Abstract
European free movement has facilitated the growth of a floating population of short-term transnationally mobile workers who seek job opportunities across borders and move readily, and often, for higher pay or advancement, or to avoid unemployment. The question of migrants’ access to social rights in European countries has profound implications for labour market regulation in Europe. Bruzelius and Shutes (2022: 502) argue that ‘mobility within and across national borders is shaped by and shapes welfare systems’. Free movement grants European citizens the highly valued right to live and work anywhere in the European Union, but also challenges the centrality of European nation states as ‘containers for society’ (Szmagalska-Follis, 2011).
Welfare states were born out of efforts to resolve nationally focused class conflicts resulting from industrialisation, creating ‘regimes’ embedded in national institutions, histories and societies (Esping-Andersen, 1990; Therborn, 1984). These welfare states were achievements of national labour movements and they continue to be contested even today, perhaps because they buttress labour power in politics and collective bargaining. Welfare states help to crystallise the national institutional ‘webs of rules’ that serve to regulate national labour markets. Intra-European mobility challenges the solidaristic, organisational and jurisdictional basis of welfare states and industrial relations systems by disrupting the assumption that individuals spend their entire lives under a single welfare regime, undermining the social solidarity on which welfare regimes were built (Sangiovanni, 2007). The issue of social insurance for mobile workers – extending the welfare state to the European level – is therefore an existential one for the European labour movement.
The EU’s institutional design facilitates mobility, but does not support it to nearly the same degree with social insurance. Despite progress in EU economic integration, welfare provision has remained a prerogative of the EU Member States, and welfare states, as one would expect, have eligibility rules that assume a certain level of connection to the state, society and territory in question. Geographic expansion of welfare is a challenge that historically has been overcome in federal systems through reciprocity deals (Bruzelius and Seeleib-Kaiser, 2021). Indeed in the EU, social insurance integration for mobile workers has been achieved through transferability and mutual recognition rather than a transfer of competence to EU institutions. The EU’s solution presents to workers as a confusing maze (Mantu and Minderhoud, 2023). Frontline ‘street-level’ bureaucrats (Lipsky, 2010) also find it confusing to implement in practice. Complexity and confusion create ambiguity, allowing social insurance institutions bureaucratic discretion to choose to help foreign migrants access benefits, or not (Simola, 2018), as well as opportunities for employers to avoid paying contributions (Berntsen and Lillie, 2015; Cremers, 2022).
This special issue examines the underpinnings of this system in law, and in the practices and behaviours of firms and workers. Through this, we explore the consequences of regulating the labour market/welfare system nexus in this way. The contributions to this special issue collectively make the case that the social insurance system for mobile workers in the EU is insufficient to support the existing level of mobility and explore solutions to this dilemma in law and policy. Although the category ‘mobile worker’ is broader than ‘migrant worker’ or ‘labour migrant’ – the latter belong to the former – we use these terms interchangeably in this issue. In EU parlance, intra-EU movement tends to be labelled ‘mobility’ rather than ‘migration’, which avoids the question of whether a short-term work contract in another country means that the relevant worker has ‘migrated’. ‘Migrant’ implies a more substantial connection to the host society. However, there is no clear line between mobile workers and work migrants – these do not identify distinct demographics or categories of worker (see Lillie et al., 2025, in this issue).
Through this special issue, we seek to show how differential labour and legal rights for migrant workers affect their access to social benefits. We assert that collective and individual labour rights enable social insurance access, and vice-versa. This implies that the often observed difficulties that bedevil any effort to regulate labour standards in the face of pan European mobility (Lillie et al., 2024) can be resolved only holistically, together with social insurance access. The pan-European labour market is marked by ethnic, nationality-based and skills-based hierarchies (Arnholtz and Leschke, 2023). Mitigating these difficulties requires simultaneously addressing the issues of multi-jurisdictional work relations, overcoming the sedentarist bias of welfare systems, and supporting the bargaining position of migrants vis-à-vis their employers.
