Social Benefits Tourism (Welfare Migration) The USA Experience. A.P. van der Mei FreSsco, Maastricht University Leiden, 28 October 2016

Transcription

1 Social Benefits Tourism (Welfare Migration) The USA Experience A.P. van der Mei FreSsco, Maastricht University Leiden, 28 October 2016

2 Free movement of persons within the US The right to travel Freedom to cross the inter-state borders + the right to live in the State of one s choice Inherent in US citizenship - Edwards v California (1941) Also for the poor It is a privilege of [US] citizenship [..] to enter any State of the Union either for temporary sojourn or for the establishment of permanent residence therein.. If national citizenship means less than this it means nothing. to deny indigents freedom of movement would introduce a caste system utterly incompatible with the spirit of our system of government. It would permit those who were stigmatized by a State as indigents, paupers, or vagabonds to be relegated to an inferior class of citizenship. It would prevent a citizen, because he was poor, from seeking new horizons in other States. It might thus withhold from large segments of our people that mobility which is basic to any guarantee of freedom of opportunity. The result would be a substantial dilution of the right of national citizenship, a serious impairment of the principles of equality". "a State may no more try to fence out those indigents who seek higher welfare benefits than it may try to fence out indigents generally. Implicit in any such distinction is the notion that indigents who enter a State with the hope of securing higher welfare benefits are somehow less deserving than indigents who do not take this consideration into account. But we do not perceive why a mother who is seeking to make a new life for herself and her children should be regarded as less deserving because she considers, among others, the level of a State's public assistance. Surely such a mother is no less deserving than a mother who moves into a particular State in order to take advantage of its better educational opportunities.

3 Equal treatment Durational residence (or waiting-period) requirements Shapiro v Thompson (1969) Saenz v Roe (1999): US citizenship plus State citizenship In moving from State to State.. [appellees] were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional "The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens

4 US v EU US EU Unconditional right to freedom of movement for all Conditional right to freedom of movement workers v economically inactive Access to welfare no impact on residence Access to social assistance may lead to loss of residence Right to welfare upon arrival Right to social assistance conditional upon work or length of residence Þ So: What explains the difference?

5 Explaining the difference Social benefit tourism (or welfare migration)? Welfare magnet debate Saenz v Roe: California can just as well save the amout of $ 10.9 by decreasing welfare benefits for all recipient by 72 cents per month Past contributions argument Court v Congress Shapiro: This argument would permit States to bar new residents from schools, parks, and libraries or deprive them from police and fire protection. It would [..] permit States to apportion all benefits and services according to the past contributions of citizens. The Equal Protection Clause prohibits such an apportionment of state services. Shapiro: Congress may not authorize States to violate the Equal Protection Clause Federal funding

6 Poverty as a comon problem New Deal Edwards: "The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several States must sink or swim together, and in the long run prosperity and salvation are in union and not division.

7 FreSsco EU-wide network of independent experts in the fields of free movement of workers (FMW) & social security coordination (SSC)

8 FreSsco Goals Offers high quality legal expertise in the areas of FMW and SSC Reports Comparative National implementation of Directive 2014/54 Analytical Effective judicial protection in the framework of Directive 2014/54/EC Access to healthcare in cross-border situations Ad hoc analyitical support The principle of assimilation of facts Disseminate expertise and increases experts and practitioners knowledge Organising seminars, sharing information and building networks between stakeholders

9 FreSsco Fast facts 32 countries Ghent University plus Eftheia European Commission FreSsco website (EUROPA) p?catid=1098&langid=en Implemented by Ghent University National experts + analytical experts

10 FAMILY BENEFITS IN THE EU Prof. dr. Grega Strban Faculty of Law, University of Ljubljana, FreSsco Social Tourism within the EU: Legal and Practical Reflections on a Political Debate, Leiden, 28 October 2016

11 Introductory Remarks Maternity/paternity, family as social risks Three assumptions of social security Standard beneficiary according to ILO C 102 Assumptions are no longer valid Atypical work, dual earner model, way of living

12 Introductory Remarks Variety of family benefits Competence of MS New patterns of mobility Promoted mobility within EU Families living in more than one MS Exporting of family benefits?

13 Defining Family Benefits A plethora of family benefits Intended to meet family expenses Periodical payments or not In cash or in kind Social insurance or tax based or social assistance Child benefits or child raising or child care allowances Birth/adoption grants, supplements (for single parents) Benefits for disabled children (link to invalidity or LTC) Social services or tax relief

14 Defining Family Benefits Family benefits in social security coordination Regulation (EC) 883/2004 Simplification? Family benefits and family allowances? Decisions of the CJEU Now comprehensive approach to Family benefits Excluded Advances of maintenance allowances Childbirth and adoption allowances (Annex 1 to the Reg.)

15 Defining a Family? Family benefits granted to a family Family Defined by national legislation If not? Then spouse, minor and dependent children Living in the same household or mainly dependent? Married or divorced? Who is claimant? Entitling, entitled and receiving person

16 Social Security Coordination Regulation = unification? Formal social security law Competence of MS Substantive social security law Coordination principles Deviations at family benefits?

