Struggles over social rights: Restricting access to social assistance for EU citizens

Abstract

The legal category under which EU citizens exercise their right to free movement – worker, jobseeker, student or economically inactive - determines access to social rights in the host state and leads to differential inclusion in the welfare state. The right to equal treatment in relation to welfare entitlements has been subject to constant litigation before the European Court of Justice, leading to the refinement of the conditions under which migrant EU citizens can access welfare and the implications of such requests for their right to reside in an EU state. Moreover, while the conditions of access to an EU host state's welfare system are set at the EU level, the delivery of welfare takes place at the national and local levels, making national administrations and bureaucrats important actors in the governance of welfare. The aim of this article is to tease out the relationship between different levels of jurisdiction in the governance of access to the welfare state. We rely on data from 11 Member States in which we monitored the application of the relevant EU legislation and case law during the time frame 2016–2020. The main trends we discern are a growing interdependence between immigration and welfare authorities and a move towards the systematic control of all EU applicants for social assistance in several states. We argue that these developments are facilitated by the turn in the CJEU's jurisprudence that limits entitlement to welfare for economically inactive EU citizens and emphasises conditionality and legal residence as the main axes determining access to the welfare state.

1. Introduction

Legally, European Union (EU) citizenship is linked to a form of mobility centred around the citizen's right to move among the EU states and those states’ diminished capacity to refuse entry and to terminate residence rights. EU citizens are free and encouraged to move as well as promised that if they do so they will be treated equally with the nationals of the host state, including in the sphere of social rights and access to the welfare state. The host state and its administration are obliged as a matter of EU law to treat the nationals of other EU states not with the suspicion they normally reserve for non-EU migrants whose presence needs justification, but as fellow ‘citizens’ who have a right to be present on state territory. The fact that EU citizens enjoy a right to equal treatment, while host states must justify treating them differently is a noteworthy feature of the EU system of free movement. In international law, it is generally accepted that states can discriminate against foreigners on nationality grounds. These legal premises of EU citizenship promise to transform foreigners into citizens but this promise has been asymmetrically fulfilled depending on whether one looks at social rights, protection against expulsion or family reunification rights (Mantu et al., 2019).

More fundamentally, the promise of ‘citizenship’ may fail to fully materialise because the Member States still enjoy a residual power to exclude EU citizens and the right to mobility is conditional upon performance of an economic activity or financial self-sufficiency. The latter condition is linked to the desire to protect the social assistance systems of EU states from free riders and abusers. Equal treatment concerning social rights is activated only when the person is legally resident in accordance with EU law and differently constructed depending on whether one is a worker or an economically inactive person. Therefore, EU citizenship has been labelled as ‘market citizenship’: despite the language of equality that accompanies it, EU citizenship essentially benefits economically active persons who contribute to the EU's internal market (Dale and El-Enany, 2013; O’Brien, 2016; Ristuccia, 2023). The legal category under which EU citizens exercise their right to free movement – worker, jobseeker, student or economically inactive – determines access to social rights in the host state and leads to differential inclusion in the welfare state (Articles 7 and 24 of Directive 2004/38). Thus, equal treatment works at its best and most generous where it is underpinned by the citizen's contribution to the ‘market’ but less so where the EU citizen is economically inactive and poor. Duration of residence is another important factor since after acquiring permanent residence status, EU citizens enjoy equal treatment with nationals in the social sphere.

In practice, social rights are a contested aspect of EU citizenship since they disrupt nationally bounded welfare states by demanding the incorporation of EU migrant citizens based on the principle of equality. This is an area where the tensions between the national and EU levels are very much at play. While the EU level creates transnational social rights and sets out the conditions of access to an EU host state's welfare system, the delivery of welfare takes place at the national and local levels, making national administrations and bureaucrats important actors in the governance of welfare. To tease out the relationship between different levels and actors in the governance of access to the welfare state, we use data from 11 Member States in which we monitored the application of the relevant EU legislation and case law during the time frame 2016–2020. Our comparative analysis of legal practices illustrates how EU social citizenship is being constricted as a result of the growing interdependence between immigration and welfare authorities underpinned by technological fixes and the move towards the systematic control of all EU applicants for social assistance in several states. We argue that these developments are facilitated by the turn in the jurisprudence of the Court of Justice of the EU (CJEU) that limits entitlement to welfare for economically inactive EU citizens and emphasises conditionality and legal residence as the main axes determining access to the welfare state.

