Social security coordination and circular migration within the EU: A Case Study on the pension and unemployment entitlements of Eastern European mobile care workers in Austria

Abstract

This paper examines the implications of circular migration within the EU for access to social rights, using live-in care workers commuting between Austria and Eastern Europe as a case study. While mobile workers are formally covered by EU social security coordination, the existing regulations fall short of addressing the specific challenges posed by circular migration. The paper explores how legal frameworks in Austria – particularly the Home Care Act and the care allowance system – promote circular migration. It then examines how such migration patterns complicate access to social rights.

Circular migrants do not fit neatly into the existing allocation criteria for unemployment benefits within EU coordination, such as the distinction made between workers who return home and those who remain in the employer state. For live-in care workers, termination of employment results in a loss of residence in Austria, they are not integrated into their home labour market, and depend on agencies to seek cross-border jobs. These specific vulnerabilities are not addressed in the existing coordination rules. With regard to pension entitlement, the paper focuses on the ‘Ausgleichszulage’, a non-contributory benefit for low-income retirees, which is restricted to Austrian residents. Although permitted under EU law, this residency requirement effectively excludes circular migrants, who typically retire in their country of origin. ¹

Introduction

Across Europe, formerly unpaid care work is increasingly being outsourced to private service providers, often using workers in precarious employment in the context of migration (Pavlou, 2021; Van Hooren et al., 2019). This phenomenon has famously been described by Hochschild (2000) as a ‘global care chain’. The term refers to the migration of women from the Global South to the care sectors of wealthier countries. They provide for their families back home by sending remittances, take on domestic duties in dual-income households abroad, and fill gaps in the labour market of Global North countries. Similar developments have been observed in the context of European migration (Pavlou, 2021), particularly from Eastern to Western Countries (Lutz and Palenga-Möllenbeck, 2012). The emerging global old-age care industry can be seen as a specific form of global care chain. It relies on intermediaries recruiting, skilling and placing migrant care workers in different spheres of the receiving country's care system (Horn et al., 2021). Agencies for live-in care workers have become powerful players in reshaping European welfare systems, global care chains and working conditions (Aulenbacher et al., 2024). In Austria, as in the other so-called ‘family care’ regimes across the European South and German-speaking countries, family care is still the most important pillar of elder care (Nagl-Cupal, 2018). However, a trend towards the ‘migrant in the family’ model is emerging, where migrant domestic care workers take on the care of elderly people in private households (Van Hooren et al., 2019: 367). Migrants form an important part of the EU's long-term care workforce, and many Western EU states rely heavily on live-in care provision models, which are nearly entirely based on foreign labour (Eurofound, 2020: 26). While most migrant workers in the European care sector are third country nationals, substantial numbers are intra-EU migrants, mostly from the East (Eurofound, 2020). ² Intra-European cross-border work is particularly common where ‘differences in working conditions and wages are large between bordering areas’ (Katona and Zacharenko, 2021: 4). Here, care migration often takes the form of temporary and circular migration, which also correlates with the feminisation of migration (Triandafyllidou and Marchetti, 2013). The Austrian care sector is a typical example of these developments, as it relies heavily on migrant work from Eastern European countries to tackle the growing demand for long-term care.

This paper addresses the research question of how these circular labour migration patterns are shaped by the Austrian and European legal frameworks and how they impact the access to social benefits for circular migrants. In doing so, it takes a close look at a particularly vulnerable sub-group of temporary migrants, namely circular care migrants from Eastern Europe to Austria. Specific to the Austrian case are rather short working cycles, which are due to geographical as well as to legal factors. Austria shares borders with many of the ‘newer’ EU Member States to the East. Starting with the EU expansions of 2004 and 2007, the Austrian care market has become more and more dependent on ‘cheap’ labour from Eastern Europe. ³ This paper focuses on intra-EU movements, yet it uses the term ‘circular migration’ to highlight the specificities of the typical arrangements for domestic care work done in Austria by Eastern European workers.

