15 September 2015

The European Court of Justice has this morning ruled that EU member states are not obliged to allow unemployed migrants from other EU countries access to non-contributory social benefits, even if they have been previously employed for a short period. The case concerned the Alimanovic family – Swedish citizens living in Germany where the mother and eldest daughter briefly worked in several temporary jobs lasting less than a year but then claimed both unemployment benefits and “social allowances” for six months before these were cut off. This builds on the recent Dano case where the ECJ ruled that unemployed migrants who had not previously worked in another member state were not entitled to claim out-of-work benefits there.

From the UK perspective, this ruling is welcome because it makes it clear that unemployed EU migrants cannot access non-contributory benefits, and this may go some way towards reassuring the public that free movement does not entail unfettered access to welfare. As Professor Steve Peers notes on his blog, today’s ruling “makes it easier for Member States to justify refusal of benefits than might otherwise have been the case under prior case law.”

However, the central feature of David Cameron’s package of free movement reforms concerns restricting access to in-work benefits, a defining feature of the UK welfare model, for the first four years. This is outside the scope of today’s ruling, and securing political agreement to this among EU leaders remains challenging.

That said, today’s ruling further reinforces the principle that, in some circumstances, member states can treat EU migrants differently from their own nationals. Cameron can also argue that his proposed changes aim to extend the same principle that informed the ruling, namely that migrants need to have made a sufficient contribution before gaining access to taxpayer-funded benefits. As we have argued before, this is a particularly sensitive point in the UK given that unlike the majority of continental models, the welfare system is heavily geared towards non-contributory benefits.

Meanwhile, The Financial Times has chosen to go big on the fact that the ECJ ruling also restated the status quo on governments’ rights to remove EU jobseekers. The court reiterated that unsuccessful EU jobseekers cannot simply be expelled after six months, as long as they continue to have a ‘genuine chance’ of finding employment. As with the proposal to restrict in-work benefits for the first four years, today’s ruling simply restates the existing EU legislation. As we’ve noted previously, making either of these changes will require changes to EU law – a point Cameron also made from the start.

So, rather than being a setback, today’s ruling actually supports elements of the UK’s case for reform in this area and restates the political challenge that still needs to be overcome: further reforms will require amendments to secondary EU law or the treaties themselves. But we already knew that.