The article is organised as follows: the introduction sets out the main challenges of combining citizenship and equal treatment in relation to the legal status of EU citizenship. Section 2 presents the data collection; section 3 gives an overview of social rights as transnational rights in a multilevel system with different jurisdictional levels and a variety of actors involved; and section 4 analyses the main trends that we identify based on national data, namely, the growing interdependence between immigration and welfare authorities and the move towards the systematic control of all EU applicants for social assistance in several states. Section 5 concludes with a discussion on the interplay between the EU and national levels understood as a struggle over the power to define entitlements to EU social rights.

2. Methodology

Data was gathered through a questionnaire sent to national legal experts in 11 Member States (Austria, Belgium, Denmark, Germany, Spain, France, Ireland, Italy, the Netherlands, Poland, Sweden). The questionnaire covered four topics linked to the conditions for the exercise of the right to free movement by EU citizens: (1) access to social assistance benefits for EU citizens and their family members; (2) residence rights and measures terminating or restricting residence; (3) permanent residence; and (4) family members. It covered the time period 2016–2020. The full report can be accessed here (Mantu and Minderhoud, 2021).

The aim was to gather information on national legislative developments, administrative and judicial practices as well as to understand how the national level responded to CJEU jurisprudence concerning social assistance following the Brey and Dano line of jurisprudence. The questions asked in the questionnaire and the country selection were informed by a previous project covering 2014–2016 that monitored national practices in relation to the social assistance and permanent residence rights of EU citizens in the then EU-28. For the current analysis, we decided to focus on EU states that referred preliminary questions linked to EU citizens’ right to reside and access social rights (Austria, Belgium, Germany) and on states where EU mobility was a salient issue based on existing research, including our own previous project. There we concluded that ‘asking for social benefits becomes a first step towards being considered by the administration as an unreasonable burden, which leads to the termination of EU residence rights’ and that ‘asserting and maintaining residence rights under Articles 7 and 16 of Directive 2004/38 is becoming problematic for certain categories of EU citizens and linked with the more restrictive position taken by some Member States in relation to accessing their national social assistance systems’ (Mantu and Minderhoud, 2019: 313–314). The comparative legal analysis in this article allows us to take a longitudinal perspective on the widening and contracting of EU social citizenship and to highlight its effects for economically inactive EU citizens.

3. Social rights in a multilevel system: complexity, fragmentation, and uncertainty

European integration in social policy is asymmetric, leading to a matrix of individual rights and state obligations that function as a site of power struggles over the definition of the material and personal scope of European social citizenship. The social rights of EU migrant citizens can be described as a complex field of law encompassing different pieces of EU legislation with different scopes of application and purposes. Social security is dealt with in Regulation 883/2004, while social assistance is dealt with in Directive 2004/38 (EU citizens) and Regulation 492/2011 (EU workers). According to the CJEU, social security benefits are granted automatically to persons who meet certain objective criteria, without any individual and discretionary assessment of personal needs. ¹ The EU does not aim to harmonise the social security systems of its Member States. Rather, it limits itself to adopting rules that coordinate national systems. EU states retain the power to decide what types of benefits they provide in their legislation, but EU law requires them to open their national systems towards EU migrant citizens and, provided that certain conditions are met, treat them equally to their own citizens. The social security coordination rules were initially designed for EU workers but in time they were expanded to cover EU citizens as a way of mirroring the expansion of the right to free movement to other categories besides EU workers, and the introduction of EU citizenship as the fundamental status of the nationals of the Member States. Social assistance – the focus of this article – comprises benefits which are needs-based and means-tested and financed through general taxation. They imply a certain degree of solidarity between those who need them and the pool of persons who finance them. In the European context, welfare states and social solidarity are historically constructed along national lines as discussed in the literature on welfare chauvinism (Careja and Harris, 2022). Moreover, EU states’ adherence to the idea of transnational social rights is equivocal. First, EU states remain reluctant to transfer social policy competences towards the EU level with the result that there is no harmonisation of social security in the EU and no common EU welfare state; instead there is coordination. Second, when it comes to social assistance, social solidarity towards EU citizens is conditional upon economic activity and legal residence that requires financial self-sufficiency, which leads to the ‘EU citizenship as market citizenship’ conundrum.