17 Social Security Coordination Equal treatment and family benefits Nationality or residence conditions Legal fiction - family members residing with entitled person Where is residence? CJEU decisions

18 Social Security Coordination Determining applicable legislation Purpose of only one MS being competent Deviating from the general principle CJEU cases (Bosmann, Hudziński and Wawrzyniak) Two MS may be competent Anti-overlapping rules for benefits of the same kind Which family benefits are of the same kind? (CJEU Wiering)

19 Social Security Coordination Export of (un)adjusted family benefits? Export a misleading notion? Export is being contested by some MS Brexit agreement (Annex V) indexation of FB

20 Social Security Coordination Problems of Brexit agreement : - Child benefits? - Worker s residence? - Which rules and data? - Reverse priority or SNCB? - Fully compatible with the treaties (for UK only?) - Two-way indexation? Optional? Only reduction? - No distinction within MS also none within EU?

21 Concluding Thoughts Changed social relations and CJEU case-law Rethinking the coordination of FB is necessary Is it still possible to coordinate all kinds of family support? Focus on the child (closest link)? Coordination of classic child benefits ( family allowances )? Other family benefits still under EU law (as social and tax advantages)?

22 Latest developments in the field of Social Security Coordination FreSsco Seminar Leiden (NL), 28 October 2016 Marzena BRAUHOFF Directorate-General for Employment, Social Affairs and Inclusion Unit D2 Social Security Coordination

23 Overview 1) Activities of the Administrative Commission Recent Decisions Reflection Forum Ongoing work in the field of applicable legislation Statistical data collection 2) Electronic Exchange of Social Security Information (EESSI) 3) Recent case-law

24 Activities of the Administrative Commission

25 Decisions of the Administrative Commission Decision No F2 of 23 June family benefits (OJ C 52, , p 11-12) Decision No H7 of 25 June 2015 amending Decision H3 of 15 October rates of conversion (OJ C 52, , p 13) Decision No H8 of 17 December 2015 rules for the Technical Commission (OJ C 263, , p. 3)

26 Reflection Forum on EU Social Security Coordination Purpose: to brainstorm in the long-term perspective 4 th Reflection Forum in December 2015 on family benefits: Implications of Wiering judgment Calculation of differential supplement per child or per family The definition of member of the family Potential need for more detailed coordination rules for specific types of benefits Discussion ongoing within the Administrative Commission

27 Reflection Forum on EU Social Security Coordination 5 th Reflection Forum 8 March 2016 on activation measures: New trends and developments in MS activation measures and their cross-border dimension Practical issues of social security coordination emanating from the interaction between national activation measures and the EU coordination rules Activation measures and changes in applicable legislation 6 th Reflection Forum 13 December 2016 on assimilation of facts

28 Ad hoc Group on Posting Issues Set up by a decision of the Administrative Commission of December 2014 Mandate was not related to the targeted review of the Posting of Workers Directive 96/71/EC Entirely focused on posting within the meaning of Regulation (EC) No 883/2004

29 Ad hoc Group on Posting Issues - report Proposals for solutions on applicable legislation, conciliation procedure and administrative problems with PDA1 Recommendations for interpretation of provisions of the Regulations, Administrative Commission Decisions and the Practical Guide on Applicable Legislation Identifies some unresolved problems

30 Ad hoc Group on Posting Issues follow up Report adopted by the AHG on 3 May 2016 Discussion in the Working Party and the Administrative Commission in June 2016 Roadmap adopted in October 2016

31 Statistical data collection Required by Article 91 of Reg. 987/2009 Network of experts on statistics FMW and SSC Branches covered: Sickness benefits (EHIC, PD S2, PD S1, lump-sums) Unemployment benefits: (aggregation -PD U1 and export - PD U2) Export of family benefits Cross-border pensions (PD P1) Posting of workers (PD A1) Fraud and error Recovery procedure

32 Electronic Exchange of Social Security Information (EESSI)

33 EESSI - highlights 14,1 million EU citizens living in another Member State, all insured persons potential beneficiaries of social security coordination rules Over institutions connected through Access Points (over 60) Master Directory with contact details of institutions already available Several million messages are likely to be exchanged each year Approximately 300 Structured Electronic Documents (SEDs) defined and agreed for the exchanges 12

34 EESSI - high level steps towards delivery Mid-2017 to mid to mid Close of 2013 Iterative phases with gradual development of pilot builds Full implementation of the EESSI solution in all Member States Agreement on choice of technical direction, the management approach and governance structure

35 Recent case-law

36 Case C-308/14, Commission v UK (Right to Reside) Further clarification of the relationship between Reg. 883/2004 and Directive 2004/38 Extends the case-law in Brey (C-140/12), Dano (C-333/13), Alimanovic (C- 67/14) and Garcia-Nieto (C-299/14) MS can require EU citizens' legal residence to access social security benefits provided that: - restriction proportionate and not systematically applied