Some articles in this special issue address how mobility affects workers’ social rights, individually or collectively, while others identify how our legal and policy structures shape those rights, as a path toward finding legislative solutions. Poor social insurance access, weak worker bargaining power (individual and collective), and legal exceptionalism with regard to migrants reinforce each other in a vicious circle. The lack of social rights and difficulty in realising them are often bound up inextricably with the denial of labour rights: employers, in evading collective agreements or other national standards enforcement mechanisms, also evade social insurance payments. The issues are connected because welfare systems undergird workers’ reservation wage, which translates into both individual and collective bargaining power. Reservation wage is a key concept in economics and is defined as the ‘[lowest] wage at which a worker is willing to accept a job’ (Kesternich et al., 2022). Workers with access to social insurance can decline when asked to work unreasonable hours, to undertake unsafe tasks or to work for too low and uncertain wages. Workers without access to alternative, non-market means of sustenance are faced with stark choices.
Insufficient access to welfare and social insurance not only creates problems for the workers concerned, but also destabilises labour markets and reduces union bargaining power. Undermining the workers’ reservation wage also undermines their ability to insist that employers provide social insurance, resulting in a self-reinforcing downward spiral. Poor social benefit access reflects the weak power resources of mobile workers, who are poorly positioned to demand the benefits they have earned. There are rules and systems for mobile workers to access benefits, but they function poorly because the workers (usually) have no collective power, and little individual power, vis-à-vis their employers, due to the transnational structure of the pan-European labour market. Exceptions to the norm of inclusion in national systems – that is, the sedentarist bias – within and between countries allow employers to escape national contribution systems and welfare state bureaucracies to deny coverage.
We are specifically concerned with temporary labour migrants, as they raise issues that are different from those of migrants intending to settle and integrate into the host countries where they work. We are also focusing not on refugees and asylum-seekers, but rather on labour migrants. These categories overlap, and migrants might belong to more than one. A refugee settled in an EU country might be posted from the host country – which then becomes a transit country – to another EU state to work on a job site. A Ukrainian who left Ukraine as a result of the Russian aggression might take advantage of individual free movement sometimes to work in the EU or settle in an EU country and sometimes to be posted from there to another EU Member State. An ostensibly permanent migrant might in fact return home, and thus turn out to be temporary. Temporary labour migration in the European Union raises questions and is covered by regulation specific to it; other modalities of mobility raise other issues. However, as our contributors show, these issues overlap and intersect in ways that complicate and undermine access to social insurance.
Mobile workers in the European Union fall into various categories, with both practical and legal implications for access to social insurance. A major conceptual division is between moving as a dependent employee and moving as an individual: the first category is regulated as ‘posted work’, under free movement of services, and contractually refers back to an employment relationship in the sending country, while the second is more like conventional migration, with the employment relationship based in the host country. The advantage of posted work, from the migrants’ perspective, is that it is possible to maintain familiar work relations with a familiar employer, and continuous social insurance from the home country, while the employer is able easily to send workers to fulfil contracts with customers abroad with a minimum of bureaucracy. Even within the concept of posting, however, there are various categories; for example, self-employed workers are not covered by the Posted Workers Directive, even though de facto they may be posted (De Wispelaere and Pacolet, 2019). Such workers are particularly vulnerable to employer fraud, with implications for their access to social rights. Also, in cases in which the host state’s wages and welfare arrangements are superior to those of the sending state (which is more often the case than not), the wages and benefits these workers have a right to will probably be lower than they would have been had the workers moved to take a job with a host country employer (Dølvik and Visser, 2009).