Directive 2004/38 is the main piece of secondary legislation setting the conditions for the exercise of the right to free movement for EU citizens and their family members, including the rules on equal treatment and social assistance. When introduced in 2004, the Directive was meant to bring clarity and to unify the rules applicable to mobile EU citizens irrespective of engagement in an economic activity. Concerning equal treatment, it fails to realise these aims. On the one hand, economically inactive citizens can move and reside in another EU state if they have sufficient resources and comprehensive medical insurance. According to Article 24(1) of Directive 2004/38, if legally resident – which means they meet the conditions of Article 7 of Directive 2004/38 – they enjoy equal treatment with nationals of the host state within the scope of the Treaty. On the other hand, the Directive does not clearly spell out the legal consequences of a request for social assistance by an economically inactive EU citizen prior to the acquisition of the right of permanent residence (after five years). Nor does it provide a clear definition of what sufficient resources are or when an EU citizen is an unreasonable burden for the host state (Mantu and Minderhoud, 2019; Minderhoud, 2016; Verschueren, 2015). Moreover, the preamble of the Directive lists contradictory aims: some speak of the fundamental status of EU citizenship and the need to examine requests for social assistance individually (recitals 3 and 16) while others emphasise welfare sovereignty and the host state's right to ensure that EU citizens do not constitute an unreasonable burden for their social assistance systems (recitals 10 and 21).

The well-functioning of this web of EU rules is dependent on the national and local levels. National legislators must first transpose EU law into national law and then ensure that the application and implementation of EU rights are effective. The local level is usually where the delivery of welfare takes place, at the level of municipalities. In past work we have shown that the transposition of Directive 2004/38 was used by several EU states to restrict the access of certain categories of EU migrant citizens to social assistance and jobseeking allowances with a view to limiting social rights to national citizens who are constitutionally entitled to them and to EU workers and self-employed whose entitlement stems from contribution via taxation on work or economic activity (Mantu and Minderhoud, 2019). Empirical research into how EU citizens experience their EU rights at the local level suggests that there is a lot of confusion as to what entitlements such citizens have in relation to social rights. Generally, there is an administrative habitus that questions their entitlement to receive social assistance combined with lack of information and transparency as to how the system works (Heindlmaier, 2020; Lafleur and Mescoli, 2018; Pennings and Seeleib-Kaiser, 2018; Simola, 2020; Valcke, 2020; Van den Bogaard et al., 2022).

National courts and the Court of Justice of the EU are equally important actors in this system. In line with the principle of primacy of EU law, national legislators, courts, and bureaucrats are under an obligation to set aside national law that contravenes EU law and its interpretation by the CJEU. Where EU law is unclear, national courts have the obligation to refer questions for clarification to the CJEU via the preliminary reference procedure (Golub, 1996; Leijon, 2021; Nowak and Glavina, 2021). The complexity of the EU rules on equal treatment and social rights coupled with the legal uncertainty (Schmidt, 2008) stemming from Directive 2004/38 and the tendency of EU states to apply and interpret EU rights restrictively has led to litigation on the application of the right to equal treatment in relation to social rights before national courts and the CJEU.

In the first stages of EU citizenship jurisprudence, CJEU case law shaped the rights of economically inactive EU citizens by coupling EU citizenship with the principle of non-discrimination on the basis of nationality (Article 18 TFEU) to enlarge the pool of EU migrant citizens entitled to enjoy equal treatment with the host state's citizens in the area of social rights. In our view, this was a move with constitutional implications: to access social rights, the EU citizen had to be resident in the host state but the legal basis of that residence was not relevant. It was not limited to EU law; instead it could be national or international law (see Martinez Sala and Trojani). ² The constitutional implications of this case law meant that national immigration authorities lost control over the residence of EU citizens, at least at the theoretical level.

Consequently, the CJEU was accused of ‘judicial activism’ on grounds that it stretched the interpretation of EU citizens’ rights beyond what the Member States negotiated and adopted as secondary legislation, all in the name of the fundamental character of EU citizenship and with the effect of disrupting national welfare systems (Beck, 2017; Dawson et al., 2013). The CJEU's intervention in the governance of welfare is seen as undemocratic in the sense that it is not based on a popular endorsement of how to distribute resources. Welfare states are not only national expressions of solidarity but also expressions of political choices about resource distribution, and such choices should not be entrusted to unelected European judges but to national politicians (Bellamy, 2008; Blauberger, 2012, 2014; Davies, 2010; Schmidt, 2022).

Although EU law does not give unconditional access to social assistance to EU migrant citizens, and the Court of Justice has never interpreted EU law in this fashion, the criticism of EU free movement and equal treatment rules has endured and thrived under catchphrases such as ‘poverty migration’ and ‘benefits scroungers’ (Mantu, 2018). In this vein, Brexit was seen as a response to the perception of EU migration as putting extra pressure on services, including welfare. The CJEU's constitutional moment in Martinez Sala became a thing of the past as the Court switched to a more restrictive interpretation of the rights of economically inactive EU citizens. In a shift that vindicates national immigration authorities’ claim of control over EU citizens’ presence, the requirement to be legally resident in line with EU law (i.e. sufficient resources) took centre stage after the Brey and Dano line of jurisprudence ³ and was again confirmed in the recent C.G. case. ⁴ The right of a host EU state to deny social assistance and to terminate the right to reside of an EU citizen who is not self-sufficient became equally central.

