The Law Relating to Eligibility for Receiving Social Benefits - Essay Example

?European Union Law Introduction Nicolas, a Cypriot national has been denied of sustenance benefit by virtue a fictitious law enacted by the UK ly Relief of Poverty Act 2008 which says that foreign nationals are ineligible to receive social assistance. This is in clear violation of EC Treaty and Directive No 2004/38/EC. The relevant law relating to eligibility for receiving social benefits is discussed below. Advice to Nicolas has been rendered in the discussion and conclusion part of this memorandum. Relevant legal position. Free movement of workers within the European Union is governed by the following legislations. 1. Article 45 of the Treaty on the Functioning of the European Union (TEFU). 2. Regulation (EU) No. 492/2011 of 05.04.2011. 3. Regulation (EEC) No 1612/68 4. Council Regulations No 312/76 and 2434/92. 5. Article 38 (1) Directive No 2004/38/EC. 6. Directive 2004/38/EC of 29.04.2004 on the rights of citizens and their family members 7. Directive No 98/49/EC dt 29.06.1998 in regard to pension rights of workers and self-employed persons within the community.1 Article 45 of the TEFU along with secondary legislations and case law accord the fundamental rights for the EU citizens such as the right to seek job in another EU member state, right to get employed without a work permit, right to have residence therein for the purpose of employment and right to continue to stay in the member country after the employment has ceased and to be eligible for equal treatment with nationals of the member state in respect of employment rights, working conditions and other social and tax benefits. These rights may vary for self-employed, students and retired or economically non-active persons. The rights are subject to public security, public policy, health grounds and employment restrictions in the public sector.2 The wording of “workers” related to free movement in Directive 2004/38/ EC is somewhat misleading since the Directive is aimed at according right of free movement to “EU” citizens in general though the directive makes a distinction between economically active and non-active citizens. Thus, Directive 2004/38/ EC is applicable to all EU citizens who move to another member state (host state) other than their home state of which they are nationals. Thus, the union citizens can reside in a home state for three months without any formalities other than holding of a passport or an identity card subject to a more favourable treatment available to job-seekers as per the case law of the European Court of Justice 3 viz Levin v Staatssecretaris van Justitie 4 and Brian Francis Collins vs Secretary of State for Work and Pensions 5 However, the terminology of “worker” is ideally continued in view of special regulations related to work under the directive besides the advantages available to citizens who have worked or have been self-employed along with their family members in acquiring permanent residence even before the completion of five years of residence in the host state by virtue of Commission Regulation (EEC) No.125/170 of 29.06.1970 which confers right to workers to remain in the territory of a Member State pursuant to having been employed in that State and Council Directive 75/34/EEC of 17.12. 1974 conferring rights to citizens in a member state in the capacity of self-employed people. Thus, a worker entitled to free movement within the Union should be a national of one of the EU member states or that of Norway, Iceland and Lichtenstein enjoying certain privileges. The European Court of Justice has given a wide interpretation of the term “worker” to include part-time work6, trainees 7and remuneration in kind adding that the person should be carrying out an effective and genuine work as directed by another, to be considered as a worker. Besides, the concept of freedom of movement should not be interpreted in a restrictive manner.8 Further, the ECJ has held that the job-seeking citizens should not be expelled if they show evidence of search of employment and chances of getting jobs. There is no mention of time limit in this respect.9 Article 39 of Treaty Establishing the European Community (TEC)10 stipulates that the Community shall guarantee freedom of movement of workers within the community. And the freedom should not be subject to discrimination based on nationality as regards employment, remuneration and other conditions governing work and employment, among others. These are considered as basic rights of the citizens moving within the union for employment.11. Article 1 of the Council Regulation 1612/68 of 15.10.2008 states that a national of a member state shall have the right of gainful employment in another member state and be governed by the applicable rules and regulations relating to the national workers therein. It adds that no citizen of another member state shall be treated differently from national workers in respect of work and employment conditions, remuneration and dismissal and the unemployed shall be eligible for reinstatement or re-employment. They shall also be entitled to the same social and tax benefits as are applicable to national workers. Any agreement of employment to the contrary is not permissible (Article 7). Article 