement allowance is about 130 euros a week when the plan is being drafted and 175 euros when it is being implemented full- time. See also Ekonomiskt bistånd, Handbok 2013, 30. In Finland there is no separate settlement allowance but the beneficiaries are paid unemployment benefits or social assistance (section 19 of the Integration Promotion Act 2010/1386). 9 On the ultimate responsibility see below and on its applicability to asylum seekers in particular Ekonomiskt bistånd, Handbok 2013, 29. The benefits are regulated in sections of the Finnish Act on the reception of people applying for international protection (2011/746) and in section 1, subsection 2 and sections of the Swedish Act (1994/137) relating to the reception of asylum seekers. 3

4 The overall responsibility for granting social assistance lies with the municipality where the applicant resides, usually the municipality where he or she is living permanently. This means that claimants in need who cannot resort to other agencies should always be helped by the municipality where they happen to be but they can be directed to their home municipality to be supported there. The responsibility of other municipalities than the home municipality for applicants living elsewhere is limited to acute interventions. Also visiting foreigners living abroad are only entitled to measures intended to cope with critical situations. Such measures can be paying for temporary lodgings or for travel expenses to go home. If the situation cannot be solved rapidly social assistance should be granted according to the general provisions. 10 Immigrants (even undocumented ones) are entitled to social assistance in the same way as other residents. However, depending on the category of residence rights they qualify for, claiming social assistance may lead to expulsion. I will deal with residence rights below. When Swedish local authorities reject an application for economic assistance or discontinue its payment because of non- compliance they are still responsible for supporting the individuals or families concerned because of their ultimate responsibility for all those present in the municipality. This general legal obligation applies also to other situations, especially to cases where there is an acute need for help. The rationale of this obligation is that economic assistance constitutes a safety net on which all people should be able to rely when they cannot help themselves and there are no other people or actors responsible for helping them. The content of the assistance depends on the assessment of the individual s situation by the local social services. They may, for example, temporarily pay for meals, lodgings and return tickets for claimants living in another municipality which is liable for supporting them. They may also provide basic means of subsistence for undocumented immigrants and finance their return to their home country if no other actors take charge of them. 11 Also in Finland it is possible to limit subsistence support to small scale assistance or specific items of support when there is an urgent need for help. In both countries the extent of the measures taken depends on the discretion of the local decision- makers. When the situation of the recipients 10 Chapter 2a, section 2 of the Social Services Act and Government Bill 2010/11:49, Chapter 2, section 1 of the Swedish Social Services Act. ). Arbetslöshet och ekonomiskt bistånd 2015, 101; Bergstrand 2016, 25-26; Fahlberg 2012, 74; Grönwall and Holgersson 2004, and 151; Rätten till socialt bistånd för medborgare inom EU/EES- området 2014, 8. 4

5 is no longer critical but they still need help they should be given social assistance according to an assessment of their individual case based on the general criteria involved. Correspondingly, the amount of the benefit granted should be on a level matching with the standard of living judged appropriate in ordinary cases (in Sweden the reasonable standard of living ). 12 The use of two different sets of rules has given rise, at least in some Finnish municipalities, to a biased application of the system based on an unlawful interpretation of the law. In these cases the lack or termination of immigrants residence rights has been translated into a critical situation allowing the social services to grant only emergency assistance instead of full subsistence support even when the process of expulsion has not been initiated. Surprisingly, similar unlawful interpretations have been adopted in a guide published by the Ministry of Social Affairs and Health. However, these guidelines have been rejected by the Assistant Parliamentary Ombudsman, who has enjoined the Ministry to adapt them to the right interpretation of the law. 13 The complaint dealt with by the Ombudsman was connected with the case of a third country national receiving subsistence support. His residence permit had not been renewed but he had appealed against the decision. The social services of the municipality concerned had decided to reduce the amount of the assistance given to him because his residence right could be terminated. The decision- makers had justified this by referring to the ministerial guidelines. The Ombudsman has no authority to change decisions made by administrative bodies, for example on subsistence support to be paid to an individual claimant. One of the statutory duties of this institution, however, is to ensure the lawfulness of the activities of the authorities. 14 Therefore in the case in question the Assistant Parliamentary Ombudsman drew attention to the following erroneous interpretations of the law, which should be rectified in the guidelines. 12 Bill 2010/11:49 submitted by the Swedish government, 45 and bill 119/2007 submitted by the Finnish government, Decision of the Assistant Parliamentary Ombudsman given on 18 December 2015, Dnro 4096/4/14. Toimeentulotuki. Opas 2013, 58 and Art. 109 of the Finnish Constitution. 5