37 Pending Cases C-569/15 X and C- 570/15 X: employment in two or more MS unpaid leave and unauthorised home-working C-89/16 Szoja: marginal employment activity C-365/15 COM.vs. Belgium, C-620/15 A-ROSA and C-359/16 Altun: the power of the national court to verify the validity of the posting certificate E101 issued by another MS C-430/15 Tolley: applicable legislation and export of cash benefits

38 Questions? Thank you for your attention! Visit

39 Social Tourism and Brexit: Causes and effects Niamh Nic Shuibhne FreSscoseminar, Leiden University 28 October 2016

40 1. Introduction

41 2. Social tourism : abuse or misuse of rights? From the November 2015 letter: We need to crack down on the abuse of free movement, an issue on which I have found wide support in my discussions with colleagues. This includes tougher and longer re- entry bans for fraudsters and people who collude in sham marriages. It means addressing the fact that it is easier for an EU citizen to bring a non- EU spouse to Britain than it is for a British citizen to do the same. It means stronger powers to deport criminals and stop them coming back, as well as preventing entry in the first place. And it means addressing ECJ judgments that have widened the scope of free movement in a way that has made it more difficult to tackle this kind of abuse. But we need to go further to reduce the numbers coming here. As I have said previously, we can reduce the flow of people coming from within the EU by reducing the draw that our welfare system can exert across Europe. So we have proposed that people coming to Britain from the EU must live here and contribute for four years before they qualify for in- work benefits or social housing. And that we should end the practice of sending child benefit overseas.

42 2. Social tourism : abuse or misuse of rights? What is social tourism? AG Geelhoed in Case C- 456/02 Trojani Noting the legislative [then: Directive 90/364, preamble] concept of unreasonable burden on the public finances of the host country Thus, it is possible to prevent the right of residence being used for social tourism, i.e. moving to a Member State with a more congenial social security environment (para. 13) So long as social security systems have not been harmonised in terms of the level of benefits, there remains a risk of social tourism, i.e. moving to a Member State with a more congenial social security environment. And that is certainly not the intention of the EC Treaty, which to a considerable extent leaves responsibility for social policy in the hands of the Member States (para. 18)

43 2. Social tourism : abuse or misuse of rights? What is social tourism? AG Geelhoed in Case C- 456/02 Trojani the basic principle of [EU] law is that persons who depend on social assistance will be taken care of in their own Member State (para. 70) AG found no right to reside for Mr Trojani under EU law and therefore no legitimate claim to equal treatment re access to social assistance But cf. Judgment of the Court Moses LJ in UK CoA (Abdirahman [2007] EWCA Civ 657) cited para. 70 from AG Opinion, but noted that this important principle is not expressed by the ECJ itself (para. 68)

44 2. Social tourism : abuse or misuse of rights? Supporting economic activity: workers The fact that the income from employment is lower than the minimum required for subsistence does not prevent the person from being regarded as a worker within the meaning of Article [45 TFEU] even if the person in question seeks to supplement that remuneration by other means of subsistence such as financial assistance drawn from the public funds of the State in which he resides (Joined Cases C- 22/08 and C- 23/08 Vatsouras and Koupatantze, para. 28) [A]lthough budgetary considerations may underlie a Member State s choice of social policy and influence the nature or scope of the social protection measures which it wishes to adopt, they do not in themselves constitute an aim pursued by that policy and cannot therefore justify discrimination against migrant workers To accept that budgetary concerns may justify a difference in treatment between migrant workers and national workers would imply that the application and the scope of a rule of EU law as fundamental as non- discrimination on grounds of nationality might vary in time and place according to the state of the public finances of Member States (Case C- 542/09 Commission v Netherlands, paras 57-58) As regards the risk of abuse arising in particular from the performance of short periods of employment solely for the purposes of obtaining portable funding the concept of worker for the purposes of Article 45 TFEU has an autonomous meaning specific to EU law and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be purely marginal and ancillary, must be regarded as a worker (para. 68) The reasons which may be invoked by a Member State by way of justification must be accompanied by an analysis of the appropriateness and proportionality of the measure adopted by that State and specific evidence substantiating its arguments (paras 81-82)

45 2. Social tourism : abuse or misuse of rights? Supporting economic activity: workers versus potential workers The fact that the income from employment is lower than the minimum required for subsistence does not prevent the person in such employment from being regarded as a worker within the meaning of Article [45 TFEU] even if the person in question seeks to supplement that remuneration by other means of subsistence such as financial assistance drawn from the public funds of the State in which he resides (Vatsouras and Koupatantze, para. 28) Case C- 67/14 Alimanovic: the predominant function of the benefits at issue in the main proceedings is in fact to cover the minimum subsistence costs necessary to lead a life in keeping with human dignity. It follows from those considerations that those benefits cannot be characterised as benefits of a financial nature which are intended to facilitate access to the labour market of a Member State (paras 45-46)