Pan-EU workers and nation state social rights
Employers organise worker mobility in various flexible ways, gaming the various legal categories to confound enforcement (Cremers, 2022). The highly mobile workers themselves also shift readily from one form of contract and legal regulatory framework to another, according to the opportunities they encounter on the job market, or for other reasons (Lillie et al., 2025). Unlike workers whose life world and career exist entirely within the borders of a particular nation state and welfare system, mobility introduces uncertainty in terms of whether their employers comply with all the necessary payments, whether the worker might be blamed if the employer has not, and whether social insurance benefits will be available if needed. This uncertainty is of course very much present in the host country, but also possibly in the sending country as well.
Although physically a worksite exists entirely in a single country, the legal and social regulation of migrants’ work and social insurance is not necessarily contained in the same way. There are therefore internal ‘borders’ that express intersectional status differences, expressed in both law and practice, providing differential access to rights. For example, a person with host country citizenship might have access to a social benefit, while a similarly situated migrant is refused such access. Wagner (2015) shows how, with regard to the enforcement of labour standards in the context of posted work, the interactions between territorially bounded labour-standard rule systems and internal national ‘borders’ defining labour inspectorate jurisdiction create uncertainty in employment relations. The labour inspectorate might be unable to enforce a rule on a given foreign firm because the relevant employment contract is in a foreign jurisdiction to which it does not have access. The EU and EU Member State labour inspectorates have developed capacities to cooperate and act transnationally, but this process is imperfect and incomplete (Lillie et al., 2024). The element of uncertainty widens the power differential between employers and workers because workers do not know what benefits they should expect, and what obligatory contributions their employers are making (or failing to make). For example, as Wagner observes, employers sometimes choose to pocket mandatory contributions to worker benefit funds for themselves, instead of paying into the funds. If books are kept outside the jurisdiction of host country unions and labour inspection, employers can actively strategise transnationally to avoid having to make such payments.
Similarly, Misje (2023) finds that homeless EU citizens in Norway must rely on minimal survival benefits instead of Norway’s otherwise generous universalist welfare state infrastructure; social workers become implicated in the process of defining this group as outside Norway’s ‘circle of social solidarity’. As Misje shows, there are contradictions between the ways in which welfare states define and develop categories, and the fact that many people do not fit in these categories, directly related to how borders are constructed internally. According to Misje, these contradictions challenge the embedded goals and ideologies of universalist social institutions. However, they do this by outflanking universalism rather than by challenging it head-on, because borders allow Norwegian society to define certain people as excluded from the universalist ‘deal’.
This means that mobile citizens may be in danger of falling between national circles of social solidarity and administrative jurisdictions. This undermines free movement goals, national welfare states and labour market stability. The European Union grants EU Member State citizens the right to live and work in other EU Member States, but this right is conditional on being economically active, and the right to access social insurance also depends, de facto, on the mobile person working. Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States establishes a framework for rights of EU citizens in other Member States, but (i) these rights depend on a certain length of residence and (ii) derogations by host Member States are permitted.
The scope of derogations has been widened in the Court of Justice of the European Union (CJEU) jurisprudence. Directive 2004/38 does not give clear instructions to Member States on whether they should grant social benefits to citizens of other Member States on their territory who lack resources or employment (Shutes, 2016). CJEU jurisprudence allows Member States to restrict benefit access for EU citizens who have been resident less than five years, and also to remove them from their territory if they have insufficient resources. Applying for benefits can also be an indication of insufficient resources, leading to a situation in which a worker who has worked long enough to qualify for benefits might be denied them and even removed from the territory on becoming unemployed. Effectively, such people are outside the protections normally afforded to residence in welfare states (Simola and Lillie, 2016). Migrant sending states also sometimes make reducing social contributions for posted workers a matter of policy to increase the competitiveness of their labour export industries (Danaj and Meszmann, 2024).