6 According to the guide, which had been partly elaborated in cooperation with the Ministry of the Interior responsible for immigration matters, third country nationals who have no permanent residence permit should in general be self- supporting. When they need subsistence support they would only be entitled to emergency assistance. The guide states that the same applies to EU citizens and foreigners with similar residence rights who have not yet obtained the status of permanent residents, and also to tourists and undocumented immigrants, with the exception of asylum seekers, The Assistant Parliamentary Ombudsman objects that a claimant s entitlement to subsistence support does not depend on the nature of his or her residence permit nor on any other criteria included in the Aliens Act. Hence the lack or temporary character of the applicant s residence rights cannot by themselves justify the limitation of the support to emergency assistance. She also criticizes the fact that the guide does not mention the privileged residence rights of EU citizens who have worked in Finland. Moreover, she notes that taking up subsistence support may affect the applicant s right to reside in the country but that the assessment of this matter is the responsibility of the immigration authorities. Finally, she observes that recent case law of the Court of Justice of the EU does not warrant limitations of the right to subsistence support either. 15 I will deal with this case law and more in general with the interconnection between social assistance and residence rights later on. Content and amount In both countries the benefit consists of three parts, of which the basic part is a fixed sum prescribed nationally and the other two depend to some extent on the discretion of the local social services. The basic part is meant to cover expenses for food, clothes, health and hygiene, telephone, TV, hobbies and leisure as well as other daily expenses. The second part is intended for other basic items considered reasonable by the decision- makers in each individual case. These expenses are the costs of housing, domestic electricity supply and home insurance. In Finland also significant costs of medical treatment belong to this category, in Sweden journeys to and from work as well as the membership fee of a trade union and an unemployment insurance fund. In Finland the third component of social assistance (called complementary subsistence support) is granted for reasonable expenses for children s day care, certain special housing costs or other 15 See pp of the decision. 6

7 particular expenses resulting, for example, from prolonged dependency on social assistance, long or severe illness or the children s hobbies. The Swedish legislation does not specify which costs the third group is composed of but provides that the beneficiary is entitled to assistance for his or her other costs of living. In practice this means expenses necessary to reach a reasonable standard of living, for example the costs of medical treatment, dental care, domestic help or the purchase of furniture, household equipment and winter clothes. In Finland the municipality may also grant proactive social assistance on a discretionary basis according to criteria laid down by its own decision makers. 16 In Finland the amount of the basic part is determined by the Subsistence Support Act. The sum indicated in the Act is subject to an index. In 2016 it is euros a month for an adult living alone and a little less for a spouse or partner. An extra sum is paid for each child belonging to the same household. The discretion concerning the two other parts exercised by the local social services should be guided by the standards set in the Act and the Constitution. The Constitution declares that Those who cannot obtain the means necessary for a life of dignity have the right to receive indispensable subsistence and care. This level of subsistence is the minimum necessary to support life. However, according to the authoritative interpretation of social assistance legislation the subsistence support system should ensure a socially acceptable standard of living on a higher level, enabling the recipient to participate in societal activities. 17 The basic part of the Swedish economic assistance is yearly laid down by decree. In 2016 it is 3890 Swedish crowns (about 440 euros) a month for an adult living alone and 7780 (about 880 euros) for a couple. An additional sum is paid for each child belonging to the same household. The items belonging to the two other parts are decided upon by discretionary decisions in individual cases. The discretion exercised by the social services should fulfil the requirement of the Social Services Act that the assistance given to the individual should warrant a reasonable standard of living. 16 Sections 6-8 and 13 of the Finnish Subsistence Support Act (1997/1412); Tuori and Kotkas 2008, Chapter 4, sections 1 and 3 of the Swedish Social Services Act (2001:453); Bergstrand 2016, and 65-71; Ekonomiskt bistånd, Handbok 2013, and 54-83; Lundgren, Sunesson and Thunved 2016, Sections 9-9a of the Subsistence Support Act and Government Bill 217/1997 (relating to the Act), 17; article 19, section 1 of the Finnish Constitution (1999/731); notice 219/2015 of the Ministry of Social Affairs and Health; opinion 31/1997 of the (standing) parliamentary Committee for Constitutional Law and report 25/1994 of the same committee. 7