46 2. Social tourism : abuse or misuse of rights? Supporting economic activity: workers versus economically inactive citizens Alimanovic: Directive 2004/38, establishing a gradual system as regards the retention of the status of worker which seeks to safeguard the right of residence and access to social assistance, itself takes into consideration various factors characterising the individual situation of each applicant for social assistance and, in particular, the duration of the exercise of any economic activity (para. 60) Alimanovic: the assistance awarded to a single applicant can scarcely be described as an unreasonable burden for a Member State, within the meaning of Article 14(1) of Directive 2004/38. However, while an individual claim might not place the Member State concerned under an unreasonable burden, the accumulation of all the individual claims which would be submitted to it would be bound to do so (para. 62) Case C- 333/13 Dano viz. Art 7(1)(b) Directive 2004/38: [a] Member State must therefore have the possibility...of refusing to grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement solely in order to obtain another Member State s social assistance although they do not have sufficient resources to claim a right of residence (para. 78)

47 2. Social tourism : abuse or misuse of rights? Directive 2004/38, Article 35: Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31 Case C- 202/13 McCarthy II (December 2014) Member States are required to recognise such a residence card for the purposes of entry into their territory without a visa, unless doubt is cast on the authenticity of that card and the correctness of the data appearing on it by concrete evidence that relates to the individual case in question and justifies the conclusion that there is an abuse of rights or fraud (para. 53) the Court has stated that proof of an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved, and, second, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it (para. 54) In the absence of an express provision in Directive 2004/38, the fact that a Member State is faced, as the United Kingdom considers itself to be, with a high number of cases of abuse of rights or fraud committed by third- country nationals resorting to sham marriages or using falsified residence cards cannot justify the adoption of a measure, such as that at issue in the main proceedings, founded on considerations of general prevention, to the exclusion of any specific assessment of the conduct of the person concerned himself Such measures, being automatic in nature, would allow Member States to leave the provisions of Directive 2004/38 unapplied and would disregard the very substance of the primary and individual right of Union citizens to move and reside freely within the territory of the Member States and of the derived rights enjoyed by those citizens family members who are not nationals of a Member State (paras 55-57)

48 3. Social tourism and the UK courts Sedley LJ in Morris [2005] EWCA Civ 1184 Neither the evidence nor the argument, in my judgment, shows the rule created by s.185(4) to be a proportionate or reasonable response to the perceived problem. The problem is in all significant respects a problem of foreign nationals either coming to this country (benefit tourism) or outstaying their leave to be here (irregular status) in order to take advantage of the priority housing status accorded to homeless families. Measures directed at this, I accept, require no explicit justification, whether because they are an aspect of immigration control or because they are an obviously legitimate response to a manifest problem. But a policy objective of discouraging British citizens from coming or remaining here needs justification (para. 47) Cited and applied in the EU context by Lloyd LJ in Abdirahman [2007] EWCA Civ 657 (para. 50) putting foreign nationals under pressure to leave if they cannot regularise their stay is a perfectly intelligible policy objective (para. 46)

49 3. Social tourism and the UK courts Sedley LJ in Morris [2005] EWCA Civ 1184 Reducing the incentive for people to come to Britain for the purpose of claiming benefits or services is a perfectly legitimate policy objective. But its application to an adult who is here as of right, and who has her child with her, is far from obvious. Nobody was entitled to ask Mrs Morris why she chose to be in the United Kingdom or to put her under pressure to leave. Her daughter, on the assumed facts, had a different and more precarious immigration status, but there was nothing to suggest that it was in order to facilitate a claim for emergency housing assistance that she was here with her mother. Nor would that be the natural or normal inference. In other words, there was no good reason to regard Mrs Morris's application for emergency housing assistance with her daughter as in any sense benefit tourism rather than as a reaction to a crisis which had overtaken them while she was lawfully here and her daughter, who was subject to immigration control, was with her (paras 40-41)

50 3. Social tourism and the UK courts Right to reside test EEA nationals; eligibility test for range of benefits under UK rules Upheld by UKSC in Patmalniece pre Dano/Alimanovic [2011] UKSC 11 EU law is not a passport to the same social benefits in every member state in every situation. There is a place for separate national benefit systems in which claimants from another member state cannot always participate (Lord Hope, para. 28) UK test linked primarily to real link EU case law (not the conditions in Directive 2004/38): This is not because of their nationality or because of where they have come from. It is because of the principle that only those who are economically or socially integrated with the host Member State should have access to its social assistance system (Lord Hope, para. 52) There is an obvious temptation for governments, in the face of understandable popular feeling (in this case, against benefit tourism ) to try to draft their way out of direct into indirect discrimination, with a view to avoiding having to distribute large sums out of public funds, or having to make some other commitment of national resources, to beneficiaries whom their electors would not regard as deserving (Lord Walker, para. 72,) Mirga pre Dano/Alimanovic [2012] EWCA Civ 1952: the legislation concerning rights to residence was generally justified in Patmalniece, certainly by reference to the benefit tourism issue; however it remained so justified whether or not the individual could or should be regarded as a benefit tourist (para. 30)