It has long been noted that temporary migration and guest worker programmes create ‘perfect immigrants’, as host States and employers do not have to plan their integration and social support (Hahamovitch, 2003: 73). Correspondingly, temporary labour migrants have been identified as an ‘acutely vulnerable worker group’ (Mantouvalou, 2023: 29). This analysis can partly be extended to circular migrants. Although the temporal dimension varies, strong ties to the country of origin, and in many cases a final return upon retirement, can result in the loss of social security entitlements that depend on duration of stay and residence. Therefore, it seems obvious, but also highly problematic, that States have an interest in establishing temporary or circular rather than permanent migration. In their report on the social security of short-term labour migration of third country nationals in the EU, Bogoeski and Rasnača mapped the regulatory approaches of 26 States. Although most do not rule out social protection for temporary migrants, various exceptions and restrictions counteract this general rule almost everywhere. While some exclusions are justified, their findings suggest that the vulnerability of temporary migrants is not merely an unfortunate side-effect, but is rather an integral part of the system (Bogoeski and Rasnača, 2023: 162). With the predominately female care workforce, there is an additional gender dimension, and their exclusion from certain benefits might constitute indirect gender discrimination.

The paper will show how Austrian legislation has created a framework that enables and promotes circular migration patterns in the care sector. It explores how the typical circular migration patterns between Austria and Eastern Europe fit into the European coordination rules regarding social security. Methodologically, it builds on a doctrinal analysis of the relevant Austrian norms and accompanying material, such as explanatory notes from parliamentary debates and the relevant European legislation. It focuses on allocation criteria regarding social security entitlement for circular migrants, making general comparisons with permanent migration, and, where more fitting, with other forms of temporary migration, such as cross-border work. While focusing on an explanatory reading of the legal frameworks, it also follows a ‘law and society’ approach in that it aims to understand the legal norms in their wider societal context.

Focusing on Austria, the paper also points out blind spots in the coordination system regarding circular migration in the EU at large. Although European coordination rules apply to intra-EU Migration, problems arise regarding access of circular migrants to social rights (Triandafyllidou and Marchetti, 2013). The exclusion of third country migrants from social security systems has been raised as an issue in the literature (see, for example, EJSS Special Issue 15(2); Mantouvalou, 2023), and a debate on the limitations of the coordination system regarding intra-EU migrants is emerging (Verschueren, 2020; EJSS Special Issue 22(2)). An East-West divide plays a part in how intra-EU migration is experienced, especially regarding actual access to social rights (Lechke and Weiss, 2023; Pennings, 2020). It has been stated that EU free movement is becoming precarious intra-EU migration in the light of changing core-periphery relations in Europe (Bermudez and Oso, 2020). Verschueren (2020) has pointed to several examples of the coordination system's failure to prevent the loss of entitlement to social benefits, among them non-standard work, the limited rights of economically inactive migrants and waiting periods for newcomers. It has also been discussed how atypical work fits into the coordination rules regarding unemployment (Mišič and Strban, 2024). Moreover, the question of residence-based social security in the light of free movement has rightly stirred scholarly interest (EJSS Special Issue 18(2), 2016; Mantu and Minderhoud, 2023), as has the exclusion of minimum subsistence benefits from the export obligation (Vonk, 2020). The Austrian example speaks to a number of the above-mentioned challenges, and this paper contributes to the literature by discussing problems that have been identified theoretically, in the light of a specific case.

The consideration of migrant domestic care workers’ access to the pension bonus (‘Ausgleichszulage’) in Austria adds to the discussion on residence clauses for special non-contributory benefits, and pinpoints problematic results of such clauses beyond the trope of ‘social tourism’. The issue of unemployment benefits for care workers contributes to the literature regarding unemployment and cross-border work, by highlighting the involvement of intermediaries such as private placement agencies. The CJEU has already examined the role of intermediaries, specifically of posting agencies in cross-border cases. ⁴ This case law may be relevant regarding the role of intermediaries in the job-seeking process of circular migrants.

Before turning to these specific challenges, the paper first gives an overview of the Austrian context and the regulatory basis for domestic care work. It describes how the labour law regulation of domestic care work and the accompanying social security measures promote circular migration patterns. It then turns to the question of how these migration patterns affect the social security benefits of domestic care workers, focusing on pension and unemployment entitlements. In conclusion, the paper aims to make two points: to show how the law promotes circular migration, and to describe how circular migration mediates access to the law.