8 This concept is not further specified in the legislation or in the legislative drafts. It should be judged in the light of the goals formulated in the Social Services Act, which are to promote people s economic and social security and equality in their living conditions as well as their active participation in social life. So one could say that the level of assistance required is similar to that of the Finnish Act. Moreover, the concept is connected with the imperative that the measures taken by the social services should be of good quality, which is also enshrined in the Act. Good quality means, for example, that the measures fulfil the objectives of the legislation. It also implies appropriate dissemination of information on the right to social assistance. 18 The level of the benefit has been criticized for being too low with regard to the standards set in the law in both countries. Another problem is the considerable degree of discretion which allows the local decision- makers to save money at the expense of the clients. The variation in social assistance concerning similar cases in different municipalities translates into violations of the principle of equal treatment. According to a study carried out by the Swedish National Board of Social Welfare some municipalities consider that the basic part of economic assistance is sufficient to provide a reasonable standard of living. However, the Act requires the local social services to assess each individual case. Moreover, the point of departure should be the cost of living of a low- wage worker, which is higher than the basic part in question. 19 The level of social assistance in Finland was judged to be inadequate by the European Committee of Social Rights of the Council of Europe. In a case submitted by the Finnish Society of Social Rights the Committee concluded unanimously that there was a violation of article 13, section 1 of the European Social Charter. It argued that the third component of social assistance and proactive assistance were only paid to a minority of social assistance claimants. Social assistance must enable its recipients to live a decent life and to cover their basic needs. Hence an acceptable minimum level of assistance, according to the Committee, should correspond to 50 % of the 18 Chapter 1, section 1, subsection 1, chapter 3, section 3, subsection 1 and chapter 14, section 2 of the Social Services Act; Ekonomiskt bistånd, Handbok 2013, 16; Grönwall and Holgersson 2004, and ; Lundgren, Sunesson and Thunved 2016, 56 and 78-79; Öppna jämförelser av ekonomiskt bistånd 2014, del 1, Kartläggning om skälig levnadsnivå 2012, 10, 13 and 28; Salonen 2013, and

9 median equivalized disposable income as calculated on the basis of the Eurostat at- risk- of- poverty threshold. The overall conclusion was the following: although the Committee cannot exclude that the total amount of benefits paid to a recipient of social assistance could reach the level of 50 % of the median equivalised income for certain recipients under certain circumstances, it does not consider it demonstrated that all persons in need are granted social assistance which is adequate. 20 Obligations of the recipients and sanctions There are also some elements of activation in the social assistance legislation of both countries. As jobseekers they have an obligation to be active and to be available for work. A small part of the beneficiary s income from wages shall not be taken into account when calculating the benefit in order to encourage him or her to take small assignments. Moreover, subject to certain conditions the recipient can be obliged to participate in activation measures. For example, immigrant claimants participating in activation measures or registered as jobseekers can be required to follow a course in Swedish or Finnish for immigrants. 21 The recipient s obligations can be enforced by sanctions. In Finland the basic amount of subsistence support can be lowered by up to 20 per cent for two months at a time in the case of non- compliance (up to 40 per cent for repeated defaulting). This benefit penalty also applies to immigrants taking up subsistence support who are involved in drafting an integration plan or engaged in integration measures. Asylum seekers who are staying in a reception centre and receive a reception allowance are obliged to participate in the work and courses organized for 20 Finnish Society of Social Rights v. Finland, complaint 88/2012. Quotation from 120, other points from 112, 118 and 125. Article 13.1 of the European Social Charter reads as follows: (the Parties undertake:) 1. to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition. 21 Chapter 4, sections 1b and 4 of the Swedish Social Services Act. Bergstrand 2016, 61 and 73-74; Ekonomiskt bistånd, Handbok 2013, 86-88; Lundgren, Sunesson and Thunved 2016, 77, and Section 11, subsection 3 of the Finnish Subsistence Support Act and section 10 of the Finnish Rehabilitative Work Activities Act (2001/189). Arajärvi 2011, 248; ADD: STM:n opas tt:sta 9

