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Expert opinion: EU immigrants could wait five years to receive benefits

As 61% of Britons say they want EU immigrants to wait at least three years before receiving benefits, Alfonso Valero from Nottingham Law School examines why EU law agrees.

The much-awaited yearly British Social Attitudes survey has finally arrived, and with the latest elections marked by a significant UKIP-ism, the expectations were that the results would be marked with regards to immigration.

This article addresses only one of the points raised: the conviction of 61% of Britons that European immigrants should wait three years or more to receive benefits. And it seems that the European Union is on their side.

A recent report by the European Commission on the legal framework of free movement of goods provides very interesting reading in terms of the figures of the so called 'economically non-active' i.e. the unemployed, retired etc. For example, the number of EU citizens who are economically non-active and residing in a different EU Member State to their place of birth represent between 0.7% and 1% of the overall EU population. Of the total number of people receiving benefits in any given country, these EU citizens represent a maximum of 5%.

Legally, the Member States have a very powerful tool against benefits-tourism. In 2004 a Directive was introduced which permits the Member States to ban other EU citizens from accessing social assistance – benefits – until they have permanent residence. Permanent residence is achieved when a EU citizen has lived in the country for five continuous years. Not three years as the survey favours, but five. In fact, the underlining principle of the Directive is that free movement should not be to become a burden on the social assistance.

There is a twist to this, however, and it may prove difficult to implement. It came from the European Court of Justice in 1988. While it is perfectly possible to demand proof of permanent residence for someone to access benefits, this requirement should be asked of everyone, not only non-nationals. More bluntly, it is not acceptable to ask for proof of permanent residence from those, for example, with a foreign accent, but not require the same of those who appear to be nationals. This is so there is no discrimination on the basis of nationality.

In reality, in the context of a very mobile European society, it is not possible to automatically assume that a person is a national residing in their own country, so conversely one cannot assume the opposite with non-nationals.

The slightly problematic point will be accreditation of permanent residence since, in principle, this should be a card issued by the Home Office of the respective country. The benefit claimants may feel somehow uneasy about being required to provide permanent residence card of their own country, but this is not necessarily new in terms of requirements for new applicants.

So while this is a current political hot topic, it's actually nothing new when it comes to EU law.

Alfonso Valero
Nottingham Law School Senior Lecturer and EU law expert

Expert opinion: EU immigrants could wait five years to receive benefits

Published on 23 June 2014
  • Category: Press office; Nottingham Law School

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