One explanation for this might be found in the observation by Bruzelius and Seeleib-Kaiser (2021) that federal systems tend to be structurally biased toward limiting social benefit access for mobile citizens. Historically, pushed primarily by the economic logic of assuring free movement between subnational units, federations such as Switzerland, Germany and the United States all eventually eroded the sedentarist biases of their systems. The implicit suggestion is that this could also happen in the European Union. If it does, it is likely to follow the path of legal decisions supporting migrants’ rights to social insurance. Bruzelius and Seeleib-Kaiser categorise the development paths of their historical case studies into cases in which legal constitutional court cases removed the rights of subnational units to restrict access (USA), and cases in which the issue was resolved through sending region authorities recompensing receiving ones for a period of time, before the responsibility was transferred to the new place of residence (Germany, Switzerland). Neither appear immediately likely, in their view, given the direction of most recent CJEU decisions, which have made it easier for member governments to restrict benefit access and remove economically inactive EU citizens (Simola, 2018), but in a longer time frame either is possible. The CJEU has the constitutional authority, and on some occasions ideological bent, to support free movement over Member State preferences.
Human factors: employers’ contributions, the role of street-level bureaucrats and workers’ reservation wages
The essence of a segmented labour market is that there are different equilibria with regard to wages and labour conditions for the same work for different social groups. This requires limited mobility between the different labour market segments, which can be due to gender, class or racial discrimination, or discrimination based on national origin, for example. These segmenting social barriers can interact with one another – often de facto stacking on top of one another – in intersectional ways. Such wage equilibria can emerge due to informational limitations on firms (Doeringer and Piore, 1971), management exploitation of antagonisms between ethnic groups (Bonacich, 1973), migrants’ dual frame of reference (Piore, 1979), and management perceptions (MacKenzie and Forde, 2009). Employers recruit migrants as a way to minimise costs, in terms of both lower wages and lower social costs. This may result in the creation of jobs and even whole sectors in which natives are not willing to work (Castles and Kosack, 1973; Fellini et al., 2007). In this way labour market segments become ethnicised, with certain groups dominating in certain jobs. These dynamics have in common that they set up workers with certain characteristics to be labour market ‘outsiders’, whose weaker social position justifies and facilitates their being paid less and treated worse than workers who are considered full members of society. This is relational: it is not only that management or other powerful actors decide that these workers can be mistreated, but that group members, to some degree and perhaps reluctantly, acquiesce in it (Matyska, 2019).
The EU promises mobility with rights attached, but only partly delivers on this promise, so that mobile workers in the EU still behave as dual-frame migrants, who gauge the value of a wage by conditions in their sending country. Like migrants who often find themselves powerless as they cross borders and place in the categories deemed acceptable by those who control admittance (Anderson, 2010), intra-EU migrants often valorise themselves and justify their rights by being hard working and docile (Alho and Sippola, 2019). Accordingly, this enables mobile workers as individual market actors, but constrains and represses them as collective ones (Berntsen, 2016; Sippola, 2013). As Anderson (2010) observes, the precarity of migrants’ formal status affects their willingness to demand rights and good treatment; likewise host society legal systems regard a certain level of legal exceptionalism as acceptable when it comes to equal treatment of migrants (Baas, 2025, in this issue). Migrant workers may seize on market autonomy as a strategy for integration and acceptance by society, even though it is at odds with enjoying the full benefits of citizenship. They thus contribute to their own exploitation (Lillie and Ndomo, 2021). EU mobility rights go only part way toward helping mobile workers to stand up for their rights, thus giving rise to hierarchies based on social rights.
Bruzelius et al. (2017) show that social insurance rights end up ‘stratified’ by the social benefits available in an EU citizen’s country of origin. We would caveat this by noting that, for highly mobile workers, even this stratified system may not be fully accessible because of the fragmented and ‘grey’ nature of the pan-EU job market. For example, Wagner et al. (2025, in this issue) show that intra-EU migrants in the shipyards benefited from government COVID-19 measures, when they were in secure, if transnational, employment; those in precarious jobs had no such protection. Mobile workers, particularly less educated migrants, must rely on host state bureaucrats not only for access to benefits, but also for advice on whether they can even obtain benefits. After returning to their country of origin they must navigate the maze of rules concerning the portability of any entitlements. Furthermore, third-country migrants, who operate in the same labour markets, and often move within Europe through the same channels (including, for example, third-country postings), have even weaker rights and are in an even less secure position to try and enforce them. A hierarchy of labour market migrants emerges from degrees of exclusion from social and labour market rights (Arnholtz and Leschke, 2023).