51 3. Social tourism and the UK courts Right to reside test: proportionality Mirga (appeal to UKSC) post Dano/Alimanovic [2016] UKSC 1 Where a national of another member state is not a worker, self- employed or a student, and has no, or very limited, means of support and no medical insurance it would severely undermine the whole thrust and purpose of the 2004 Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances It would also place a substantial burden on a host member state if it had to carry out a proportionality exercise in every case where the right of residence (or indeed the right against discrimination) was invoked Even if there is a category of exceptional cases where proportionality could come into play, I do not consider that either Ms Mirga or Mr Samin could possibly satisfy it. They were in a wholly different position from Mr Baumbast: he was not seeking social assistance, he fell short of the self- sufficiency criteria to a very small extent indeed, and he had worked in this country for many years. By contrast Ms Mirga and Mr Samin were seeking social assistance, neither of them had any significant means of support or any medical insurance, and neither had worked for sustained periods in this country Whatever sympathy one may naturally feel for Ms Mirga and Mr Samin, their respective applications for income support and housing assistance represent precisely what was said by the Grand Chamber in Dano, para 75 (supported by its later reasoning in Alimanovic ) to be the aim of the 2004 Directive to stop, namely economically inactive Union citizens using the host member state's welfare system to fund their means of subsistence (Lord Neuberger, paras 69-71)

52 4. Social tourism and the Brexit environment April 2013: Letter from home office ministers of Austria, Germany, Netherlands, and UK We are fully committed to the common European right to the freedom of movement. We will always welcome Union citizens who move to another EU country to work or to take up professional training or university studies a number of municipalities, towns and cities in various Member States are under a considerable strain by certain immigrants from other Member States. These immigrants avail themselves of the opportunities that freedom of movement provides, without, however, fulfilling the requirements for exercising this right. This type of immigration burdens the host societies with considerable additional costs, in particular caused by the provision of schooling, health care and adequate accommodation. On top of this strain on vital local services, a significant number of new immigrants draw social assistance in the host countries, frequently without a genuine entitlement, burdening the host countries social welfare systems

53 4. Social tourism and the Brexit environment April 2013: letter from home office ministers of Austria, Germany, Netherlands, and UK we wish to develop, together with the Commission, a common understanding of how to fight fraud and systematic abuse in connection with the freedom of movement more effectively. The aim should be a common understanding of what concrete actions and violations of provisions, alongside marriages of convenience, represent fraud or systematic abuse. And we should also seek to interpret the Directive consistently in order to be able to take effective sanctions against fraud and the abuse of the right to move freely within the Europe- an Union. The sanctions to be discussed in this context include expulsion and bans on re- entry for appropriate periods At the same time we need practical measures to address the pressures placed on our social welfare systems. Arrangements at national or EU level that allow those who have only recently arrived in a Member State and have never been employed or paid taxes there to claim the same social security benefits as that Member State s own citizens are an affront to common sense and ought to be reviewed urgently We call upon the Member States of origin to permanently improve the local living conditions of those concerned. We also call upon them to make sure that the EU funds which have already been set aside for these purposes are actually used to benefit those concerned We call on the Commission to take note of the recent developments as regards the misuse of the right to move freely within the EU, and the legitimate concerns of the citizens in the receiving states. We also call upon the Commission to counteract this development and to draw up proposals swiftly which can be submitted to the Member States for further consultations

54 4. Social tourism and the Brexit environment June 2013: Council meeting response: June 2013: All member states agreed that the free movement of persons was a core value of the European Union. The Council invited the Commission to look at the implementation of free- movement rules, including guidance on fighting abuse of these rules October 2013: Commission- commissioned report published Evidence challenged idea that social tourism was, or likely to become, a significant burden on Member States (A fact finding analysis on the impact on the Member States' social security systems of the entitlements of non- active intra- EU migrants to special non- contributory cash benefits and healthcare granted on the basis of residence ) Similarly: e.g. OECD work; UK s own Balance of Competences Review January 2014: Finland, Norway, Sweden: the only actual problem is the widespread belief that EU migrants are a burden. Prejudiced arguments have no place in political debate. EU migrants who work and contribute financially to building our societies should not be made scapegoats for loopholes in national benefit schemes (ministers letter to Financial Times, In times of crisis, we must safeguard free movement ) September 2014: Commission publishes Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non- EU nationals in the context of EU law on free movement of EU citizens FIDE reports (2014 Congress): welfare tourism discussed especially in citizenship reports from Denmark, Netherlands, and the UK; and Spain (viz. health tourism) November 2015: Dear Donald

