The Ups and Downs of Dual Citizenship – the CJEU on Dual Turkish/EU citizens and social rights

Professors: Elspeth Guild, Queen Mary University of London; Kees Groenendijk, Radboud University; and Steve Peers, University of Essex

In recent years, an increasing number of Turkish citizens residing in the EU have become dual citizens of Turkey and an EU Member State. Like other dual citizens of a Member State and a non-Member State, they can invoke EU free movement law to move and reside in another Member State (see the CJEU’s Micheletti judgment). But as a general rule, EU free movement law will not confer rights in their home Member State. So in that case, can they still rely upon their Turkish citizenship to claim rights under the EU/Turkey association agreement?

Back in 2012, in its judgment in Kahveci and Inan, the CJEU determined that dual Turkish/Dutch nationals were entitled to rely on their Turkish citizenship to enjoy the benefits of the EU/Turkey association agreement as regards family reunification and thus escape the stricter national legislation for own nationals’ family members. So until the recent decision earlier this month in Demirci, it looked as if Turkish citizens with a second passport from a Member State were more or less free to choose which one to rely on in order to benefit from EU law. But the Demirci judgment changes the rules slightly and provides a more elaborated legal reasoning to when dual nationals of Turkey and a Member State may use one or other of their citizenship.

The finding is rather ominous so we will start some background on the facts of the case and conclude with a rather optimistic analysis where we conclude that dual nationality is still a strong source of rights in EU law and that this judgment is perhaps the exception.

The Facts:

Mr Demirci and his fellow applicants are all former Turkish workers who had worked in the Netherlands for many years fulfilling the conditions of the secondary legislation of the EU/Turkey Association Agreement, Decision 1/80 of the EU/Turkey Association Council, which regulates aspects of the immigration status of Turkish workers and their family members. They had all naturalised as Dutch nationals but kept their Turkish citizenship. They all became disabled and incapacitated for work and thus permanently left the labour force. They received a Dutch social benefit designed to provide income for the incapacitated. But this benefit is rather low so they applied for a top up benefit to bring their income closer to that of the minimum wage. They were all awarded the top up benefit.

Then a series of things happened. The men retired with their families to Turkey. The Dutch Government began to change the rules on the top up benefit to exclude anyone not resident in the Netherlands (or the EU). Mr Demirci and his colleagues first had their top up benefit reduced then it was cut off altogether on the basis that they no longer lived in the Netherlands (or EU). They appealed, relying on their Turkish nationality, on the basis that this treatment was contrary to the EU/Turkey Association Agreement measure on social security – Association Council Decision 3/80. The argument went that the Dutch authorities may be able to cut off the top up benefit to their own nationals living outside the EU as this is a matter wholly internal to one Member State. But they cannot cut off the top up benefit to Turkish nationals who have fulfilled the conditions as workers in a Member State under Decision 1/80 as this is a matter of EU law (which does not permit such an act – Article 6(1) of Decision 3/80 protects Turkish workers who retire to Turkey as regards receipt of social benefits). Several years ago, the CJEU ruled in Akdas that such rules infringed Decision 3/80 as regards Turkish nationals who returned to Turkey. But could a dual citizen of Turkey and a Member State rely on that judgment, as a Turkish citizen – or would he or she be prevented from doing so, as a national of that Member State?  

The reasoning

The CJEU bluntly tells Mr Demirci and his colleagues that they cannot rely on Decision 3/80 to object to the residence requirement imposed by the Dutch authorities (para 52). This is because, according to the Court, the objectives of the Decision and the EU/Turkey regime is to ensure the progressive integration of Turkish workers into the territory of the host Member State. The social security provisions consolidate that objective.

The Court provides two main reasons for this position. First, because Mr Demirci and his colleagues had acquired Dutch nationality they are in a particular situation as regards the Agreement. Citizenship is ‘the most accomplished level of integration’ of a person into the host state (para 54). This new citizenship means that the former Turkish worker can now enter and reside freely in the Netherlands or indeed any other EU Member State where he or she might wish to go. Conversely, in Kahveci & Inan the Court did not accept the argument of the Dutch government that naturalisation is the pinnacle of integration. In that case AG Sharpston argued that naturalisation may be an indication that an immigrant is on his path to integration, but that is not the same as saying that he has become completely integrated. .

