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Right to reside – Carry on as before?

Written by Nearly Legal, 21 September 2015

Following hard on the heels of J's excellent post on the Immigration Bill, we now have further discussion of the EU right to reside rules by the CJEU in Jobcenter Berlin Neukolln v Alimanovic Case C-67/14 (to which I might say, good luck landlords). To say that the EU right to reside rules are politically contested is of course a given; but what politicians don't seem to have cottoned on to is that they are also contested as a matter of law. I should say that I'm not discussing here the ambit of "special non-contributory cash benefits – on that point and for a discussion of all the issues in Alimanovic, readers are re-directed to Steve Peers' characteristically insightful discussion on the EUlawanalysis blog.

There is significant controversy over the scope and lawfulness of the right to reside rules contained in the Citizenship Directive (2004/38, Art 7). These rules provide that EU citizens have a conditional right to reside in another member state after three months and if they have resided there for less than five years (Art 7(1)). The condition is that the national is either a worker or a jobseeker or "have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State" (there are other categories which are not relevant for the moment). The category of "worker" is extended by Art 7(3) to include those who are temporarily unable to work as a result of illness or accident; are involuntarily unemployed after having been employed for more than one year and are registered as a jobseeker; or you can retain the status of worker for six months if you have been a worker for less than 12 months and are registered as a jobseeker; or you embark on vocational training. States are entitled not to confer any right to social assistance on persons other than "workers". I haven't got on to the extension of the right to family members but that is superfluous to this discussion. If you have no right to reside in the host member state, then that state can exercise its right to use an expulsion measure.

Now, without going in to unnecessary detail (and there is a lot of that), homelessness assistance and allocation of accommodation in the UK relies on the status of "worker" (that is, of course, a simplification – see Immigration (European Economic Area) Regulations 2006; Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006). All of this would be great and relatively easy to appreciate, if not quite understand, were it not for the CJEU's interventions. Let me just summarise four such interventions, the first two of which (on one view, ie mine) are logical and defensible, the second two of which appear to be problematic and flatly contradictory:

(a) There is the extension of the extension of right to reside to Zambrano carers (as to which, see Sanneh v SSWP [2015] EWCA Civ 49), which one can justifiably say (I think) constitutes a purposive reading of the Directive.

(b) The right to reside is extended to persons who are temporarily unable to work as a result of pregnancy and childbirth, even though formally they have lost their status as worker, because the classification of "worker" and the rights of workers of do not necessarily depend on the actual or continuing existence of an employment relationship. Thus, Art 7(3) is not exhaustive in its list of the extension of the category of worker: St Prix v SSWP C-507/12.

(c) Even where the person loses the status of worker, the question of whether that person is an unreasonable burden to a host member state's social assistance system requires an individual overall assessment "of the specific burden which granting that benefit would place on the national social assistance system as a whole, by reference to the personal circumstances characterising the individual situation of the person concerned": Pensionsversicherungsanstalt v Brey C-140/12. This is because of the narrow interpretation of the conditions in light of Arts 18 and 20 of the Treaty of the Functioning of the European Union (TFEU).

(d) A member state can refuse "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": Dano v Jobcenter Leipzig C-333/13, [78]. Provided that an assessment of the financial situation of each person is conducted to determine the unreasonable burden question, that is sufficient to comply.

The apparent contradiction between Brey and Dano was as to the nature and requirement of this individual assessment; and it might also be argued that the specific facts of Dano were against the precepts of the TFEU: "Although her ability to work is not in dispute, there is nothing to indicate that she has looked for a job" ([39]).

It was hoped that Alimanovic would resolve this contradiction. The Advocate General's opinion both recognised it and suggested a way around it ([87]-[111]), drawing a distinction between the legal response in three situations: that of the national of a Member State who moves to the territory of another Member State and stays there for less than three months, or for more than three months but without pursuing the aim of seeking employment there (situation 1 – Dano); that of the national of a Member State who moves to the territory of another Member State to seek employment there (situation 2 – Dano rationally extended to this situation); and that of the national of a Member State who has stayed in the territory of another Member State for more than three months and who has worked there (situation 3). Situation 3 is the problem case and reflects the facts in Alimanovic. The AG's view was that "the requirement of an individual examination actually concerns the application for social assistance and not the lawfulness of the residence" so that the assessment should "take into account, inter alia, not only the amount and regularity of the income received by the citizen of the Union, but also the period during which the benefit applied for is likely to be granted to them", and further "the demonstration of a real link with that State ought to prevent automatic exclusion from those benefits" ([105], [106], [107] respectively).

Now, let's just stop there for a moment. If the AG was right, then local housing authorities would be required to conduct this individual assessment in all cases where the applicant for homelessness assistance or an allocation was not a worker. Under the Immigration Bill, it is perfectly possible that private landlords and their agents would have been required to conduct that assessment (although others will have a better understanding of that mess than me).

The CJEU appears – and I mean "appears" because the way I read the judgment is that it is a little eliptical – to have decided differently on this point. First, they say that no Brey-type individual assessment is necessary in "circumstances such as those at issue" in this case. Secondly, they go on to say:

60 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.

61 By enabling those concerned to know, without any ambiguity, what their rights and obligations are, the criterion referred to both in Paragraph 7(1) of Book II, read in conjunction with Paragraph 2(3) of the Law on freedom of movement, and in Article 7(3)(c) of Directive 2004/38, namely a period of six months after the cessation of employment during which the right to social assistance is retained, is consequently such as to guarantee a significant level of legal certainty and transparency in the context of the award of social assistance by way of basic provision, while complying with the principle of proportionality.

62 Moreover, as regards the individual assessment for the purposes of making an overall appraisal of the burden which the grant of a specific benefit would place on the national system of social assistance at issue in the main proceedings as a whole, it must be observed that 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.

63 Having regard to all the foregoing considerations, the answer to the second question is that Article 24 of Directive 2004/38 and Article 4 of Regulation No 883/2004 must be interpreted as not precluding legislation of a Member State under which nationals of other Member States who are in a situation such as that referred to in Article 14(4)(b) of that directive are excluded from entitlement to certain 'special non-contributory cash benefits' within the meaning of Article 70(2) of Regulation No 883/2004, which also constitute 'social assistance' within the meaning of Article 24(2) of Directive 2004/38, although those benefits are granted to nationals of the Member State concerned who are in the same situation.

What this seems to say is that a member state can decide that a potential accumulation of claims for social assistance from outside that state can be a proportionate response such as to justify a general refusal so that an individual assessment is not necessary. If that interpretation is correct, then local housing authorities and private landlords/letting agents are saved that individual assessment and this particular attempt at cracking the Art 7 nut has been unsuccessful. There are implications for the Cameron re-negotiation, with which Steve Peers deals.

About the author: Nearly Legal is a specialist housing law website, run by solicitors and barristers practising in the field. Posts on Nearly Legal are just opinions, not legal advice

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