55 4. Social tourism and the Brexit environment April 2015: Conservative Party Manifesto for UK General Election We have seen many more people from the EU coming to Britain than originally anticipated, principally because our economy has been growing so much more rapidly and creating more jobs than other EU countries We will negotiate new rules with the EU, so that people will have to be earning here for a number of years before they can claim benefits, including the tax credits that top up low wages. Instead of something- for- nothing, we will build a system based on the principle of something- for- something. We will then put these changes to the British people in a straight in- out referendum on our membership of the European Union by the end of 2017 Changes to welfare to cut EU migration will be an absolute requirement in the renegotiation. We have already banned housing benefit for EU jobseekers, and restricted other benefits, including Jobseeker's Allowance. We will insist that EU migrants who want to claim tax credits and child benefit must live here and contribute to our country for a minimum of four years. This will reduce the financial incentive for lower- paid, lower- skilled workers to come to Britain. We will introduce a new residency requirement for social housing, so that EU migrants cannot even be considered for a council house unless they have been living in an area for at least four years. If an EU migrant s child is living abroad, then they should receive no child benefit or child tax credit, no matter how long they have worked in the UK and no matter how much tax they have paid. To reduce the numbers of EU migrants coming to Britain, we will end the ability of EU jobseekers to claim any job- seeking benefits at all. And if jobseekers have not found a job within six months, they will be required to leave

56 4. Social tourism and the Brexit environment

57 5. Brexit: legal impact judicial? Case C- 308/14 Commission v UK (judgment of 14 June 2016) Lawful residence per Directive 2004/38 applies notwithstanding habitual residence per Regulation 883/2004 the need to protect the finances of the host Member State justifies in principle the possibility of checking whether residence is lawful when a social benefit is granted in particular to persons from other Member States who are not economically active, as such grant could have consequences for the overall level of assistance which may be accorded by that State (para. 80) the Commission, which has the task of proving the existence of the alleged infringement and of providing the Court with the evidence necessary for it to determine whether the infringement is made out has not provided evidence or arguments showing that such checking does not satisfy the conditions of proportionality, that it is not appropriate for securing the attainment of the objective of protecting public finances or that it goes beyond what is necessary to attain that objective (para. 85)

58 5. Brexit: legal impact judicial? Pending case: Case C- 442/16 Gusa (CoA, Ireland) Does an EU citizen who (1) is a national of another Member State; (2) has lawfully resided in and worked as a self employed person in a host Member State for approximately four years; (3) has ceased his work or economic activity by reason of absence of work and (4) has registered as a jobseeker with the relevant employment office retain the status of self employed person pursuant to Article 7(1)(a) whether pursuant to Article 7(3)(b) of Directive 2004/38/EC1 or otherwise. If not, does he retain the right to reside in the host Member State not having satisfied the criteria in Article 7(1) (b) or (c) of Directive 2004/38/EC or is he only protected from expulsion pursuant to Article 14(4) (b) of Directive 2004/38/EC. Pending issue: Is there a role for the Charter?

59 5. Brexit: legal impact legislative? Decision from the February 2016 negotiations a proposal to amend Regulation (EC) No 883/2004 in order to give Member States, with regard to the exportation of child benefits to a Member State other than that where the worker resides, an option to index such benefits to the conditions of the Member State where the child resides. This should apply only to new claims made by EU workers in the host Member State. However, as from 1 January 2020, all Member States may extend indexation to existing claims to child benefits already exported by EU workers a proposal to amend Regulation (EU) No 492/2011 which will provide for an alert and safeguard mechanism that responds to situations of inflow of workers from other Member States of an exceptional magnitude over an extended period of time, including as a result of past policies following previous EU enlargements. A Member State would notify the Commission and the Council that such an exceptional situation exists on a scale that affects essential aspects of its social security system, including the primary purpose of its in- work benefits system, or which leads to difficulties which are serious and liable to persist in its employment market or are putting an excessive pressure on the proper functioning of its public services. On a proposal from the Commission after having examined the notification and the reasons stated therein, the Council could authorise the Member State concerned to restrict access to non- contributory in- work benefits to the extent necessary. The Council would authorise that Member State to limit the access of newly arriving EU workers to non- contributory in- work benefits for a total period of up to four years from the commencement of employment. The limitation should be graduated, from an initial complete exclusion but gradually increasing access to such benefits to take account of the growing connection of the worker with the labour market of the host Member State. The authorisation would have a limited duration and apply to EU workers newly arriving during a period of 7 years.

60 Access to Social Benefits: The Dutch Perspective Dr. Paul Minderhoud Presentation for Dutch seminar, 28 October 2016

61 Access Social Benefits Two important questions: When does an inactive Union citizen have sufficient resources in the Netherlands? What happens when an inactive EU citizen applies for a social assistance benefit in the Netherlands?

62 Introduction Access Social Benefits Article /38 implemented in article 8.11 Aliens Decree. No access to social assistance: article 24(2) 2004/38 implemented in article 11(2) Participation Act Article /38 implemented in article 8.17 Aliens Decree. Social assistance has no influence on right of residence Article /38 implemented in article 8.12 Aliens Decree. Inactive EU citizens under art. 7(1)(b) 2004/38 have to have sufficient resources. Article 8.16 Aliens Decree: An appeal on social assistance does not lead automatically to the termination of the right of residence for EU citizens who derive this right from article 7(1)(b) 2004/38

63 Sufficient resources Access Social Benefits Article 8(4) Directive 2004/38 prohibits Member States from laying down a fixed amount to be regarded as sufficient resources, either directly or indirectly, below which the right of residence can be automatically refused. The authorities of the Member States must take into account the personal situation of the individual concerned. The IND applies a fixed amount at the level of a social assistance benefit as sufficient resources in any case (Art. 8.12(3) Aliens Decree). No evidence of accepting lower threshold in practice.