10 them. Here the sanction for non- compliance is a reduction of the allowance by up to 20 per cent for two months at the most. 22 The preceding overview shows that in Finland the severity of the sanction is only partly left to the discretion of the decision- makers. Moreover, their discretionary powers are further limited by legal provisions based on the Constitution. According to these provisions the reduction of the benefit should not endanger the recipient s indispensable subsistence necessary for a life of dignity and it should not otherwise be regarded as inequitable. In the case of refusal to accept work the offer should be specific and explicit and the job or labour market measure should enable him or her to secure their living for a reasonably long period of time. 23 In Sweden there is no connection with the Constitution. The officials have more extensive discretionary powers than in Finland as they can reject a recipient s application in case of non- compliance. They can also reduce the amount of the benefit paid to a defaulter participating in locally organized practical training or other activities intended to improve the claimants employability. Immigrants failing to engage in integration measures included in a settlement plan can be sanctioned by a reduction of their settlement allowance equivalent to the duration of their absence. The daily allowance of asylum seekers can also be reduced in certain cases of non- compliance. 24 Social assistance and residence rights in Finland and Sweden In both countries the ability to support oneself determines in many cases the immigrants residence rights. Moreover, the nature of these rights depends on how long they have been living in the country and on the category they belong to, that is whether they are Nordic citizens, EU 22 Section 2a, subsection 2 and section 10 of the Finnish Subsistence Support Act, section(s) ADD of the Rehabilitative Work Activities Act (2001/189), section(s) ADD of the Integration Promotion Act (1386/2010) and section 29 of the (CHECK NAME IN ENGLISH: ) Act on the reception of people seeking international protection (?) (2011/746). 23 Section 10, subsection 1, point 1 and subsection 3 of the Subsistence Support Act; Government Bill 217/1997, Section 19, subsection 1 of the Constitution ( ADD /1999). 24 Chapter 4, sections 4-5 of the Social Services Act, chapter 2, sections 17 and 20 of the Decree on Allowances to Certain Newly Arrived Immigrants (2010:407) and sections 10 and 17 of the Act on the Reception of Asylum Seekers (1994:137). Arbetslöshet och ekonomiskt bistånd 2015, ; Ekonomiskt bistånd. Handbok 2013,

11 citizens or third country nationals (immigrants from outside the EU). In the following we will examine how this categorization affects the interconnection between social assistance and residence rights. I will not deal, however, with sufficient resources requirements connected with family reunification. Citizens of the Nordic countries The Nordic Convention on Social Assistance and Social Services adopted on 14 June 1994 prescribes that all citizens of the Nordic countries (Denmark, Finland, Iceland, Norway and Sweden) and people lawfully residing there who are in urgent need of social assistance are entitled to the appropriate support according to the legislation of the Nordic country where they are temporarily staying or living. The Convention does not exclude repatriation of a claimant because his or her need of social assistance. However, repatriation is forbidden when the person involved has legally been living in the country during the last three years. Furthermore, in Finland repatriation of Nordic citizens applying for support has been banned in the Aliens Act and in Sweden it has been ruled out in practice. 25 The Nordic Convention and its generous implementation in Finland and Sweden provide migrant Nordic citizens claiming social assistance with strong residence rights. Also migrant EU citizens residing in an EU country have a privileged status with regard to residence rights. As both Finland and Sweden are members of the EU this raises the question whether migrant claimants of the other EU countries should be given the same rights as Nordic citizens because of the fundamental principle of equal treatment of EU citizens. EU citizens The residence rights of EU citizens are regulated by the free movement directive 2004/38/EC, which also applies to citizens of the EEA (the European Economic Area, that is Iceland, Liechtenstein and Norway) and Switzerland. The national legal provisions implementing the 25 Art, 2, section 1, art. 3-4 and 6-7 of the Convention. Section 157, 158a, subsection 3 and 169 of the Finnish Aliens Act (2004/301). On desisting from repatriation see art. 7 of the Convention, which also includes discretionary limitations of repatriation decisions. Also Ketscher 2013, ; Stoor 2015a, 8; Stoor 2015b, 71; Toimeentulotuki. Opas 2013, 176. According to Ekonomiskt bistånd. Handbok 2013, 45, however, repatriation of Nordic citizens because of their need of social assistance would occur in Sweden albeit very rarely CHECK OTHER SOURCES. 11