Circular care migration between Austria and Eastern Europe

In 2024, 57,634 self-employed personal care workers and 912 private agencies for care work were registered with the Austrian Chamber of Commerce (Wirtschaftskammer, 2024). More than 90% of these care workers are women, the majority of whom come from Romania and Slovakia (Aulenbacher et al., 2021). They spend work cycles of several weeks in the private households of their clients, between which times they return home for similarly long periods. In two-thirds of the cases, two care workers alternate (Leiblfinger and Prieler, 2018: 8).

These migration patterns can be described as circular. The term ‘circular migration’ indicates that people travel repeatedly to the destination country for specific work periods, but the centre of their lives remains in their country of origin, to which they return in-between. Triandafyllidou names four dimensions which characterise emerging patterns of circular migration in Europe: space, time, repetition and scope (2010: 14–15). The spatial dimension refers to the crossing of a border. The temporal dimension points to stays of limited duration, which can range from a few weeks to several years, but does not include stays of a decade or more. In terms of repetition, two back-and-forth movements between the country of origin and the destination country are defined as a minimum requirement, although the overall period within which these take place can vary greatly. Last but not least, the dimension of scope refers to the purpose of the migration, which is economic activity. While circular migration has this temporal dimension, it differs from temporary migration. The latter involves one or a few temporary stays and eventually a return which closes the migration cycle, whereas ‘circular migration involves recurrent temporary movements and migrants spend significant periods of their lives in both countries’ (Vankova, 2020: 10). Rocca and Deverson (2024: 274) have identified ‘the possibility to foresee an “end date” as a marker of temporary labour migration’, and suggest that the specifics of circular migration should be considered in further research. In this paper, the fact, in particular, that circular migrants have close ties to both countries is identified as a challenge to legal regulations which assume that the centre of a person’s life can be located in just one country and can serve as a marker for the allocation of social security entitlements.

Most Eastern European care workers in Austria do not aim for permanent migration (Österle and Bauer, 2016: 206). In many cases, they themselves initiate their circular migration patterns. In the context of the feminisation of migration, female migrants see it as an advantage to be able to return regularly to their country of origin and thus better reconcile labour migration with their own care obligations (Triandafyllidou and Marchetti, 2013). In interviews with circular care migrants in Italy, Marchetti (2013: 362) found the reconciliation of family life and labour migration to be an important motivation, especially for ‘mature Eastern European women’. While in this case circular migration was actively sought out and promoted by the workers, and not so much demand-driven or incited by the State (Marchetti, 2013: 361), this paper will, in the following section, show how it is clearly State-driven in Austria. Besides personal motivation, migration policies and legal frameworks are decisive for the establishment of circular migration patterns. In particular, EU freedom of movement was crucial to the increase in care migration of women between Eastern and Western European countries (Triandafyllidou and Marchetti, 2013: 340). After the EU enlargements to the East in 2004 and 2007, both Austria and Germany introduced transitional measures that allowed migration for the domestic care sector before other forms of labour migration (Van Hooren et al., 2019: 368).

The Austrian regulatory framework: the Home Care Act 2007 and the Federal Care Allowance Act

Although regulation of household employees has existed in Austria since the 1920s, ⁵ so-called ‘24-hour care work’ has not fallen within its scope due to the typical long working hours. The live-in care sector was largely informal until 2007 (Kretschmann, 2010), when the Home Care Act came into force. ⁶ This Act was designed to legalise the already common practice of live-in arrangements with circular migrants from neighbouring countries. It also states that live-in care work for elderly people may be provided either based on an employment contract or in the form of self-employment.

For employed domestic care workers, the second section of the Home Care Act contains specific working time regulations that differ from general Austrian labour law – including from the conventional regulations for household employees. It allows longer working hours and – in contradiction to the Working Time Directive ⁷ – defines standby-time as unpaid. ⁸ While the entire Home Care Act is worthy of closer examination to consider its compatibility with EU law, it would exceed the scope of this paper to go into further detail. Regarding the question of circular migration, it is the Act's scope that is of interest.