Clearly, CJEU jurisprudence over EU citizens’ social rights is part of a policy cycle that includes the formulation (and reformulation) of EU legal provisions, their transposition, application and interpretation by national administrations and courts. The way the various jurisdictional levels and actors described above fit together is studied by the literature on the ‘Europeanisation’ of the welfare state. The adoption of EU rules on equal treatment and free movement has an impact on national welfare states in terms of demanding adjustments to deal with EU requirements stemming from legislation and case law. Europeanisation literature has paid considerable attention to the transposition and implementation of EU law by the Member States since it views them as indicative of (non-) compliance with EU law and of the extent to which European integration leads to domestic change. Our analysis fits within a wider understanding of Europeanisation (Blauberger, 2014; Schmidt, 2008) that takes into account jurisprudence and acknowledges that policymaking is a continuous process involving the enactment of new laws as well as the revision and updating of laws already in force (Christensen, 2010) because of interactions between the national and EU levels. The national practices we discuss in this article fit within an understanding of Europeanisation as a ‘two-way-process’ where the Member States do not passively adapt to EU law, but rather use the integration process to pursue national interests (Börzel 2002; Radaelli 2003) with varying degrees of success. As such, legal uncertainty creates opportunity structures for the Member States to – sometimes successfully – pursue their own national interests via CJEU litigation and modify the interpretation of EU law to match national preferences (Mantu and Minderhoud 2017, 2019).

4. Social assistance at the national level

In this section we discuss three main developments that we distil from the replies to our questionnaire: (1) cementing exclusion from social assistance for economically inactive EU citizens and the spill-over effects of exclusion for other categories of EU citizens such as EU workers; (2) a move towards the systematic verification of the residence rights of EU applicants for social benefits facilitated by the cooperation of welfare and immigration authorities at the national and local levels; and (3) a fragile relationship between residence rights, sufficient resources and social assistance.

4.1. Cementing exclusion from social assistance

Directive 2004/38 does not give a clear answer to the question of what happens when an economically inactive EU citizen claims social assistance from the host state because s/he lacks sufficient resources, neither in terms of whether the benefit should be granted, nor in terms of the consequences of such a request or grant for the EU citizen's residence. One possible interpretation is that the EU citizen keeps a right of residence under Directive 2004/38 until national authorities terminate that right after an individual examination of her/his circumstances because s/he has become an unreasonable burden to the social assistance system of the host state. The granting of social benefits is not a priori excluded. This interpretation builds on the Court's older jurisprudence dating from its expansionist phase of interpreting EU citizenship when it ruled that a host EU state can end the right of residence of the person concerned but that this should not be or become ‘the automatic consequence of relying on the social assistance system’. ⁵ After the CJEU rulings in the Brey and Dano line of cases, a different and restrictive interpretation gained ground which had been championed in national implementation measures by the states that referred questions to the CJEU: an economically EU citizen who claims social assistance does not comply with the requirement of having sufficient resources and her/his rights of residence should be terminated. This interpretation can be questioned since it bypasses Articles 8(4) and 14(3) of Directive 2004/38 that require a proportionality assessment to take place before deciding if the EU citizen places a burden on the social assistance system of the host state (Verschueren, 2014).

Nonetheless, once upheld by the CJEU, this more restrictive interpretation is becoming normalised in national laws and administrative practices. Austria and Germany took legal steps to formalise the exclusion of economically inactive EU citizens from social assistance prior to the acquisition of the right of permanent residence. For example, in 2019 Austria introduced federal legislation that limits the granting of social assistance to Austrian citizens, refugees according to the Geneva Convention and long-term migrants who have resided lawfully there for at least five years. ⁶ Before completing five years’ residence, EU/EEA citizens, Swiss citizens, and third-country nationals are only entitled to equal treatment as long as this is mandatory due to provisions of Union law or international law, and only after the competent national authorities have been consulted in each individual case. ⁷ By the end of 2016 and after the CJEU rulings in the Dano, Alimanovic and Garcia Nieto cases (all preliminary references from German courts), Germany adopted stricter social assistance legislation. Economically inactive EU citizens (including jobseekers) are excluded from social assistance for the first five years of their residence in Germany. During the first two years of residence, EU citizens without a right to a social assistance benefit can get a one-off transitional allowance for four weeks to help them leave the country. The changes introduced in 2016 have opened the way to a disjuncture between welfare and immigration laws, since an EU citizen who has been staying in Germany for five years without the immigration authority having determined that s/he is obliged to leave the country is entitled to benefits without any further conditions. ⁸ Thus, the five years of residence that give rise to social entitlements (according to welfare legislation) do not necessarily have to be spent fulfilling the conditions of residence under Directive 2004/38 (immigration law). Yet, at the practical level (see subsection 4.2) the gap has been closed by introducing an obligation for welfare authorities to report to the immigration authorities.