12 directive are in Finland and Sweden included in the Aliens Act 26. EU migrants residence rights are mainly determined by the length of the time they have spent in the EU country concerned and by the divide between economically active and inactive (or not self- supporting) migrants. Residence rights imply that EU migrants and their family members are entitled to social assistance and other social benefits on an equal footing with the nationals of the EU country where they are residing. As an exception to this principle the member states are not obliged to confer entitlement to social assistance on EU migrants during the first three months of residence. 27 However, Finland and Sweden have not taken advantage of this exception and grant social assistance to EU migrants from the beginning of their stay. All EU citizens and their family members have the right of residence up to three months as long as they do not become an unreasonable burden on the social assistance system of the host Member State. Likewise, economically inactive EU migrants have the right of residence for more than three months if they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State. 28 EU citizens are normally entitled to comprehensive sickness insurance all over the EU if they are registered in the social security system of any member state. 29 The concept (unreasonable) burden on the social assistance system has been interpreted in an unclear and controversial way by the Court of Justice of the EU. The Court seems to have changed its approach to the free movement of economically inactive EU migrants in need of social assistance, as will be explained below in the discussion section. Workers and self- employed persons (as well as their family members) are exempted from the sufficient resources requirement. They also retain their status with regard to residence rights under certain circumstances when they stop working, for example because of involuntary unemployment. The Court has developed an extensive definition of worker in its case law. 26 Chapter 10 of the Finnish Aliens Act (2004/301) and chapter 3a of the Swedish Aliens Act (2005:716). 27 Art. 24 of the free movement directive. 28 Art. 14, section 1 and art. 7, section 1(b) of the free movement directive. ADD Fi/Sw Aliens Act. 29 ADD REFERENCE 12

13 Activities which are purely marginal and ancillary are excluded, but migrants owning less than the minimum required for subsistence are regarded as workers. 30 The sufficient resources requirement no longer applies when an EU migrant has obtained the right of permanent residence after having resided legally in the country for a continuous period of five years. The same pertains to his or her family members (including third country nationals) who fulfil the same condition. Continuity of residence is not affected by temporary absences not exceeding a total of six months a year nor by certain longer legitimate absences. Once acquired, the status can only be lost through absence for a period exceeding two consecutive years. 31 EU migrants who are not permanent residents and do not have sufficient resources can be expelled. However, this option is subject to many limitations. According to the preamble to the free movement directive an expulsion measure should not be the automatic consequence of recourse to the social assistance system. The authorities should examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted. Expulsion of workers, self- employed persons or jobseekers as defined by the Court of Justice of the EU is excluded, except on grounds of public policy or public security. Part of these limitations are repeated in article 14 of the directive, which adds that the member states may verify whether EU migrants fulfil the sufficient resources requirement (or certain other requirements). However, this verification should not be carried out systematically. 32 Decision- making on expulsion measures may also be influenced by some other factors. In Finland and Sweden the social services are not allowed to inform the immigration authorities on their own initiative of the fact that an immigrant applies for or takes up social assistance, but are obliged to provide such information when requested. Moreover, the free movement directive forbids the imposition of an entry ban in connection with expulsion because of lack of resources. This means in practice that expelled individuals can return to the former host country whenever they want to because EU citizens need only a valid identity card or passport to move within the EU. Admittedly, expulsion may act as a deterrent. Another potentially significant factor is the indeterminate line of 30 Art. 7, section 1(a) and sections 2-3 of the directive. Verschueren 2015, ADD Fi/Sw Aliens Act. 31 Art. 16 of the free movement directive. ADD Fi/Sw Aliens Act. 32 Recital 16 of the preamble to the free movement directive and art. 14, sections

