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