In some Member States (Belgium, Denmark, Sweden, the Netherlands) (a kind of) social assistance is provided in case of need, but this can have consequences for the right of residence. For example, the Netherlands uses a so-called sliding scale, according to which during the first two years of residence any claim for social assistance is considered unreasonable and, in principle, will result in the termination of the residence. ⁹ In Sweden, temporary difficulties in being able to present one's own resources shall not exclude the person from the possibility of receiving temporary support from the municipality. ¹⁰ If the EU citizen has no sufficient resources and no comprehensive medical insurance, the support is minimal and limited to emergency interventions and possibly money for the return journey. ¹¹

In some EU states the introduction of new social benefits has been accompanied by residence conditions that seek to reserve (indirectly) those benefits to nationals (France, Spain, Italy, Poland). For example, in 2019 Italy introduced two new types of social benefits: the reddito di cittadinanza (a minimum income scheme) ¹² and the pensione di cittadinanza (a minimum income scheme for persons over 67 years of age), which can be seen as a kind of social assistance benefit. ¹³ Italian nationals, EU nationals, their third-country national family members and long-term resident third-country nationals are entitled to the benefits if they have resided in Italy for ten years and for the last two years on a continuous basis. The introduction of these benefits was accompanied by political discussions about who should benefit from them and the possibility to reserve them for Italians only. Thus, the accompanying residence condition is a compromise solution which aims to reserve the benefits to persons with a strong link to Italy. The requirement does not discriminate on nationality, but it has been challenged before the CJEU on the ground that it violates EU law. ¹⁴ The case is pending. ¹⁵ The 2018 reform of the Spanish National Health system recognised the right to public funded health protection and healthcare of all persons in Spain independently of their legal status or nationality. However, it remains unclear whether economically inactive EU citizens are covered by these changes. ¹⁶ France introduced a new condition of a three-month period of stable and regular residence in France in order to benefit from coverage of health costs. ¹⁷ This provision limits access to care and although it applies to both French nationals and foreigners, it is easier for French nationals to prove a three-month stable and regular residence in France than for EU citizens. France also restricts the right to coverage of health costs of insured persons who cease to have regular residence in France, and who must be resident for three months in France before they can benefit from the medical aid provided by the state (Aide médicale d’Etat (AME)). ¹⁸

Poland has introduced a series of social benefits, some of which are social assistance benefits: the so-called Good Start benefit granted to all persons residing in Poland, ¹⁹ and the Mothers 4 Plus benefit, ²⁰ which is a parental supplementary benefit. Accessing these benefits is problematic for Polish nationals who return to Poland after having exercised their right to free movement and who cannot meet the residence conditions attached to these benefits. There are ongoing challenges before national courts concerning family benefits where one of the parents (a Polish national) works in another EU state.

The restrictive approach to the social rights of economically inactive EU citizens has spill-over effects for categories of EU citizens whose economic participation in the EU internal market is weak(er) (Denmark, Germany). For example, in 2016 Germany introduced legal provisions that excluded from social assistance EU citizens who derive a right of residence as the carers of the child(ren) of a former EU worker in line with Article 10 of Regulation 492/2011. This right to reside for the carer of a child of a (former) EU worker is not conditional upon meeting sufficient resource or medical insurance requirements, but on the child pursuing education in the host state and one of the parents having worked there. Herewith, the German legislator sought to overrule the decision of the German Federal Social Court that such persons would not be covered by the exclusion provision in the social assistance legislation applicable to economically inactive persons. ²¹ According to the brief explanatory memorandum of the legislator, the case law of the Federal Social Court created additional burdens for the municipalities and social welfare agencies, and the new exclusion was in conformity with Directive 2004/38. ²² In October 2020 the CJEU ruled that the contested provision was contrary to EU law ²³ and the German legislator reacted immediately by repealing it. ²⁴

In Denmark the granting of social assistance benefits to EU citizens has been high on the political agenda for some time (Mantu and Minderhoud 2019:319), but no legislative amendments have been made. Instead, Danish municipalities were given detailed guidelines on assessing the status of EU workers when deciding on social assistance benefits, and closer cooperation between the municipalities (the social authorities) and the immigration authorities was introduced. The aim is to ensure that the assessment of the individual EU citizen's status as a worker is uniform and more accurate, that EU citizens do not receive social assistance benefits they are not entitled to, and that EU citizens do not have unreasonably easy access to Danish welfare benefits.