The Home Care Act explicitly refers to work cycles of two weeks and to a live-in setting: the provisions of the second section only apply if the worker is accepted into the household for the duration of a work period of 14 days, and if an uninterrupted leave period of at least the same duration is granted after each work period. ⁹ These requirements are informed by the practice, from before the legislation, of live-in care provided by circular migrants from Eastern European countries. ¹⁰

As the Home Care Act also allows domestic care work to be conducted by self-employed workers, a specific ‘personal care’ trade licence was created as an accompanying measure in 2007. ¹¹ In 2015, an additional ‘organisation of personal care’ trade licence was created. ¹² This trade licence covers the placement of self-employed care workers and divides the actual care work from the organisational side, which is now left to private agencies. ¹³

Self-employment with the involvement of an agency is by far the most common arrangement in Austria. Ten years after introduction, fewer than 1% of care arrangements were employment relationships (Famira-Mühlberger, 2017: 24). The widespread involvement of agencies will be considered again later on, when we consider its relevance for the coordination of unemployment benefits. And while this is not the focus of this paper, it should be mentioned that in most cases there is a suspicion of bogus self-employment (pars pro toto: Kaltenegger, 2018; Sagmeister and Matei, 2021). In many cases, the agencies provide the service contracts and set the payment rates, and often include clauses that bestow on themselves the responsibility for deducting social security payments. Although care workers are formally self-employed, these circumstances point to bogus self-employment.

In 2007, to supplement the Home Care Act further, a subsidy was introduced specifically for the newly regulated live-in care arrangements. If a person's care needs reach a certain level, and if their monthly income does not exceed € 2,500, they are entitled to a subsidy to take on a live-in care worker. ¹⁴ Eligibility is conditional on the qualifications of the worker and the applicability of the Home Care Act, which entails the rotational work cycle system and a live-in requirement. This subsidy was introduced with a reform of the Austrian Federal Care Allowance Act (BPGG), which originally came into force in 1993. The Act regulates access to long-term care allowances due to age, disability or sickness. It is intended to secure the necessary assistance for persons in need of care, thereby improving their possibilities to lead a self-determined life and have their individual needs met. ¹⁵ The amount of the allowance corresponds to seven levels of care needs, regardless of income and assets.

Both subsidies – the long-term care allowance as well as the additional subsidy for live-in care work – take the form of ‘cash-for-care’ measures. This reflects a European trend: subsidies for elder care are increasingly taking the form of ‘cash-for-care’ or tax relief measures, instead of benefits directly offered by public providers, such as the operation of care homes. Individual allowances are then used to purchase care services from private providers on the market (Van Hooren et al., 2019: 365). ‘Cash for care’ is often commended for fostering free choice. As mentioned above, self-determination of the recipients is the declared purpose of the Austrian Care Allowance Act. Yet, the increase in ‘cash-for-care’ measures from the 1990s onwards must be seen in correlation with a trend towards privatisation of the care sector across Europe, with the related risks (Da Roit et al., 2007; Van Hooren et al., 2019: 365). One major disadvantage is that there is little control over how benefits are spent and how privately provided care services are structured (Van Hooren et al., 2019: 366). Although in Austria, the statutory eligibility requirements set minimum standards, namely the qualifications of the care worker, the subsidy still gives an incentive for those in need of care to keep the costs of care work low. Families are left to spend their cash allowance on the private market and will try to get their money's worth. Hiring a ‘self-employed’ worker is cheaper than establishing a proper employment relationship, which entails higher social security and tax costs. Together with the availability of relatively cheap labour in neighbouring countries, the described measures have been found to promote the ‘migrant in the family’ care model in Austria (Österle and Bauer, 2012: 270). Private agencies which offer cheap care through the recruitment of ‘self-employed’ migrant workers on the basis of the Home Care Act dominate the market.

In summary, the legal framework facilitates circular care migration between Austria and Eastern Europe. The Home Care Act only applies to live-in arrangements with a two-week work cycle rotation system. It creates a special regulatory regime which affects mainly migrants and exposes them to comparatively longer working hours and poorer working conditions. And the accompanying ‘cash-for-care’ benefit gives an incentive for care recipients to rely on private agencies recruiting ‘self-employed’ care workers from Eastern European countries. The paper now turns to the question of how the typical circular migration patterns affect workers’ access to social rights, specifically their pension and unemployment entitlements.