Human rights, and in particular the role of anti-discrimination law, have implications for mobile workers’ social rights because it is often considered acceptable to treat migrants as an exception where equal treatment is concerned (Baas, 2025). Some of the articles in this special issue consider the position of migrants from the point of view of both social rights and human rights. Baas’ article is concerned with third-country nationals’ social rights on the one hand, and human rights (the anti-discrimination provisions of EU law) on the other. The fact that equal treatment is not applied to migrants paves the way for segmentation, which jeopardises not only the fairness, but also the stability of EU labour markets. A similar tension between social rights-based and human rights-based (equal treatment, non-discrimination) regulation of mobile workers is noted in Gellérné Lukács’ and Gyulavári’s article, deriving from inconsistent definitions of who is considered an employee, and who is not. In Houwerzijl and van Gardingen’s article, the human rights principle of equal treatment is inherent in their consideration of the new recasting of the Single Permit Directive.
EU law and national court cases form the basis for human and social rights for mobile workers. Provided there is adequate enforcement of EU law, employment practices and enterprise strategies change to accommodate the relevant standards. This leads to higher expectations of labour conditions and reservation wages on the part of mobile workers, and consequently to better welfare and social security. Hence, a virtuous circle can result. In a contrasting chain of events (unequal EU law, bad enforcement, low reservation wages), however, a ‘race to the bottom’ emerges in which labour market competition and poor access to social benefits reinforce each other.
Thus, there is an iterative relationship between low reservation wages, poor access to social insurance and industrial relations norms. Low reservation wages have an effect on the negotiating power of trade unions in individual EU countries and beyond. Lower expectations with regard to wages among mobile workers increase the downward pressure on wages for native workers as well, including those in other labour market segments. In a situation in which wage setting is already decentralised from the sectoral level down to the level of the firm or the individual, which causes inequality and poor wage development (Kuegler et al., 2018), mobile workers’ low reservation wages further exacerbate the downward spiral.
Resolving the issue at the EU level
While Bruzelius and Seeleib-Kaiser (2021) present a convincing case that the EU should be regarded as a federal state, and welfare should spring out of mutual recognition, there is an alternative path of supranationality. The construction of a supranational welfare apparatus would be another way of providing transnational workers with social insurance. Historically, welfare states emerged out of class conflict and compromise (Esping-Andersen, 1990; Therborn, 1984). It is therefore interesting to consider the potential, albeit quite limited, of European class-based interest organisations.
The development of a uniform European approach would be complicated by the plethora of different social insurance approaches within the EU. Within EU Member States, even particular sectors sometimes have their own institutions. These are reflected in employer preferences in Brussels, and employer associations must balance and mediate them with the need to lobby effectively in Brussels (Guardiancich et al., 2023). According to Mares (2003), there are four ideal-types of employer preferences in relation to social policies: (i) no social policy – employers are not interested in any form of social coverage; (ii) private social policy or occupational welfare – companies, sometimes in social partnership with unions, develop their own social insurance funds; (iii) contributory social policy – employers accept social policies financed by compulsory contributions; and (iv) universalistic social policy – employers agree to funding through general taxation. All these forms of social insurance find expression in the systems of different EU Member States, presenting a diversity that contributes to the problems mobile workers face, and also making EU harmonisation a daunting task.