4.2. Interlinking bureaucracies and systematic verification

The request for social assistance is usually dealt with by the local authorities (mostly municipalities) that implement the social assistance legislation. The way national administrative authorities deal with the request for social assistance by economically inactive EU citizens differs across the Member States, but we note cross-pollination between restrictive practices.

The question of what authority has the power to decide on the legal residence of an EU citizen is not always straightforward. For example, Dutch local authorities are responsible for deciding on entitlement to social assistance, while the immigration authorities (IND) decide on the legality of residence. In some cases, Dutch municipalities have decided themselves that the application for benefits has resulted in the loss of the right to reside and therefore have not provided any social assistance. The Central Appeals Tribunal (the highest court in social security cases) has ruled such practices illegal: municipalities must assume that residence is lawful, as long as the immigration authorities have not taken a decision on it in light of the request for social assistance. However, Dutch municipalities are obliged to report to the IND on the granting of social assistance benefits to EU citizens who reside in the Netherlands for periods between three months and five years. Different practices exist in Belgium, where the immigration authorities prefer to deny the existence of a right to reside in the first place, since the burden of proving the existence of the right is on the EU citizen (Valcke, 2020). This allows them to escape the obligation to perform an individual assessment of the person's individual circumstances to show that s/he has become an unreasonable burden. ²⁵

Applying for social benefits puts the EU citizen on the radar of the local administration in charge of benefits, but increasingly also on the radar of the immigration authorities. This development carries with it the possibility of double exclusion, from welfare and from residence. Belgium and the Netherlands have a well-established system of close cooperation between the social assistance authorities and the immigration authorities. For example, in Belgium, the Immigration Office receives monthly data from the Belgian institutions which provide social security and social assistance benefits with details of all EU citizens who claim benefits. Although the Immigration Office claims that it carries out an individual investigation in each case, the verification of the existence of a right of residence appears to be carried out systematically in respect of all EU citizens and family members who claim benefits in Belgium. ²⁶ This practice of using systematic data transfer arrangements is criticised as incompatible with Article 14(2) of Directive 2004/38 that prohibits the systematic verification of the right to reside (Bailleux et al., 2015; Myria, 2016). ²⁷

The emphasis on more systematic control of the situation of all EU citizens who ask for social assistance occurs in other EU States, too (Austria, Denmark, Germany). Such verification is made possible by the introduction of an information obligation for welfare authorities and in some cases the interlinking of databases. For example, the Austrian federal legislation that excludes EU citizens from social assistance also introduces a mandatory obligation for local authorities to consult the migration authorities in all cases to establish if the EU citizen has a right to receive social assistance. The compulsory involvement of the migration authorities in each individual case seems to contradict Article 14(2) of Directive 2004/38. Even if a particular person has received a ‘confirmation of registration’ (‘Anmeldebescheinigung’, which is a declaratory confirmation of legal residence for Union citizens) or the right of residence is for other reasons not in doubt - for example, if the applicant is a worker who has a right to receive a supplementary payment - social assistance may only be granted after the migration authorities have been consulted. This systematic verification operates as an additional burden, which causes delays in the procedure of obtaining social assistance that does not affect Austrian citizens.

The Danish immigration authorities have wide access to obtain information from other authorities and registers and there is an obligation to report social assistance applications from EU citizens to the immigration authorities. ²⁸ Additionally, Denmark has considered the introduction of legislative powers that would allow an IT-generated list of EU citizens on cash benefits to be produced every month by the Agency for International Recruitment and Integration (SIRI). Such a list would affect EU workers who receive benefits: the fact of being on the list, combined with concrete information that raises reasonable doubts about the working status of the person concerned, constitutes sufficient ground to single them out for individual control.

In Germany the exchange of data between immigration and social benefit authorities has improved. Since 2017 the immigration authorities must be informed about the receipt of social benefits in cases where benefits are applied after five years of habitual residence. The welfare authorities have access to the Central Register for Foreigners and can check whether the applicant has lost the right of residence. Problems can arise because to obtain social benefits, five years of habitual residence are sufficient, unless the immigration authority has established that no right to reside exists or the right was lost. However, in cases where there are five years of habitual residence but no EU right of permanent residence, the immigration authority can check whether there is a right of free movement and can eventually terminate residence.

4.3. Sufficient resources, social assistance, and residence

The fact that an EU citizen fails to meet the conditions of Article 7 of Directive 2004/38 (having sufficient resources and comprehensive medical insurance) usually comes to the attention of the immigration authorities when the EU citizen claims social assistance or attracts the attention of the authorities in another way (e.g., causing nuisance, committing petty crimes or sleeping rough). National immigration authorities can terminate the right of residence of an EU citizen who does not or no longer meets the conditions of Article 7 Directive 2004/38, either because s/he has no resources or because s/he has become an unreasonable burden on the social assistance system. Formally, in most states this termination must be done after an individual assessment considering the circumstances of the EU citizen. The systematic verification of all EU citizens claiming benefits described in section 4.2 co-exists with the requirement for individual assessment.