5 states that employment offices of a member state shall make available any assistance and accord priority to worker from another member state as may be applicable to its own nationals.12 Directive 2004/38/EC makes it mandatory for the host state to accord equal treatment to a national from another member state, same as available to nationals of the host state. In fact, the directive itself is the outcome of case law from the European Court of Justice on the equal treatment and non-discrimination as the basis for Union citizenship.13 However, the host state is not liable to give social assistance to a worker from another member state during the first three months or for a longer period as may be provided by Article 14(4) (b). It need not also grant student loans and aids before acquiring permanent residence. Article 12 of the TEC provides for non-discrimination against a member of another state by a host state as this forms the core of the free movement of persons. The right of non-discrimination based on nationality also applies to regulations unless it is objectively justified but it should put the migrant worker at a disadvantage (indirect discrimination) in relation to national workers14. In the Gottardo case, 15 it has been held that when a member state has entered into a bilateral convention with a third country (other than a member state) for according social benefits to its nationals, the same right of benefits shall be extended to nationals of a member state as are enjoyed by its own nationals. As such, both direct and indirect discrimination are prohibited. Regulation 1612/68’s Article 7 para 2 already prohibits differential treatment in respect of social and tax benefits. This has been confirmed in Christini case (C32/75)16. Direct discrimination that gives less favourable treatment on the grounds of nationality is permissible only on the grounds of public policy, security and health provided it is proportionate as held in Ministre de l’Interieur vs Olazaba l17 and MacQuen vs Grandvision Belgium18 and not repugnant to fundamental human rights as held in ERT vs DEP 19 Bernard argues that unless both the forms of discrimination are objectively justified, the national law discriminating against workers of member states and are liable to affect them more than the nationals of the host state, it is considered contrary to community law and hence invalid. The court has held the view that even if the national rule discriminates against it own nationals, it is still invalid if the rule is an impediment to free movement of workers within the community. Thus, direct discrimination is a breach of Treaty and/or Directive 2004/38 except under certain derogations of public policy etc. The same applies to indirect discrimination.20 Regulation (EEC) 1408/71 is applicable to both workers and self-employed persons of a member state as well as from third country or stateless persons. It also applies to survivors of these categories of persons. The Regulation applies to unemployment benefits among other similar benefits and it follows therefore that both the above categories and nationals of the host states should be treated on par in respect of employment benefits.21 “Right to reside test” prescribed by the U.K. has been held to be a violation EU law in respect of free movement. The UK provides for grant of social benefits such as Child benefit, Child Tax Credit, State Pension Credit to those who satisfy the “right to reside” test. For other benefits such as contribution-based job seekers’ allowance, both UK nationals and EU nationals need not satisfy this test. By this stipulation, while UK and Irish nationals are automatically allowed by virtue of their citizenships, other EU nationals have to meet the ‘right to reside’ test as per conditions laid down by the Free Movement Directive i.e the EU nationals must be economically active or should have their own resources for support.22 The European Commission gave its opinion in September 2011 that its “right to reside” test violated EU law as it indirectly discriminated against nationals of EU member states.23. The EU commission held the test to be redundant since as per ECJ case law24, the UK already has the means to grant benefits by virtue of “habitual residence” characterized by “duration and continuity of presence in a specific EU member state; the place where the person habitually works; the place where the person is deemed to reside for taxation purposes and others” 25 The UK has argued that it would entail additional expenditure of ? 