But as Turkish nationals, Mr Demirci and his friends could only live in Turkey or their host Member State (the Netherlands) and so they have no free movement rights. Further as such, they only benefit from certain rights in the host Member State. So, says the Court, for the purposes of paying them a benefit, it is reasonable for the national authorities to make this subject to the same rules as apply to all other Dutch nationals (para 57).   

Secondly, dual Turkish/Dutch nationals would be placed in a better position than other EU citizens if they were allowed to have the top up benefit even though they did not fulfil the residential requirement (para 58). The right to export to Turkey social benefits in Decision 3/80, according to the Court, is a sort of compensation for the fact that Turkish nationals will no longer be able to return to and live in the host Member State. As the CJEU held in Bozkurt, a Turkish national ceases to be a protected person under Decision 1/80 if he or she becomes totally and permanently incapacitated for work (para 64). So there is a justification for applying different rules to those who are exclusively Turkish nationals as they have a much less secure residence status in the host Member State and no free movement rights in EU law. They therefore need the extra protection of the export right. For dual Turkish/Dutch nationals, they can always move back to the EU and fulfil the residential requirements for the top up benefit (even if they would rather not) (para 65).

 Distinguishing Kahveci & Inan

As mentioned above, this judgment takes a different approach from the CJEU’s own jurisprudence in Kahveci & Inan where it held that dual Turkish/Dutch nationals were allowed to rely on their Turkish nationality for the purposes of the EU/Turkey family reunification rules, in order to benefit from the expulsion of Turkish workers’ family members, which are more favourable than the rules applying to the expulsion of the family members of Dutch citizens in the Netherlands. However, the CJEU is anxious to protect its ruling in Kahveci and goes to some lengths to explain why the finding in Kahveci is consistent with that which they were giving in Demirci (para 66). The argument goes like this. Family reunification enhances integration, for Turkish workers who are already legally integrated into the host Member State. Article 7 of Decision 1/80 deepens the last integration of a Turkish worker by granting to that worker’s family members, after three years residence, access to the labour force (para 67). So, acquisition of national citizenship could not be used as a reason to deprive the worker of the benefit of family reunification in Decision 1/80 (para 68). By contrast with the facts in Demirci, the family’s integration would be hindered if it was denied on the basis of dual citizenship. Further in Kahvecithe person was seeking to benefit family members who are also Turkish nationals (para 70). Presumably this reasoning means that dual Turkish/EU citizens can also invoke the ‘standstill’ clause in the EU/Turkey association agreement, as interpreted last year in the CJEU’s Doganjudgment (discussed here), to avoid stricter rules for family reunion that apply to a Member State’s own nationals.

But in the case of Mr Demirci he can always go back to the Netherlands (or the EU) to satisfy the residential requirement to get the top up (para 69). Further all he and his colleagues wanted was a top up benefit for themselves (para 71). Finally, the CJEU considered that if Mr Demirci could rely on Decision 1/80 to have the top up benefit while not fulfilling the residential requirement, this would put them in a better situation than that of other citizens of the Union (and thus contravene Article 59 of the Additional Protocol to the EU/Turkey association agreement, which rules out Turkish citizens being better off than EU citizens).

The Court’s approach seems to be that there is something inherently wrong about letting Mr Demirci and his colleagues have their cake and eat it too. The arguments may not be the most compelling in the world but they show a clear judicial line. The CJEU will favour Turkish nationals living in the EU even if they have taken a second citizenship so long as this improves their long lasting integration. But they cannot rely on their Turkish citizenship after naturalization when what they seek is a financial benefit which is subject to a residential requirement for EU citizens (and which they do not fulfil because they have left the EU).