The national replies to our questionnaire highlight that the focus of verification is the condition of having sufficient resources and the existence of requests for social benefits. For example, in Belgium termination of the right to reside will very much depend upon whether the EU citizen has claimed any form of social assistance, which will usually trigger a review of their situation. This may then lead to a formal investigation by the Immigration Office, whereby an official letter will be sent to the EU citizen informing them that the Immigration Office is considering terminating their right of residence and asking them to provide evidence which demonstrates they continue to have a right of residence. The EU citizen has two weeks to respond unless a longer period has been granted by the Immigration Office. ²⁹ German immigration authorities must generally assume that EU citizens meet the requirements for freedom of movement, so that the submission of relevant documents to substantiate the right to freedom of movement can only be demanded if there are doubts about their presentation. ³⁰ In addition, the authorities may establish whether the requirements are or continue to be met for specific reasons, such as when non-employed EU citizens or their family members want to claim a social assistance benefit. ³¹

One consequence of the termination of the right to reside is that the EU citizen should leave the territory of the host state, either voluntarily or forcibly (expulsion). On this point, state practice varies. There are states where expulsion on grounds other than public order hardly ever happens, such as Italy, Spain or Sweden. However, Belgian practices are completely different. Until October 2017, any decision refusing, terminating or withdrawing residence rights was systematically accompanied by an order to leave the territory. ³² However, following a ruling of the Belgian Council of State, ³³ the Immigration Office issued an instruction to municipalities informing them that an order to leave the territory should no longer be issued in respect of any decision taken to refuse or terminate the residence rights of EU citizens and their family members until the 30-day deadline for appealing such a decision has passed. ³⁴ Given the limited resources of the Immigration Office, since 2019 priority has been given to the files of EU citizens who are suspected of being a burden on the social assistance system, ³⁵ constituting a threat to the public order, or having engaged in fraud. Where an expulsion order is issued, in the 30-day period set for leaving the territory the EU citizen can be subjected to precautionary measures to prevent escape, such as detention. ³⁶

The French authorities terminate the right of residence of EU citizens who no longer justify any right to residence, or whose stay constitutes an abuse of rights. French authorities consider abuse to include renewing stays of less than three months with the aim of remaining in the country when the conditions required for a longer stay are not met, as well as remaining in France with the essential aim of benefiting from the social assistance system. Usually, a removal order is also issued. The French authorities take a wide view of the situations in which EU/EEA citizens can be expelled. The assumption that the EU citizen may one day benefit from social assistance is considered sufficient ground for expulsion. This practice has been approved by the Conseil d’Etat in an opinion of 26 November 2008. ³⁷ De jure, EU citizens can be expelled on grounds of ‘unreasonable burden’. De facto, migration authorities only initiate such measures against nationals of two Member States, Romania and Bulgaria, while nationals of the remaining Member States are rarely subject to such measures (Heindlmaier, 2020: 144).

Unlike the French situation where the courts have upheld restrictive administrative practices, the Dutch Council of State has overturned decisions of the immigration authorities (IND) terminating residence without performing an individual assessment. The legal ground justifying this interpretation is that in the Dutch legal framework, an administrative decision terminating the right to reside of an EU citizen is also an expulsion measure in the sense of Directive 2004/38, which requires an individual assessment. The rulings that clarified this issue concerned a Romanian and a Polish citizen, respectively, who had never had sufficient means of subsistence and who were both homeless. The Romanian had applied for a social assistance benefit, but the Polish citizen had not. The Council of State's insistence on the need for individual assessment will also impact cases of EU citizens who have not met the residence conditions continuously, but only during certain periods of time. In such cases, too, there has often been no balancing of interests because the IND simply has stated that there is no right of residence, notwithstanding the rules in the administrative guidelines. ³⁸

Another consequence of applying for social assistance is that the acquisition of the right of permanent residence is interrupted. In some states (Austria, Denmark, France, Italy, Spain) we can speak of a restrictive interpretation of the rules applicable to the acquisition of the right of permanent residence in the case of economically inactive EU citizens and citizens who at some point become unemployed. In France and Spain, courts have been asked to clarify the conditions for the acquisition of permanent residence by economically inactive and EU citizens with marginal employment. The Danish Immigration Appeals Board has ruled that the continuity of the five-year period of legal residence is interrupted if the applicant receives social cash benefits while residing as a self-supporting person whose right to reside is conditional upon them not becoming a burden on the social assistance system. ³⁹