14 interpretation of the Court of Justice of the EU to be examined below. It is difficult to assess the effects of the sufficient resources requirement and its limitations. In Finland there are no statistical data on the number of EU citizens (or other immigrants) who have been expelled because they did not fulfil this condition of residence rights. In Sweden CHECK 33 Third country nationals Third country nationals (here I mean immigrants from outside the EU, the EEA, Switzerland and the Nordic countries) have, as we have seen, equal rights to social assistance as the inhabitants of Finland and Sweden. In Sweden asylum seekers are even entitled to complementary economic assistance to complement the benefits connected with their reception. In Finland the corresponding reception allowance is meant to replace social assistance entirely (CHECK HE). However, the residence rights of third country nationals are more restricted than those of EU migrants and they should be self- supporting without being protected by the enlarged definition of that status in EU law. Naturally, also the position of poor third country nationals is to some extent secured against expulsion measures depending on their personal circumstances.. ADD... Discussion The interplay between residence rights and the right to social assistance As I have shown immigrants entitlement to social assistance in Finland and Sweden is based on the universal policy goal to provide on an equal footing for the basic needs of everybody residing or staying in the country. At the initial stage of residence, however, immigrants applying for or taking up social assistance and thereby revealing their lack of resources may (Nordic citizens in 33 Disclosing confidential information is regulated in section 18, subsection 4 and section 20, subsection 1 of the Finnish Act Relating to the Position and Rights of the Social Welfare Client (2000/812) and in section 3 and section 8, subsection 1, point 6 of the Aliens Register Act (1997/1270). On the entry ban and its effects see art. 5, section 1 and art. 15, section 3 of the free movement directive, section 155, section 158, subsections 1-2 and section 170, subsection 1 of the Finnish Aliens Act as well as Puumalainen 2009, and 146. Also chapter 8, section 23, subsection 2 of the Swedish Aliens Act. The lack of statistical data in Finland was reported by by the Finnish Immigration Service on 25 February SWEDISH DATA 14

15 Finland excepted) be exposed to loss of residence rights, expulsion and by the same token to termination of their entitlement. After three or five years of residence immigrants have the same rights to social assistance as the nationals of the host country. The threat of expulsion may deter immigrants in need from applying for social assistance, which diminishes the applicability of the universal principle instrumental in reducing poverty. Moreover, destitution involves the risk of exploitation by unscrupulous employers and of engagement in criminal but profitable activities. From the point of view of the implementation of the disparate legal provisions to be applied different aspects of the information flow should be taken into account. Immigrants may have formed erroneous ideas about the duties and powers of the authorities and their limitations. They may well be unaware that in Finland and Sweden the social services are not allowed to inform the migration authorities on their own initiative of social assistance applied for or taken up by immigrants. It has also appeared that incorrect and incomplete information has been included in the interpretation guidelines issued by the Finnish Ministry of Social Affairs and Health and some Finnish municipalities. This raises questions about the competence and impartiality of these Finnish authorities. The immigrants uncertainty about their rights during their first years of residence is further aggravated by the indeterminacy of certain legal provisions in national migration law and EU law..add Finnish and Swedish Aliens Act.. Recent developments in EU law call for a close look at the recent rulings of the Court of Justice of the EU (CJEU) concerning the interpretation of the free movement directive. These judgments may have a significant impact on the pertinent national legislation and its implementation. The sufficient resources requirement in recent EU case law In EU law expulsion measures based on a lack of sufficient resources are subject to many limitations, as indicated above. The residence rights of indigent EU migrants who are not 15

16 permanent residents depend on the interpretation of the concept (unreasonable) burden on the social assistance system. Taking into account the constitutional status of the free movement principle this formulation calls for a careful balance between opposite interests. In its ruling on the Brey case the CJEU stated that member states have a legitimate interest in the protection of their public finances but recognized a certain degree of financial solidarity between nationals of the host state and EU immigrants who are not economically active. The Court declared that the sufficient resources requirement must be construed narrowly because freedom of movement is a fundamental principle of EU law and a primary right of EU citizens. Moreover, the host state should apply the proportionality principle when examining the application of the requirement. The Court left it to the national judiciary to decide whether granting the benefit in question to Mr Brey would be likely to place an unreasonable burden on the social assistance system, without specifying how this should be done in practice. However, in the case at hand it denied the validity of national legislation automatically excluding EU migrants lacking sufficient resources from entitlement to the benefit concerned. 34 The CJEU adopted a different approach in the Dano case. In this judgment by the Grand Chamber the court sidestepped the constitutional nature of the right to freedom of movement and focused on the effective application of the requirement to reduce the costs resulting from EU migrants in need of social assistance. The court did not refer to the proportionality principle and limited the examination of Ms Dano s personal circumstances to whether she had sufficient resources to qualify for residence rights and whether she used her right to freedom of movement solely in order to obtain another Member State s social assistance. Consequently, the Court approved the refusal to grant social assistance to Ms Dano. The Grand Chamber observed that unequal treatment between EU migrants and nationals of the host state with regard to the grant of social benefits is an inevitable consequence of the sufficient resources requirement. 35 The Grand Chamber continued to develop its new approach in the Alimanovic judgment. The case concerned EU migrants who had lost their position as workers and were refused social assistance. The Court upheld the refusal and argued that the time scale (a period of six months included in the 34 Brey, case C- 140/12, 19 September 2013, paragraphs 55, and Dano C- 333/13 11 November 2014, paragraphs 39-44, 55 and 76-84, quotation from paragraph