The Court appears to implicitly return somewhat to its reasoning in the Mesbahjudgement of 1999, where it held that the Moroccan mother of a Belgian-Moroccan worker who was living with her son in Belgium could not rely on the clause prohibiting discrimination on grounds on nationality in the EEC-Morocco Association Agreement to claim a disablement allowance that under Belgian law was only granted to Belgian nationals. The Court in Demirci, however, does explicitly point to the difference with Kahveci & Inan: “[in] the present case, by contrast, the respondents in the main proceedings are relying on the provisions of Decision 1/80 on their own behalf and in their own interest” (para 70). The Court leaves the door open for the Turkish spouse of a Turkish/Dutch (ex-) worker to rely on Decision 3/80, because the spouse, not having Dutch nationality, would be unable to return to the Netherlands.

 

Conclusions

The most important thing to remember about the Demirci decision is that it does notundermine the Court’s judgment in favour of dual rights for dual citizens in Kahveci & Inan. Yes, Turkish nationals can rely on the EU/Turkey association agreement family reunion rules even after they have naturalized in their host Member State, provided they are allowed to have dual nationality (it isn’t yet clear if they could invoke the EU’s own family reunion Directive). But they cannot rely on their non-EU citizenship after they leave the EU to get around a national residential requirement for the export of a social benefit if such a requirement applies to nationals of the host Member State.

Barnard & Peers: chapter 13, chapter 26

Photo credit: www.dw.de

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The nine labours of Cameron: Analysis of the plans to change EU free movement law

 

Steve Peers

As a penance for terrible sins committed in a moment of insanity, the mythical hero Hercules was required to perform ten great labours – extended to twelve after he cheated on two of them. Similarly, David Cameron has today pledged to insist upon major changes to the rules on free movement of EU citizens, failing which he will advocate Britain leaving the European Union. He clearly considers this necessary in light of the political sin of failing to meet his earlier promise to hugely reduce the amount of migration to the UK – which was, in hindsight, made in a moment of political madness.

Cameron’s commitments will not be easy to meet, for the reasons I set out below. I have broken them down into a list of specific commitments. I leave it to the classicists to match each of them to Hercules’ tasks.

If no changes to EU free movement law are made, the Prime Minister implicitly suggested that he would campaign for the UK to leave the EU. He did not state that he would insist upon all of his suggested amendments being agreed. So it is important to assess how realistic each of these proposals is.

A crucial factor in determining what is politically realistic is the nature of the current EU legal rules. Where Cameron’s proposals reflect the status quo, they are obviously realistic. Where they would require EU legislative change, they will require only a qualified majority of EU Member States in favour, plus a proposal from the Commission and agreement of the European Parliament. But where would need an EU Treaty amendment, they would have to be agreed by all Member States and ratified by each national parliament. That isn’t impossible, but it won’t be very easy; and it means that Cameron will more likely have to compromise on the proposals made today.

What about the other political parties? UKIP, of course, wants the UK to leave the EU. The Liberal Democrats generally support benefit reforms, and the Labour party’s policy, as announced recently is broadly consistent with Cameron’s proposals. The difference is that the Liberal Democrat and Labour parties do not (or not yet) support a referendum on continued UK membership of the EU.

As can be seen from the detailed comments below, most of Cameron’s specific proposals will require a Treaty amendment. I have elaborated on some of the points made below in my recent blog post on the legal limits on the amendments to EU free movement law.

Specific proposals

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

For EU citizens who are not workers, work-seekers or former workers, this confirms the status quo, as set out in the CJEU’s recent ‘benefits tourism’ judgment in Dano (see discussion of that judgment here).

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

For EU citizens who are workers (as defined by the Treaties and CJEU interpretation) or former workers (as defined by EU legislation, and the CJEU interpretation of the Treaties), there is a right to equal treatment as discussed in my prior blog post.  So this change would require a Treaty amendment.