64 Access Social Benefits Sufficient resources: Dutch case law Two Romanian citizens relying on the income of their father and partner. (ECLI: NL:RBSGR:2009:BK3936) German minor. Mother received a monthly alimony allowance of 600 Mother lived already two years on alimony allowance without applying for social assistance (ECLI:RBSGR:2011:BV1155) A bank declaration of 8000 is enough for Moroccan woman to stay as a family member with her Spanish children. Financial help of sisters as well as alimony paid by Spanish former husband for children has to be taken into account (ECLI:NL:RBDHA:2014:11638) German minor. Financial means supported by Turkish father, who received donation by Islamic foundation of 800 (ECLI: NL:RVS:2013:1068) But: Polish citizen. Vagabond. Shoplifter. No right of residence under art. 7(1)(b) Directive 2004/38, despite the fact he never asked for social assistance (ECLI:NL:RBDHA:2016:6623)

65 Inactive EU citizen applies for social benefit Access Social Benefits Sliding scale about when a demand on social assistance results in the termination of the EU citizen s lawful residence by the immigration authorities (IND) Aliens Act Implementation Guidelines (Vc B 10/2.3) Each application for social assistance during the first two years of residence is considered unreasonable and will, in principle, result in termination of residence. But the IND will assess the appropriateness while considering the following circumstances of each case: the reason for the inability to make a living, its temporary or permanent nature, ties with the country of origin, family situation, medical situation, age, other applications for (social) services, the extent of previously paid social security contributions, the level of integration and the expectation for future social assistance needs. The longer an EU citizen is staying in the Netherland, the longer he can ask for social assistance without losing his right of residence

66 Problem of competence Access Social Benefits Municipalities which deal with issuing social assistance benefits to EU citizens decide directly that application of the benefit will lead to the loss of a right of residence and do not provide any social assistance at all. Not the municipality which provides the social assistance benefit, but the immigration authorities (IND) are the competent authority to decide on the legality of residence. Municipalities have to assume the lawfulness of the residence as long as the immigration authorities have not taken a decision on this lawfulness on the basis the EU citizen receives a social assistance benefit. (CRvB 18 March 2013, JV 2013/160 and CRvB 20 January, USZ 2015/93 m. nt. Minderhoud) Policy rules municipality of Amsterdam: The granting of a social assistance benefit to a EU citizen who resides between 3 months and 5 years has to be reported to the IND. The moment the IND decides to withdraw the right of residence the municipality stops the social assistance benefit.

67 Dutch case law Access Social Benefits IND used Dano reasoning regarding inactive EU citizen who asked for social assistance but who had never searched for work. No right of residence (District Court The Hague 1 September 2015; unpublished) Also use of Dano reasoning. Never right of residence because Bulgarian citizen was unemployable because she did not speak any Dutch (ECLI:NL:RBDHA:2016:3075) Dutch citizen with Italian partner. Italian partner does not get social assistance because he is jobseeker. Alimanovic situation. But Italian partner does count as housemate for determination of cost sharing norm. Dutch citizen gets 50% and not 70% (as if being single)(ecli:nl:rbdha:2016:4023)

68 Dutch case law Access Social Benefits Withdrawal right of residence of French woman on basis of lack of resources. No social assistance herself, but considered to live indirectly on the social assistance benefit of former husband, which was only based on single standard of 70%. (ECLI:RBDHA:2016:4917) In breach of case law CJEU that origin of resources is not important for the right of residence (Singh 16 July 2015 C- 218/14 and Alokpa 10 October 2013 C-86/12)?

69 Three more remarks Access Social Benefits Influence of the European Convention on Social and Medical Assistance Bill to introduce a prior systematic assessment of right of residence Introduction of a language requirement to receive social assistance

70 Access Social Benefits Influence of the European Convention on Social and Medical Assistance This Council of Europe Convention from 1953 gives lawfully residing citizens from contracting parties a right to social assistance. The government wanted to avoid that EU citizens would try to use the equal treatment clause of the ECSMA as an escape Forgotten to notify this reservation to the Secretary General of the Council of Europe, as requested by Article 16(b) of the ECSMA In February 2016 reservation by note verbale (oral notice). Is this enough?

71 Bill to introduce a prior systematic assessment of right of residence Access Social Benefits Private Bill VVD Member of Parliament Azmani Decision on application for social assistance by both Union citizens and TCN suspended until IND has provide an opinion on consequences for right of residence? Possible in light of Directive 2004/38?

72 Access Social Benefits Introduction of a language requirement to receive social assistance Applicants and recipients of social assistance required to demonstrate certain level of Dutch language proficiency. Applies to everyone. But exemption for recipients having received 8 years of education in the Netherlands. Compulsory education system of 8 years since 1950 In breach with art. 18(1) TFEU, 21 Charter and 24 Directive 2004/38?

