Dr Konstanze von Papp

In my recent contribution to the Northern Ireland Legal Quarterly, I argued that the EU should become more active in the social policy field. This will be a controversial argument, since EU powers are limited; and it is the Member States who are responsible for the social welfare of people in their respective territories. And why would we give even more competences to an increasingly powerful organisation? If anything, this is also the message that Brexit sends: no more powers for the EU; on the contrary, ‘take back control’. So why did I argue for even more EU action with particular regard to Brexit?

One of the key themes underlying the 2016 referendum was migration control. More specifically, a central fear was that migrants from other EU Member States would come to exploit the UK benefit system. There is no empirical evidence of any non-trivial ‘benefit tourism’, which is why the problem is a perceived one (a ‘ghost) more than a real one. The government’s Migration Advisory Committee has meanwhile published its final report on migration to the UK from the European Economic Area (EEA) – which comprises the EU plus Iceland, Liechtenstein and Norway. This provides further evidence for concluding that migrants from the EEA make a net contribution to the UK economy and budget. Unfortunately, it came too late for use in the debate about the sense or nonsense of ‘benefit tourism’ as an argument for Brexit.

But in a world of ‘fake news’, reference to evidence is no longer enough. Instead, researchers nowadays also have to deal with mere perceptions. And there is the perception that poor migrants will take away what national or local societies have accumulated in public wealth. This is by no means an EU-specific problem. The USA has been struggling with this question too. It arises in federal structures that are more closely knitted together in the sense that people belong to one part and the overall whole at the same time (as is the case in the USA and the EU, which has its own citizenship). To be sure, there are still important differences between a US and an EU citizen: for example, the former belongs to the US by being born in the US, while the latter belongs to the EU only if he or she is a citizen of an EU Member State. However, the case law in both the USA and the EU shares some crucial features when it comes to freedom of movement (in the USA referred to as ‘right to travel’). In short, this can be restricted, but care needs to be taken that such restrictions are reasonable and do not aim at preventing poor people from travelling.

The comparison with the USA shows that there is a link between freedom of movement and social rights in the host society: if there is no social safety net at all, people might not exercise their right to travel and look for a job elsewhere. Nevertheless, this needs to be balanced against the host society’s interest in protecting its public finances from unlimited exposure.

EU law already attempts such a balance: the Citizenship Directive (Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, Official Journal 2004 L158/77) differentiates between migrants who have just arrived, migrants who have been in the host state for over three months, and migrants who have been living lawfully in the host state for over five years. The first are normally not entitled, under EU law, to social assistance. Those who have been living in another Member State for between three months and five years still have limited rights, under EU law, to social assistance (unless they are or have been in work).

However, I suggested more EU engagement because these distinctions alone do not always work in practice: balancing the interests of migrants and national societies is bound to be difficult. This is especially true when Member States may be exposed to claims for financial assistance from people who currently do not work or who are claiming benefits for non-resident family members. So it is unsurprising that the Court of Justice of the European Union at times went too far in one or the other direction in determining who deserves social protection and who does not. This would be tricky for any court. The specific problem for an EU court is that it is here effectively deciding claims the direct financial consequences of which will be felt not by the EU, but by the Member States. So even though the EU has very limited powers in the field of social policy, it can quite heavily interfere with social policies of the Member States.

This is where I argue that social protection should be addressed more openly as an EU issue. The legal mechanism behind some of the most controversial case law is the ‘fundamental status’ of an EU citizen. European identity-building may have been put in jeopardy following Brexit. However, at the same time it has increased solidarity amongst pro-European people. This is evidenced by the emergence of new interest groups such as ‘the3million’ (EU citizens in the UK), and ‘British in Europe’ (British expats in other EU countries), and pro-EU activist engagements, for example by as many as 700,000 people taking part in the ‘People’s Vote’ march of 20 October 2018 in London.

Solidarity might increase if there were an EU minimum social standard that Member States could top up for their own nationals when compared to new arrivals from other Member States. The latter would still be covered by the suggested EU minimum level of social entitlement. Generally speaking, this would be the same in all Member States. It could provide, in abstract terms, for basic claims to food, shelter, clothes, health coverage etc. The amount necessary to finance this might then vary from one Member State to another, depending on effective purchasing power. Such an EU minimum social standard would have several advantages, especially if it were financed partly or wholly by the EU. It would provide a broader social safety net, contribute to a more positive image of the EU, and put an end to the myth of ‘benefit tourism’.