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

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

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

Currently EU citizens can bring with them their spouse or partner, the children of both (or either) who are under 21 or dependent, and the dependent parents of either. (As an exception, students can’t bring their parents with them – but it’s rather doubtful that many students would want to do that if they could). This applies regardless of whether the family members are EU citizens or not. In 2003, in the judgment in Akrich, the CJEU ruled that Member States could insist that non-EU family members had previously been lawfully resident in the Member State concerned (previously no such rule appeared to exist). But in 2008, in Metock, the CJEU overturned this ruling and said that a prior legal residence requirement was not allowed.

This rule could possibly be overturned by EU legislative amendment, but it is possible that the CJEU would find that for those EU citizens whose rights are based on the Treaties (workers, job-seekers, former workers, self-employed persons, students), such a restriction was a deterrent to free movement, so a Treaty amendment might be needed.  

In fact, Cameron’s speech appeared to suggest that all non-EU family members of all EU citizens would have to be subject to the same restrictive income and language requirements that apply to UK citizens who seek to marry non-EU citizens. This would clearly deter free movement of those EU citizens who have non-EU family members, and would surely require not just a legislative amendment but a Treaty change.  These changes would therefore probably restrict the possibility of UK citizens to obtain family reunion by going to another Member State to be with their family and then returning, ie the so-called Surinder Singh route.

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

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

For those convicted of fraud, they would arguably have been expelled on grounds of public policy, public security and public health. In that case, entry bans are allowed, but EU law does not set absolute upper limits on the duration of those bans. Instead, Article 32 of the citizens’ Directive merely sets out a right to challenge them. So in principle longer and stricter entry bans for fraudsters are possible, as a matter of national law, under the status quo. However, if Cameron wants to make sure that they cannot be challenged successfully in individual cases as a disproportionate limit on free movement rights, a legislative amendment or Treaty amendmentmight be necessary.

5. Stronger measures to deport EU criminals

Currently, as well as possible expulsion for not meeting the economic criteria for free movement, EU citizens can be deported if they are a ‘sufficiently serious threat’ to public policy or public security. Expulsion decisions must be made on a case-by-case basis and a criminal conviction cannot automatically lead to expulsion. In principle, there is a higher degree of protection against expulsion for those who have got permanent residence status (due to living in a Member State for more than five years) or who have lived in that Member State for more than ten years. However, the CJEU’s case law has somewhat undercut that extra protection in practice.

Any changes to the rules on deportation after a criminal conviction would require at the very least a legislative amendment. It is likely that they would also require a Treaty amendment, since the protection against removal on grounds of public policy, public security or public health is set out in the Treaties for EU migrant workers (Article 45(3) TFEU).

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

The details of each new Member State’s adaptation to EU law are set out in each accession treaty, which has to be approved by each Member State. The UK would be in a position to veto any future accession treaties unless longer waiting periods for free movement are included. So this is entirely consistent with the status quo.

7. EU citizens to have a job offer before entry

EU legislation says that EU citizens can stay for three months as long as they have a valid passport and do not apply for social assistance. After that point, they can stay if they are workers, self-employed persons, students or otherwise have sufficient funds. Also they can stay if they are a job-seeker, subject to the proviso (described above) that they have a genuine chance of getting work. So this proposal would require a legislative amendment.

In fact, it would also require a Treaty amendment, since the CJEU has said (in Antonissen) that the Treaty right to free movement of workers also applies to job-seekers, giving them the right to enter and stay in a Member State to look for work.

If such an amendment were made, it would clearly be unfeasible in practice, since it is not realistic to check at the border or before getting on transport if all EU citizens have job offers, considering also that there are many other legal reasons for EU citizens to come to the UK (short-term visits, self-employment, for study, or self-sufficient stay).  

8. No taxpayer support for job-seekers

The EU legislation already rules out social assistance for job-seekers, so this reflects the status quo. However, the CJEU has said that job-seekers have a right to access benefits linked to labour market participation, if they have a link already with the labour market in question. While David Cameron suggested that the UK’s future Universal Credit would not fall within the scope of the CJEU’s case law, that would likely be challenged in practice. So a Treaty amendment is likely necessary as regards current rules, and possibly necessary as regards universal credit.