73 Question Access Social Benefits If a Union citizen who has resided legally for a continuous period of five years in the host Member State asks for a declaration on the basis of Article 9(2) Aliens Act confirming that he has acquired a right of permanent residence and he has never asked for social assistance. Does the IND has to accept automatically that he has fulfilled the criteria of having sufficient resources during these five years or does the EU citizen has to prove the existence of sufficient resources? Can the IND go back for examining the full five years or only for less?

74 Recent developments in the field of free movement of workers at EU level FreSsco Seminar Leiden (NL), 28 October 2016 Radek CASTA Directorate-General for Employment, Social Affairs and Inclusion Unit D1 Free movement of workers, EURES

75 Overview Transposition of Directive 2014/54 (Enforcement of Free Movement of Workers) Implementation of Regulation 2016/589 (New EURES Regulation) Review of Directive 96/71 (Posting of Workers) Transposition of Directive 2014/67 (Enforcement Posting of Workers) Implementation of Decision on Undeclared Work platform 2016/344 Miscellaneous

76 Better enforcement of rights Practice shows that it is difficult for citizens to enforce their rights at national level Union workers still experience discrimination and obstacles Directive 2014/54 aims to facilitate the exercise of rights on Union workers and members of their families in the context of the freedom of movement for workers Does not create new rights for mobile workers

77 Transposition (10/10/2016)

78 Implementation Infringement procedures started Future steps at EU level Making available list of contact points Ensuring access to information Promoting cooperation of the bodies

79 EURES EURES (European Employment Services) aims at facilitating and promoting the freedom of movement for workers within the EU notably by exchanging information on employment opportunities It is a cooperation network within the EU 28 countries plus Switzerland, Iceland, Liechtenstein and Norway European job mobility portal New EURES regulation 2016/589

80 Revision of Posting of Workers Directive Why revising the Directive? social dumping has no place in EU the same work at the same place should be remunerated in the same manner The key change - remuneration rules Yellow card 'raised' by 11 national parliaments Commission reply no subsidiarity and proportionality problem

81 Enforcement of PWD The Enforcement Directive 2014/67: increases the awareness of posted workers and companies about their rights and obligations improves cooperation between national authorities in charge of posting defines Member States' responsibilities to verify compliance with the rules on posting of workers ensures the effective application and collection of administrative penalties and fines across the Member States if the requirements of EU law on posting are not respected

82 Transposition (10/10/2016)

83 European platform on undeclared work Decision 2016/344 does not establish 'European labour inspectorate' Objectives: Contribute to more effective Union and national actions incl. better enforcement of law Enhancing cooperation between different relevant authorities and other actors Improving Member States' authorities and actors' capacity to tackle cross-border aspects of UDW Increasing public awareness

84 Work programme Cooperation and joint action - tools for labour inspectorates -facilitating crossborder cooperation - support capacity building Mutual learning - learning activities - information exchange Increasing Knowledge - facts, figures, concepts - policy approaches

85 Miscellaneous No new legislative proposals envisaged Focus on implementation Switzerland removed work permits since 1 June 2016 (BG, RO)

86 Pending cases C-401/15 403/15 Depesme and Kerrou C-238/15 Verruga C-420/15 Saliceti C-496/15 Eschenbrenner C-566/15 Erzberger C-419/16 Simma Federspiel

87 Thank you for your attention! More information: atid= tm

88 The Role of the EU Legislature Nicolas Rennuy FreSsco / University of York

89 Mind the gap? Home MS Host MS

90 Bridging / narrowing the gap in social protection? Delayed transition Up to 5 years Gradual transition Pro rata temporis

91 Premises Burden Integration Benefit

92 Integration-protection nexus Integration is a function of time Social protection should be a function of time?

93 Options affecting the host Member State

94 Home MS

95 Home MS Host MS Up to 5 years

96 Options affecting the home Member State

97 Home MS Host MS

98 Home Member State Against export: Present social link Function of special non-contributory cash benefits Present standards and costs of living in State of consumption Benefit closely linked to the socio-economic environment Fit with national law Coherence with similar benefits

99 Home Member State Fraud and error Job-seeking Means and income Family circumstances Conjunctural macroeconomic effects Political appetite

100 Home Member State For export: Function of special non-contributory cash benefits Objectives of the EU EU shall combat social exclusion and discrimination, and shall promote social justice and protection. It shall take into account the guarantee of adequate social protection, the fight against social exclusion EU citizenship

101 Home Member State Integration-protection nexus Past, present, future Current practice

102 Status quo Home MS Host MS

103 Delayed transition

104 Delayed transition Integration-protection nexus Prioritising past connections Potentially more realistic Strength of past connections? Perceived vulnerability Financial burden Home MS

105 Delayed transition E.g. posting

106 Status quo Home MS Host MS

107 Gradual transition

108 Gradual transition Funded 21by

109 Gradual transition Integration-protection nexus More realistic Past, present, and future links Financial burden Shared Administrative burden Increased Double burden? Two sets of conditions?

110 Gradual transition Perceived vulnerability

111 Status quo

112 Pro rata temporis

113 Pro rata temporis Funded 26by