17 free movement directive) during which the right to social assistance is retained after the cessation of employment makes an assessment of the migrant s individual situation unnecessary and complies with the proportionality principle. 36 Here the Court did not omit the proportionality principle nor the assessment of the unreasonable burden on the social assistance system as it had done in Dano. In the latter decision the Court had taken up the national financial interest from another angle by putting forward that the sufficient resources requirement seeks to prevent economically inactive Union citizens from using the Member State s welfare system to fund their means of subsistence 37. The Alimanovic judgment merely remarked that the assistance given to a single applicant does not constitute an unreasonable burden but that the accumulation of all the individual claims submitted would be bound to create such a burden. The Court applied the same line of reasoning in the Garcia- Nieto case. In this case too it considered the assessment of the migrant s individual situation unnecessary and the stipulations of the legal provisions concerned sufficient to fulfil the proportionality requirement. The unreasonable burden question was equally dealt with by referring to the loose accumulation argument. This argument had earlier been rejected in a study funded by the EU Commission. According to this research EU migrant citizens are no more likely to have recourse to non- contributory social benefits than nationals of the host state. Moreover, the Commission pointed out that receiving countries gain from free movement. 38 The Commission proceeded to defend itself the right of economically inactive EU migrants to free movement in the case Commission vs UK. Its action was prompted by numerous complaints from EU migrants resident in the UK that the authorities had refused to grant them certain social benefits because they did not have the right to reside. The judgment concerned child benefit and child tax credit, which are pure social security benefits governed by Regulation 883/2004 on the coordination of social security systems. The CJEU concluded that the right to reside test could be 36 Alimanovic C- 67/14, 15 September 2015, paragraphs Dano, paragraph Alimanovic, paragraph 62 and Garcia- Nieto, case C- 299/14, 25 February 2016, p. 7. The study (published in 2013) and the response of the Commission are referred to in Thym 2015, 29 and Verschueren 2015b,

18 imposed by national legislation but constitutes indirect discrimination. However, drawing on Brey and Dano, it ruled that this was justified by the legitimate objective to protect the finances of the host member state. The Court did not define the unreasonable burden but argued that granting a social benefit to EU migrants who are not economically active could have consequences for the overall level of assistance which may be accorded by the host state. It disposed of the proportionality issue by remarking that the Commission had not provided evidence or arguments showing that the UK right of residence test did not satisfy the conditions of proportionality. 39 Criticism of the CJEU s new approach By extending the sufficient resources requirement from social assistance (and similar basic provision benefits) to pure social security benefits the Commission vs UK judgment, together with Brey, Dano and Alimanovic, paves the way for national legislation disentitling EU migrants in need from their social EU citizenship. The right of host member states to refuse social assistance to EU migrants who do not enjoy a right of residence was already highlighted in February 2016 in the conclusions of the European Council concerning a new settlement for the UK within the EU. 40 Moreover, the Court s new approach corresponds to the opinion of the German Constitutional Court which held that fundamental social policy choices constitute a core element of democracy and belong to the national sphere. 41 However, the recent rulings of the CJEU weaken considerably the position of EU migrants in need and are in contradiction with the Union s objective to combat poverty and social exclusion. 42 In this context it is also problematic that the Court (explicitly in Dano and implicitly in the other judgments in question) refrained from applying the EU Charter of Fundamental Rights to the cases involved. The CJEU only examined the sphere of application of the Charter in Dano and concluded that the conditions of entitlement to the benefits concerned are determined by the legislation of each member state while the Charter is applicable only when member states are implementing EU 39 Commission vs UK, case C- 308/14, paragraphs 21, 65-68, and Quoted in Iliopoulou- Penot 2016, Opinion cited in Thym 2015, 31. Also de Witte 2012, 3, 9 and 14 defends the unequal treatment of EU migrants applying for benefits. 42 Verschueren 2015a, 384 and ; Verschueren 2015b,