9. Payment of child benefit to children abroad

Non-payment of child benefit to children living in other Member States is arguably indirectly discriminatory, since it affects more non-UK nationals than UK nationals. Since the equal treatment of workers is guaranteed by the Treaties, a Treaty amendment would likely be necessary to put this change into effect as regards workers’ family members.

 

Barnard & Peers: chapter 13

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Amending EU free movement law: What are the legal limits?

Steve Peers

Much public debate in recent weeks has centred upon the possible amendment of EU rules on the free movement of people. In particular, the think-tank Open Europe and the UK Labour party have set out policies on this issue, and Prime Minister David Cameron is expected to make an announcement of his views soon. While most of the discussion focuses on the political and economic aspects of these proposals, there is also an important legal dimension to the debate, because EU law determines how easy (or difficult) it would be to put any potential changes into effect.

In particular, there are three principal ways to change the EU free movement rules: (a) by changing national law, while still remaining consistent with EU law; (b) by changing EU legislation; or (c) by amending the EU Treaties. The first course of action needs only (at most) a national parliamentary majority; the second course of action needs a Commission proposal and support from the European Parliament and a qualified majority in the Council; but the third route needs unanimous support from all 28 Member States’ governments, then ratification in national parliaments.

So it’s important to know which of these categories the proposed reforms fall into. For the reasons set out in this blog post, some of the proposals of Open Europe fall into the second category (EU legislative amendment). But contrary to their arguments, the most significant proposals made by Open Europe fall into the third category (Treaty amendment), making them much more difficult to accomplish than their authors suggest.

As for the Labour party proposals, they broadly reflect the Open Europe suggestion to impose a waiting period on access to in-work benefits for EU migrants. Finally, it’s obviously not possible to comment on David Cameron’s proposals for EU policy reform (which might go beyond EU free movement law) until he makes them. So this blog will return to the issue after his forthcoming speech.

This blog post is in three parts: an analysis of the proposals on cutting back benefits for workers, job-seekers and former workers;  an examination of the other proposals made by Open Europe; and my suggested text for proposed amendments to EU legislation to implement those Open Europe proposals which are (in my view) both desirable and legally feasible.  

Cutting back workers’ benefits

The central proposal of Open Europe today is that newly-arrived EU citizens should be denied equal treatment as regards out-of-work or in-work non-contributory benefits, social housing and apprenticeship schemes for a period of between one and five years, to be negotiated. This suggestion builds upon another recent Open Europe paperwhich suggests further details of changes to EU legislation on these issues. My comments are mainly directed at the latter paper, which sets out the legal reasoning underpinning today’s proposal. As noted already, the Labour party proposals reflect Open Europe's suggestions, and so the following comments equally apply to those proposals.

I won’t mince words: there’s a fundamental legal problem at the core of these proposals. The Open Europe paper suggests that both in-work and out-of-work benefits could be limited simply by amending EU legislation. This is true for those EU citizens who are not workers, and who have never looked for work or held work in the host Member State, as the CJEU has recently clarified in the ‘benefit tourism’ case of Dano (see discussion here). But look at the Court’s reasoning: it deferred to the wording of EU legislation in that case because the Treaty rules on the rights of EU citizens (Articles 20 and 21 TFEU) defer to the limitations on EU citizens’ rights ‘defined by the Treaties and the measures adopted thereunder’, and ‘laid down in the Treaties and in the measures adopted to give them effect’. Equally the Court referred to Article 18 TFEU, which provides for non-discrimination against EU citizens ‘[w]ithin the scope of application of the Treaties, without prejudice to any special provisions contained therein’.

For people like Ms. Dano, there are no Treaty rules which govern their legal situation, because she was not a worker, and was not a job-seeker or former worker either. Neither was she a self-employed person, service provider or student. Therefore the Court only looked at her position under EU free movement legislation.