The European Regulation on the coordination of social security systems: challenges regarding circular care migration within the EU

Within the EU, coordination rules are in place to ensure access to social security for mobile workers. However, there are protective gaps when it comes to the specific circumstances of circular migration. Transnational care arrangements can pose difficulties despite existing legislation. Barbara Bucher has highlighted some loopholes regarding the posting of care workers by foreign agencies to German households (Bucher, 2018). Care workers from Eastern EU countries were also harshly affected by the indexation of family allowances in Austria, which was found, in 2022, to contradict EU law (Kovács, 2023). ¹⁶ In the meantime, the indexation has been abolished, and a legal basis has been created for back payments of family allowance amounts. ¹⁷ Yet, the Austrian case highlights another set of challenges arising in the context of circular intra-EU migration, despite the applicability of the European framework for the coordination of social rights. The following sections discuss access of circular care migrants to pension benefits – and the particular impact on Eastern European care workers of a residence clause regarding the so-called ‘Ausgleichszulage’ – and to unemployment benefits.

The central norm for determining the applicable social security system in cross-border cases within the European Union is Article 48 TFEU. This requires the European Parliament and the Council to adopt measures in the field of social security that are necessary to establish the free movement of workers, and to introduce a system that ensures that mobile workers and their dependants can add up all their entitlements under the various national laws for the acquisition and maintenance of social security benefits. The corresponding coordination rules can be found in Regulation (EC) 883/2004 ¹⁸ and (EC) 987/2009. ¹⁹ The applicable national legislation is determined by Title II of Regulation (EC) 883/2004. Article 11(3)(a) establishes the principle of lex loci laboris, according to which a person who is employed or self-employed in a Member State is subject to the legislation of that Member State. Residence, on the other hand, is not a decisive factor. In a situation of circular migration, the fact that the person’s centre of life is not clearly settled within one Member State and that the migration is neither permanent nor merely temporary poses challenges to the existing allocation rules.

Pensions

The EU coordination rules for pensions can be found in Articles 50–60 of Regulation (EC) No 883/2004. They ensure that insurance periods completed in different Member States are added together and considered for the calculation of entitlements. Mobile care workers often work in Austria for decades; thus, they complete insurance periods and acquire pension entitlements. Insurance periods from gainful employment in other Member States are also added.

Austria is a strong welfare state with a compulsory pension insurance system. Domestic care workers pay social security contributions and acquire pension entitlements under the General Insurance Act ²⁰ if they are employees or – more frequently – under the Trade Insurance Act ²¹ if they are self-employed. The pension insurance contribution is 22.8% of the contribution basis, i.e., loosely speaking, one's wage. However, while for employees, 12.55% is covered by the employer's contribution, self-employed persons shoulder most of the contribution themselves. The self-employed person pays 18.5% directly, ²² while the remaining 4.3% is covered through a tax revenue. Notwithstanding the compulsory insurance, pension entitlements of domestic care workers are usually very low. The pension gap between men and women in Austria is large: 41.1% in 2022 (Statistik Austria, 2023). At the time of introduction of the gradual adjustment of the retirement age for women in 2024, ²³ the Chamber of Labour commissioned a study to explore the reasons for this large gap. It was found that shorter retirement periods due to the lower retirement age, high part-time employment and career interruptions due to unpaid care work are important factors. However, low wages and gaps between the termination of employment and the actual beginning of retirement in female-dominated sectors were found to be just as decisive (Mayrhuber et al., 2021: 16). The last two points in particular strongly affect workers in health care, elder care and cleaning work. In these sectors, work is typically strenuous emotionally as well as physically. The Austrian Work Climate Index 2020 found that almost three-quarters of employees in elder care and six out of ten nursing staff in medical care do not consider it probable that they will still be able to do their job until they reach the retirement age of 60 or 65 (Chamber of Labour Upper Austria, 2020). This results in periods of unemployment in old age and correspondingly lower pension entitlements.

To compensate for low pensions, a special bonus (‘Ausgleichszulage’) is available in Austria. It is financed from general tax revenue and tops up pension entitlements which, when added to any other income, are below the statutory reference rate. It is only available to residents of Austria. ²⁴ This residence clause is justified, as the CJEU found in the case Skalka (Windischgraetz, 2024: para 17–19). ²⁵ Art 3 (3) in conjunction with Art 70 of Regulation (EC) 883/2004 states that special non-contributory cash benefits are subject to coordination, but, if listed in Annex X, they are exempt from the export obligation. Despite its close link to a social security measure, the ‘Ausgleichszulage’ is tied to the economic situation in Austria, as the amount takes into account the standard of living. The benefit would lose its significance if it were to be granted elsewhere (Pfeil, 2005).