19 law. This means that the Court considered irrelevant the EU migrants right to social benefits and social assistance enshrined in the Charter as well as its provisions on the rights of the child (the little son of Ms Dano was a party in the proceedings). The Court s view is very surprising because the free movement directive and its implementation were central in the cases under scrutiny. 43 The Dano ruling has been criticized because it meant an excessive limitation of the freedom of movement and because earlier in similar cases the Court had not regarded the migrant s motivation as a relevant factor. 44 By reducing the examination of the personal circumstances of Ms Dano to the, in my view, speculative and shortsighted assessment of her intentions (and the merely functional statement about her lack of sufficient resources) the CJEU sidelined the principle of proportionality and its constitutional role. For the interpretation of the unreasonable burden the Court has adopted a clear- cut and radical solution in Alimanovic and Garcia- Nieto by excluding additional social benefit costs caused by even one single family. This overstretched reading of the term has been replaced in Commission vs UK (which involved pure social security benefits) by possible consequences for the overall level of assistance, a formulation equally prioritizing national financial interests. The timing of the restrictive judgments could be significant as the Court may have been influenced by increasing political tensions related to migration. Another reason for the changes in the case law may be the Court s wish to provide simple interpretation rules at the expense of specific evidence. 45 It remains to be seen whether the new rulings will translate into amendments to national legislation and changes in social policy. The future development of national legislation According to the preamble of the free movement directive the directive should not affect more favourable national provisions. 46 So there is no need to change the Finnish and Swedish legislation because of the new case law. Non- permanent residents whose residence rights are terminated can be expelled but the limitations based on proportionality should be observed. These limitations 43 Dano, paragraphs Thym 2015, 48; Verschueren 2015a, 387 and 390. Art. 24 and 34 of the Charter of Fundamental Rights of 12 December Shuibhne 2015, ; Thym 2015, 41-47; Verschueren 2015a, and Iliopoulou- Penot 2016, 1008 and Recital 29 of the preamble. 19

20 are laid down in the Finnish and Swedish Aliens Act and in the free movement directive. In its new approach to the application of the sufficient resources requirement the CJEU disregarded almost completely the principle of proportionality. Even if one accepts this drastic move it is questionable whether the Court would minimize the principle in the same way in actual expulsion cases subsequent to loss of residence rights. Moreover, the free movement directive includes some safeguards protecting EU migrants against improper expulsion measures. 47 Considerations based on proportionality are part of the national legal provisions on expulsion as well. One important constraint is the time limit before which the migrants in question should not be obliged to leave the country. According to the directive this minimum time frame is normally one month and when they apply for suspension of enforcement in connection with an appeal the applications should first be adjudicated. Correspondingly, the Aliens Acts provide ADD The length of the expulsion procedures is likely to lead to further applications for regular social assistance, not only emergency assistance. Governments in Finland and Sweden may be tempted to propose amendments with a view to reduce the level of social assistance to which the immigrants in question are entitled. However, there is a risk that such amendments would violate article 13 of the European Social Charter guaranteeing the right to adequate social assistance, especially because the benefit has already been regarded as insufficient. The social services and migration authorities have a large measure of discretion which easily results in legal uncertainty for the immigrants. Governments can improve this situation by clarifying the discretionary legal provisions and guidelines on social assistance and protection against expulsion. For example, the concept emergency assistance should be specified and narrowed by means of a time limit. In EU law the legal position of non- permanent EU migrants who are not economically active remains ambiguous for several reasons 49. One contextual reason is that there are tensions between the opposite policy goals to combat poverty and to preserve the financial interests of the member states. Moreover, the CJEU s decision not to apply the Charter of Fundamental Rights does not seem a sustainable position. Non- permanent EU migrants who are not economically active are a vulnerable minority which needs legal certainty and more protection. 47 Art. 15 and of the free movement directive and recital 16 of the preamble. Especially art. 31, section 3 highlights the proportionality test. Verschueren 2015a, Art. 15, sections 1-2, art. 30, section 3 and art. 31, section 2 of the free movement directive. Section Finnish/Swedish Aliens Act ADD 49 Thym 2015, 39, 41 and