But the vast majority of EU citizens in another Member State do fall within one of those other categories – most notably as workers, including job-seekers and former workers. The crucial point here is that all of those other categories of EU citizens have rights not just pursuant to EU legislation, but also pursuant to the Treaties. Indeed, that point is recognised in the very wording of Articles 18, 20 and 21 TFEU: Article 18 defers to the special rules on non-discrimination in the rest of the Treaty, while Articles 20 and 21 defer equally to the Treaties and secondary legislation. The intention of the Treaty drafters is perfectly clear.

So what does this mean for the position of workers? (I’ll concentrate on them, since they are the main focus of the Open Europe proposals). The specific Treaty provision regulating workers’ free movement is Article 45 TFEU, which first specifies that ‘Freedom of movement for workers shall be secured within the Union’. Article 45(2) further specifies that free movement entails the abolition of discrimination between EU workers as regards ‘employment, remuneration and other conditions of work and employment’. Article 46 TFEU then confers powers to adopt legislation ‘setting out the measures required to bring about freedom of movement for workers’. Article 48 TFEU sets out powers to adopt rules to coordinate social security for workers.

The wording of these Treaty articles doesn’t defer to the legislation in order to set out workers’ rights, and this has long been recognised by the Court of Justice. So free movement of workers (and the associated right to equal treatment) has long been recognised in CJEU jurisprudence as a directly effective Treaty right, precisely because it is not dependent on the adoption of further measures. This also means that the CJEU controls the definition of ‘worker’, and extends it to cover also those who are former workers or job-seekers.

Indeed, as recently as this summer, in the Saint-Prix case (discussed here), the CJEU expressly asserted that the definition of former workers (and therefore the access to benefits) as defined in EU legislation didn’t matter, since the Court would determine which former workers still qualified for access to benefits. So the Court ruled that female workers who were former workers at the time when they gave birth still had access to benefits (as long as they got work soon afterward), even though the legislation did not define them as former workers.

So unless the CJEU does a U-turn on this issue, there would be little point in trying to amend the legislation in order to require former workers to wait longer for benefits. At the moment, EU citizens retain worker status, and access to benefits, if they become involuntarily unemployed after working for more than one year in a Member State. If they become unemployed before that point, they retain worker status for a maximum of six months. There are also several other cases where they retain that status.

What about job-seekers who were not formerly employed in the host State? Well, there’s no need to amend EU legislation in order to refuse them some types of benefits, since the EU citizens’ Directive expressly makes clear that they are entitled to no equal treatment as regards ‘social assistance’ at all. However, the CJEU has said (in the Collinscase) that, pursuant to the Treaties, job-seekers cannot be refused equal treatment as regards benefits which are intended to facilitate access to employment. And in the Vatsourascase, it expressly distinguished this type of benefit from ‘social assistance’ benefits which job-seekers are not entitled to pursuant to the citizens’ Directive.

The CJEU will have a chance to clarify the position in the pending case of Alimanovic. It might possibly do a U-turn on this issue in its judgment on that case. If it doesn’t, then again, in order to cut back on such labour-market benefits for job-seekers, a Treaty amendment would be necessary.

Next, as regards workers, the key free movement rule, and the equal treatment right, are laid down in the Treaty itself. When ruling on workers’ equal treatment rights, the Court regularly refers to the Treaty rule and the relevant legislation, and both of these confer equal treatment as regards benefits: see the judgment in O’Flynn, for instance. Since the right to workers’ equal treatment is expressly set out in the Treaties, then removing in-work benefits for workers – the core of the Open Europe proposal – would be manifestly contrary to the Treaties, and would require a Treaty amendment.

Of course, a Treaty amendment is not impossible; it’s simply much more difficult than a legislative amendment. It would most likely take the form of a Protocol which sets out a derogation from the Treaty rules.

Other Open Europe proposals

The Open Europe paper suggests an amendment to EU legislation to specify that EU law cannot derogate from national powers as regards matters such as social assistance. It’s not possible for EU secondary legislation to limit EU powers as defined in the Treaties, but an amendment to EU secondary legislation could refer to such limits. This is my suggested amendment 1 below.