2 bn a year. U.K.’s Worker Registration Scheme (WRS) granted migrants from specified eight member states (A8) benefits such as Housing Benefit, Council Tax Benefit while they are in employment provided they were registered. These nationals could claim social security benefits such as Jobseeker’s Allowance only after having worked for a twelve-month period without break for more than 30 days. This WRS scheme has ended in May 2011.26 In Commission v Belgium, 27 it was ruled that job seekers could not be expelled if they are continuing to seek employment, having genuine chances of being employed and there should be no time limit. The ruling was against the Belgian law that sought to expel a worker on the automatic expiry of three-month period.28 European Commission on 13.07.201029 has affirmed the right of EU citizens to seek jobs in another member state and be eligible to receive same assistance as the nationals of the Host state from the national employment office. This is as per article 5 of Regulation (EC) No 883/2004 that deals with social security rights from 1.5.2010. In case C-149/79 the Court of Justice has ruled that Union Citizenship concept is meant mainly for the purpose of according equal treatment to all the EU nationals in respect of receiving monetary benefits for facilitating access to job market of the host member state. However, in order to mitigate the financial strain on the social assistance systems, the CJ has ruled that the host member state could require genuine link between the job seeker and geographic employment market in question” (p 9). While a host state is free to determine nature of the link with the job market, the principle of proportionality should not be sacrificed or ignored. It should not be more than what is necessary to satisfy that the person concerned is actually seeking job in the host country. This protection is in place so as to enable the job seekers to seek judicial remedies if they are denied of assistance. Although article 24 (2) of the Directive enables a host state to deny job seekers social assistance during the first three months or longer period, the Court of Justice has ruled in Case No C-22/08 that assistance to employment market access does not form part of social assistance within the meaning of the said article. Therefore the Court of Justice’s conclusion is that job seekers from other member states are equally eligible as Nationals of the host state to receive benefits that facilitate access to job market. Whether a particular benefit under national law accords access to the labour market should be objectively analysed on a result oriented basis and not on a basis of formal structure of the benefit. The inclusion of job seekers for the purpose of being entitled to equal treatment goes a long way in affording protection to those who are in vulnerable position for a temporary period.30 Discussion and conclusion Nicolas has come to UK on 1 July 2011 and has worked for M-phasis for two months as a computer programmer continuously during the first month and only for a few days in the second month. As he has not been able to find employment in the U.K. thereafter, he has applied for relief under the Poverty Relief Act which is not available to foreign nationals. As he has been found to be ineligible to receive such relief, the UK authorities are seeking to expel him from the UK. The term” foreign national” on the face of it would only mean a national from a third country and not from within the EU member states. Therefore, Nicolas is right is holding the view that he is not a foreign national within the meaning of EU law. Now taking for granted that he is an EU national, he is entitled to receive social assistance as he has now completed the three month period of ineligibility to receive any such benefit. Nicolas is eligible only if what he seeks is to gain access to employment market of the UK as discussed above. Thus, as a job seeker he is not eligible to receive the poverty relief unless he proves that the assistance he seeks will provide him access to job market. Recall that in Commission v Belgium it was ruled that job seekers could not be expelled if they are continuing to seek employment, having genuine chances of being employed and there should be no time limit. And whether a particular benefit under national law accords access to the labour market should be objectively analysed on a result oriented basis and not on a basis of formal structure of the benefit. In any case, he cannot be expelled even if he is not eligible since the EU law and Directive permits an EU national; to support himself from his own sources. So if he proves that he has enough resources to support himself while he seeks employment in case of the poverty relief not being in the nature of assistance to gain access to employment market. Nicolas should therefore seek remedy before a court of appeal in the UK as provided by its national legislation. The appeal must be made within the prescribed time for appeal. EU law infringement can be appealed against before national authorities or courts in national proceedings. The European Commission may also be approached by preferring a complaint for the said infringement of EU law by a national law. Nicolas can submit a complaint to ‘SOLVIT’ which only deals with problems with a cross border element as a result of faulty application of EU law by public authorities of the UK. This complaint should be in addition to any appeal possible under the national laws of the U.K. 31 ,32. As regards, Nicolas’ entitlement to maintenance grant while he pursues a full time University course in the UK on 1 October 2010, it will not be available to him as an EU national. But he cannot be expelled for that reason if he has sufficient resources to carry on his education in the U.K. He has completed only one year of residence in the UK which will not accord him permanent residence status to be eligible for grants such as maintenance aid during studies. 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