Dr Gunnar Beck considers the possible impact the negotiations around the proposed new settlement for the UK within the EU could have for in-work benefits paid to EU migrant workers.

The Tusk proposal would allow Member States to limit child benefits exported by the migrant worker from his host to his home country, to an amount index-linked to the standard of living of the country in which the child resides. The proposed temporary emergency brake on the payment is fully compatible and does not require changes to the existing EU Treaties.

The Tusk proposal, if implemented, would not go beyond the existing treaty public policy exception to the equal treatment principle, which is recognised by the EU Treaties and which has been applied and upheld by the CJEU. Specific powers, such as the entitlement to certain in-work benefits, are governed by secondary legislation and the result of the specific decisions of the CJEU.

The proposed ’emergency brake’ does not amend these specific powers, but merely provides for an exceptional and, in all probability, time-limited specific national derogation from the general principle of equal treatment. Under the Tusk proposal the adoption of such measures would be recognised in secondary EU legislation. That would be the only potential change to the current state of EU legislation.

The proposed time-limited derogation would allow the UK to restrict certain in-work benefits to newly arriving EU migrant workers, but any such restriction would not apply to workers already resident in Britain.

In order to activate the welfare “brake” the European parliament needs to adopt the legislation, the UK needs to apply to use it, the Commission and European Council need to agree, (it will require UK domestic implementation and new IT systems) it will be limited to an individual for 4 years, will be phased out as soon as it is introduced and the whole policy will be operable for only 7 years. Also in this bucket is a small measure on the exportation of child benefit at a lower rate indexed to the GDP of the receiving state.

Finally, it is worth noting that even if, under the Tusk proposal, a Member State availed itself of the derogation to the general equal treatment principle, the national measures adopted may still be challenged in the national courts or, ultimately, the CJEU.

If the ’emergency brake’ on benefits payments were adopted as envisaged under the Tusk proposal, this is likely to increase member states’ chances of successfully defending such actions. However, the CJEU will continue to scrutinise national restrictions on the operation of the equal treatment principle extremely carefully.

In his 2015 general election manifesto, David Cameron promised to ‘control immigration from the EU by reforming welfare rules’. The evidence suggests that EU citizens overwhelmingly come to the UK to find work, and not to claim benefits. Most EU citizens currently working in Britain will therefore not be affected by any change to existing child benefits rules.

On a practical level, the ’emergency brake’ on in-work benefits payments proposed, would, if implemented in their current form, significantly complicate the legal regime governing welfare payments to migrant workers in the UK. The regime would be difficult to administer as it will often be impossible to establish when, precisely, a migrant worker arrived in the UK and if previous visits and periods of residence should be disregarded or not.

It is foreseeable that any changes to be implemented under, or in the wake of, the Tusk proposal will complicate, and not simplify, the existing rules for payments of in-work benefits to EU migrant workers.

Going forward, it’s fair to say that the proposal falls far short of David Cameron’s manifesto pledges. However, as the referendum campaign unfolds, the general debate will gradually shift to a straight in/out contest and Mr Cameron’s reform pledges are likely to recede into the background.

The full version of this article, written by Barbara Bergin during her interview with Dr. Gunnar Beck, is available at the Lexis PSL website.

Disclaimer: The material contained in this article is for general information only, and is not intended as a substitute for professional advice. Readers should seek an appropriate professional for advice regarding their particular circumstances.
Contact Us
YDVISAS is a UK immigration law firm with their main office in central London. It is Level 3 OISC Registered and ISO 9001 accredited. The experienced team at YDVISAS is known for client focused service, honesty and their ‘In It To Win It’ approach. They consistently deliver results that exceed clients’ expectations by providing expert advice, regular communication with each client, and optimal, individualised results. For every area of individual and business immigration needs, YDVISAS has a proven track record of satisfied clients.