In the context of a waiting period for benefits, the Open Europe paper correctly mentions that the time period spent in detention in the home State for committing offences does not count for this purpose. This rule is set out in the case law, but it could also be added to EU legislation. This is suggested amendment 2 below.

Next, the Open Europe paper suggests a number of protections for national workers as regards unfair competition from other Member States. It is suggested here that the EU posted workers’ Directive provides such protection, but this isn’t always the case. So I suggest an amendment to that Directive in order to overturn the controversial CJEU judgment in Laval (amendment 3).

The specific suggested amendments relating to unfair recruitment standards, living wages et al can best be addressed by amendments to the specific Regulation on the free movement of workers. My suggestions to this end are set out in amendment 4.  

Finally, the Open Europe paper gets round to suggesting some protection for migrant EU workers in areas other than employment, on the grounds that the proposed three-year waiting period for equal treatment ‘might contribute to a sense of vulnerability on their part’. The report’s authors should win an award for their contribution to the great British art of understatement here. One could equally say that the Titanic’s collision with an iceberg might have contributed to a sense of dropping body temperature on the part of its passengers.

Open Europe's specific suggestion is to adopt EU legislation protecting EU migrant workers against discrimination on grounds of nationality as regards supply of goods and services. This is possibly superfluous in light of the non-discrimination rules in the Treaty. But to be on the safe side, I have suggested amendment 5, to the Regulation on migrant workers.

Finally, a number of specific statements in the Open Europe paper need correction or clarification. On page 3, there are more than two ‘important protections’ (for States) as regards exceptions from equal treatment for benefits. Nor is sickness insurance a requirement for all EU citizens, only those who are not workers or self-employed. The Brey judgment (text at note 6) has been effectively overturned by Dano, which was delivered after this paper was published. Equal treatment applies only to those EU citizens who are legally resident. Former workers are entitled to benefits not just in the cases referred to in note 9. On page 9, the CJEU has yet to rule whether Article 31 of the EU Charter of Fundamental Rights creates justiciable rights; this issue is the subject of the pending Fenollcase. It’s an overstatement to say that national law giving effect to Charter social rights is always protected by EU law, as the CJEU judgments in Laval, Viking Line and Alemo-Herronmake clear.

Proposed amendments

Amendment 1

Add a new Article 1(2) to the citizens’ Directive:

This Directive shall not affect Member States’ competence to define national rules on social assistance and social security (including pensions), public health, public education and employment policies, in accordance with the Treaties.

Amendment 2

Add a new sentence to Article 21 of the citizens’ Directive:

Periods spent in prison as the consequence of a conviction for a criminal offence shall not be taken into account.

Amendment 3

Add a new sentence to Article 2(10) of the posted workers’ directive:

In particular, equality of treatment as regards pay shall be assured as regards all collective agreements, whether or not they are covered by the definition set out in paragraph 8.  

Amendment 4

Regulation 492/2011 on the free movement of workers should be amended to add a new Section 1a, ‘Equal treatment of host State workers’, consisting of a new Article 6a:

Member States shall not permit recruitment of or advertising for employment to nationals of other Member States only.

A new sentence should be added to Article 7(1):

The principle of equal treatment in working conditions applies in particular to any rule relating to wages, including a minimum wage or living wage requirement in the host Member State, as well as any rules relating to health and safety.

A new Article 7(5) should be added:

In order to ensure a dignified standard of living for workers exercising free movement rights, Member States may prohibit bonded agreements or tied housing.

Amendment 5

A new Article 7(6) should be added to Regulation 492/2011:

Workers shall enjoy equal treatment without discrimination on grounds of nationality as regards access to and supply of goods and services which are available to the public.

*Note: This would be enforceable in the way that the Open Europe paper suggests, by means of the Directive on enforcement of migrant workers’ rights, adopted in 2014.