Employers advocate mainly for the first option of ‘no policy’. This gives rise to a form of unity by obviating the need to negotiate social policy system preferences within their own side. Research by Aranea et al. (2021) suggests that supranational European employer organisations are interested mainly in preventing EU action on social issues. With regard to the issues they have engaged on, they were willing to act mainly to pre-empt impending Commission action, for example by bargaining on transnational collective agreements. 1 Guardiancich et al. (2023) expand on this, arguing that employers seek ‘cost containment’ at the EU level, tending to oppose social protection (retirement and unemployment insurance) legislation, but are less inclined to oppose ‘social investment’ such as training and active labour market policy. Employers generally support ‘negative’ integration, or the deepening of economic integration through removal of national barriers because this seldom constrains them but often offers new opportunities, both for market growth and for avoiding or undermining regulation.
For unions, however, unity is quite difficult to achieve because supporting a social policy means working out a concrete proposal, and unions will have different preferences, depending on whether they advocate for private/occupational welfare, contributory social policy or universalistic policies. Unions’ responses usually manifest as union support for the kind of social policy arrangements from their home country that they view positively, and which are important at home for shoring up their power base. From this, it is clear why it is inherently much more difficult to achieve consensus on positive integration, which would introduce changes to national welfare systems through direct harmonisation measures, than on negative integration. Negative integration also puts national systems under pressure, but the effect tends to be diffuse. Positive integration is therefore more likely to generate controversy, with specific proposals presenting many opportunities for disagreement on details. Dingeldey and Nussbaum Bitran (2024) note that in the European Minimum Wage discussion, unions were unable to attain unity. Extensive discussions resulted in a revision of the Directive which was finally passed. The revised version was acceptable mainly because it allowed collective bargaining to be considered a form of minimum wage implementation, and in this way the Directive’s advocates were able to gain the acquiescence of the reluctant Nordic unions.
Synthesis: how to improve mobile workers’ social rights
The legal and empirical analyses we have collected show that there are legal and institutional gaps between Member State national systems. This opens up possibilities for workers to fall outside mechanisms of social insurance provision. Employers take advantage of these opportunities, both intentionally, to avoid paying contributions, and as a side effect of avoiding labour regulation. Both a proper legislative basis and power resources for workers are needed to shift this dynamic and stop what has become a downward spiral in conditions. When it comes to migrant labour, especially third-country nationals, mobile workers are powerless when initially arriving in a country because they are not necessarily under the jurisdiction of any national social security system (Gellérné Lukács and Gyulavári, 2025). Mobility for many workers means that they are permanently temporary, so the risk is not just of a short-term gap, but also potentially lifelong exposure (Lillie et al., 2025). Mantu et al. (in press, in this issue) demonstrate that migrant workers are not treated equally in accessing health care compared with native workers. In this situation EU equal rights/discrimination legislation might help (Baas, 2025). There is still hope that EU law can take a more assertive role in reinforcing the social rights of the most vulnerable groups, such as posted third-country-national temporary agency workers (Houwerzijl and van Gardingen, 2025).
Revisions in law, however important, help only if the rules can be enforced, and in this respect, workers’ power deficit is likely to undermine any regulatory solution. In the context of such weak power resources, we should consider how migrant mobile workers might find or foster power resources so that they can demand their rights. Resorting to market power as individual workers produces dividends for skilled workers, or for those from strong welfare states (Wagner et al., 2025), but this is a viable solution only for those who need it least. The most vulnerable are also least able to access social insurance (Lillie et al., 2025). Among the shipyard workers investigated by Wagner et al. (2025), trade union strength varies across the European space, and in this context serves more to shore up the security of the already well off rather than to raise up the most vulnerable from their powerlessness. How to extend union coverage is not a problem we address in this issue, but it is clear from our contributions that both social insurance and union rights are bound together and so must be addressed together.
Our contributions suggest that unions and national regulatory authorities should concern themselves more with ensuring that mobile workers have practical access to social insurance. Improvements could be made through EU legislation, but also in national laws, through better enforcement and by improving the migrant-friendliness of the bureaucratic procedures of social insurance providers. Most helpful, however, is likely to be action to prevent the exploitation of intra-EU mobile workers as cheap labour, as the same employer practices that characterise labour exploitation also result in reduced access to social insurance.