5. Concluding remarks

The national practices presented above are illustrative of the struggle to create transnational social rights legitimated by EU citizenship. Struggles over equality and access to the welfare state are essentially about power, which legally is expressed as a state's sovereign right to decide on the distribution of resources. By becoming part of the EU, the Member States have agreed to pool their sovereignty and accept (some) EU level intervention in national policy areas, including social and migration policy. We suggest that social rights are sites of power struggles to redefine EU citizenship administratively and in opposition to the constitutional revolution introduced by the CJEU in Martinez Sala, whereby the source of the EU citizen's legal presence in a host state is irrelevant in light of her constitutional status as EU citizen. The three developments distilled from our data – cementing exclusion from social assistance, interlinking bureaucracies and systematic verification, and the fragile relationship between residence and social assistance – can be seen as consequences of the fight to reverse CJEU's initial stance on EU citizenship as a legitimate source of social rights for economically inactive EU citizens. National legislators and administrations have experimented with various forms of legal and administrative resistance to CJEU jurisprudence (Mantu and Minderhoud, 2019; Shaw, 2015). This is reflected in the cases referred to the CJEU, which eventually led to its stance on legal residence as the source of legitimacy for giving EU citizens access to social rights in a host state.

Our data show that power struggles go further than a simple dichotomy between national and EU levels (see also Seeleib-Kaiser, 2022). The dynamic between the national and EU levels is one dimension of a much more complex process. Power struggles over EU citizens and social rights also take place amongst different powers – legislative, administrative and judicial - and such struggles are superimposed over the national-EU level dynamic. In Germany the legislator sought to exclude economically inactive EU citizens from social assistance while social courts sought to find solutions relying on German constitutional law to award a minimum of assistance. Dutch courts have stressed the need for individual assessment before terminating the residence rights of EU citizens and have sought to maintain some level of separation between welfare and immigration authorities. In several countries we see precisely the blurring between immigration and welfare authorities and their functions by the introduction of a legal obligation to consult with the immigration authorities prior to awarding social benefits. The latter trend captures a different type of power struggle, this time between different parts of the administration – internal ministries with responsibility for migration control, and welfare authorities that are usually part of social ministries. These different parts of the administration operate according to different logics. In some Member States immigration officers have sought to increase their authority over officers of the departments of social affairs, making use of the more restrictive case law of the CJEU in this area. In those states where the legislative branch has intervened, it has done so in favour of the internal ministries that seek to maximise control over foreigners’ presence within the state territory.

If the fundamental status of the EU citizens was a principle beyond doubt in EU law in the first decade of this century, we have seen a change of perspective and approach in the second decade. From a legal perspective, EU citizens who move to another Member State cannot rely on an expansive notion of social rights anymore. The increasing lack of access to social assistance noted in earlier reports is extrapolated when national legislators and administrators increasingly seek to reserve the assets of the welfare state for their own citizens. Even where residual forms of social assistance are still possible for EU citizens who do not meet EU residence requirements, such assistance is precarious and has negative repercussions for their right of residence. Attempts to legally reduce access to social rights offer a contrasting view to sociological studies that document much stronger levels of transnational solidarity within the EU and among EU citizens than previously expected (Ferrera and Burelli, 2019). It remains to be seen whether, in the future, these higher levels of transnational solidarity will generate political and legal changes and result in a return to an expansive interpretation of the social rights of EU citizens.

What our legal analysis captures is the reconfiguration of EU social rights in the context of power struggles to define the legal scope of EU citizenship rights and refashion it in the logic of migration control where the default position is that the administration has a right to refuse applications unless migrants can justify their claims. This is a departure from the position under EU citizenship law where the EU citizen is entitled to equal treatment, save for exceptions where the state must justify exclusion from equal treatment. The move to systematic control of all applicants for social assistance suggests a system underpinned by a logic of generalised suspicion towards EU citizens where equal treatment is the exception and not the norm. Such a system is problematic in light of Article 14(2) of Directive 2004/38, which allows the Member States to verify the right to reside only where there is reasonable doubt that the applicant fulfils the criteria. In Commission v UK the Court ruled that the verification of the right to reside as part of an application for social benefits must respect the conditions of Article 14(2). ⁴⁰ Among the many ills of this judgment, what stands out for the purposes of our analysis is the lack of any guidance on how to decide what are permitted checks and what is systemic verification (O’Brien, 2017: 228). Ultimately, the Court's silence is used by some Member States to push the boundaries of what is legally acceptable, while in the process depriving European citizenship of its social rights dimension.