 

Barnard & Peers: chapter 13

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

Steve Peers

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

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

Expulsion of EU citizens

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

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

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

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

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

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

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

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

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

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

Entry bans for unemployed EU citizens 

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

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

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

Conclusions

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


Barnard & Peers: chapter 13, chapter 16

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Is the UK's restriction on EU workers' access to benefits legal - and if not, should it be?

Steve Peers

Today the UK government has announced a new threshold for determining whether an EU citizen from another Member State is actually a 'worker' or not, for the purposes of claiming benefits. Are these rules compatible with EU law on the free movement of workers? And if not, should EU law be changed so that they are?

According to the new UK rules, to obtain 'worker' status, citizens from other Member States will have to earn £150/week for at least three months. If they manage this, then they will have access to child benefit, child tax credit, job-seekers' allowance and housing benefit. If not, then they will not be automatically denied benefits; rather their position will be subject to a case-by-case analysis.

Is this a violation of EU law? In a series of cases dating from the 1980s, the Court of Justice of the European Union (CJEU) clarifed the meaning of 'worker' for the purposes of the EU Treaties, which provide for the free movement of workers. This case law clarified that a person must be considered to be a 'worker' even if he or she works part-time, as long as the work is 'genuine and effective' and not 'marginal or ancillary'. In particular, an EU citizen claiming top-up benefits might still be considered a 'worker' (Kempf). However, there is no hard-and-fast rule in this case law determining what it takes to be an EU worker.

At first sight, the new UK rules appear to set such a hard-and-fast rule, which conflicts with the case law of the CJEU. It is certain, in light of its prior case law, that the CJEU would hold that at least some people earning an average of less than £150/week for three months were workers. It is even more certain that the CJEU would condemn the rule if it requires the worker to earn more than that amount every week for that period, rather than an average - but it is not clear if the rule goes that far.

 However, the new British rule is not as strict as that. Instead, it appears to create (at most) a rebuttable presumption that the persons earning less than that amount are not workers. Its compatibility with the free movement of workers therefore depends largely on how it is actually applied to individual situations, which might in part depend on the policy guidance which will presumably be issued by the government to the civil servants who apply it. The crucial point should be how exactly the presumption (is that is what it will be) can be rebutted.

So the answer to the first question posed above is: It depends on how the law is applied in practice. That's not a very satisfactory answer, perhaps, but it is often the only honest answer to a legal question. Having said that, it might still be worth challenging the new rules for their compatibility with EU law, via the national courts and by means of complaints to the Commission, to obtain some further clarification of the EU definition of 'worker'.

Should the EU rules on benefits for EU citizens be changed?

This brings us to the second question: Should the rules be changed? Of course, this is a political question, but it has a legal context. Since the rules are closely related to the interpretation of the concept of 'worker', a term set out in the EU Treaties, it would take a treaty amendment to change them. Such a treaty amendment would need the approval of all 28 Member States (or perhaps 29, if Alex Salmond's dreams come true).

In the normal course of events, it is unlikely that all Member States would agree to a Treaty change that would negatively affect their citizens who have moved to other Member States and taken up low-paid work. However, it is just about conceivable that they would be willing to negotiate a limited clarification on workers' access to benefits in the context of a UK bid to renegotiate the terms of its UK membership. Perhaps this change could even apply across the board, to all Member States: it would probably be welcome in some other Member States, and it might even increase public support for further EU enlargement.

It might be argued that any restriction on the established rights of EU workers is unthinkable. But consider the alternative: if the UK were asking to renegotiate its EU membership, that would mean that a Conservative government had won a majority (or very close to a majority) in the 2015 UK general election. That government would be demanding a change in the UK's EU obligations, otherwise it would lead the UK out of the EU. And that would, of course, remove any rights for EU citizens at all in the UK - subject to whatever (doubtless more limited) rights were agreed as part of the UK's hypothetical future association agreement with the EU. Moreover, a modest restriction on the benefits which low-paid workers could receive would be much a less significant restriction on free movement rights than the demand of some critics of EU membership - that the UK should be able to set a quota on the numbers of EU citizens moving to the country. Could it be time to think the unthinkable?


Barnard & Peers: chapter 13

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