The place of non-contributory benefits such as the ‘Ausgleichszulage’ in EU law and coordination is controversial (Vonk, 2020). Two scenarios are mainly discussed as relevant. The first concerns the question of access to benefits granted by a State in which the recipient does not reside, or, more usually, no longer resides (Rebhahn, 2013). This could be a citizen choosing to spend their retirement abroad, or a mobile worker who spends their retirement in their (EU) country of origin (Resch, 2000), such as a circular care migrant. Most circular migrant care workers spend their retirement in their country of origin, and as a result are not entitled to the ‘Ausgleichszulage’. The second scenario highlights the question of access to benefits in a State to which an EU citizen has moved. This relates to the ‘fear of social tourism’, the fear of having to grant benefits to new residents without any economic activity (Erhag, 2016: 94–95). ²⁶ While this is a recurring topic in the Austrian literature as well as in Austrian case law (Pfeil, 2005), ²⁷ it does not apply to the situation of care workers. Most care workers have an original residence status as EU citizens due to gainful employment ²⁸ ; if they remain in Austria after retiring, their entitlement to the ‘Ausgleichszulage’ is hardly disputed. The Austrian Supreme Court found that a former circular migrant care worker and resident of Vienna was entitled to the ‘Ausgleichszulage’, thus settling questions regarding habitual residence in the context of circular migration. Habitual residence requires five years spent in Austria, but not without interruption. An annual period of least six months for five years sufficed, ²⁹ a criterion which is met by most circular care migrants. In practice, problems may arise proving residence, especially if care workers have been posted with different households over the years.

In summary, circular migrants who spend their retirement in their country of origin are not entitled to the ‘Ausgleichszulage’, a benefit to compensate for their low pension entitlements. If they chose to remain in Austria, they would be entitled. As has been argued above, the Home Care Act strongly encourages circular migration. The loss of access to the ‘Ausgleichszulage’, however, counteracts this purpose. In other words, the free movement of workers within the European Union, granted by Directive 2004/38, is thus limited, as the exercise of this right results in a social disadvantage. At the same time, the circular migration patterns are chosen by workers for a reason. They are often chosen by women hoping that circular migration is more compatible with care responsibilities in their home country. As Marchetti has critically observed, workers ‘are contributing to the precarization of their own working conditions’ (Marchetti, 2013: 362), when they choose circular migration patterns. However, in the Austrian case it is no longer solely the workers’ choice – the legal framework also promotes circular migration. It is the Austrian State that benefits from the residency clause and the exclusion of these migrant workers from access to certain social benefits. It is rather unlikely that a person will decide to settle in Austria permanently for their retirement if they did not settle there during active employment. This reflects the observation that temporary migrants are ‘perfect immigrants’ (Hahamovitch, 2003), in the sense that they are not eligible for certain benefits. In the case of the ‘Ausgleichszulage’, significantly more women than men are affected. Women receive lower pensions due to structural gender inequalities such as lower wages in female sectors, etc. Accordingly, most recipients of the ‘Ausgleichszulage’ are female: 67.1% in 2022 (Statistik Austria, 2023). Therefore, the export ban could constitute indirect discrimination on grounds of gender (Resch, 2000: 370).

Unemployment

Unemployment benefits are another rather difficult topic for coordination. They are central to the pending reform of the coordination rules, ³⁰ on which agreement has still not been reached with the European Parliament. Mistrust is based on the assumption that a State will have little interest in supervising jobseekers, if it is not paying for their unemployment benefits (Cornelissen, 2007). This mistrust between States also reflects an East-West divide (Pennings, 2020). The coordination rules tend to be disadvantageous for benefit recipients living in a country with low unemployment benefits who last worked in a country with higher benefits (Pennings, 2020). This is the case for mobile care workers in Austria.

It must further be taken into consideration that the mobile worker’s place of work is also their place of residence, and this can affect access to unemployment benefits. According to the Austrian Home Care Act, in cases where the care recipient is also the employer, their death results in immediate termination of employment. This then leads to loss of residence for the worker and leaves them in a highly vulnerable position, not least regarding the allocation of unemployment benefits, as it makes it difficult for jobseekers to remain in Austria. Whether one remains in the employer State or returns to the country of residence is decisive for the allocation of unemployment benefits in cross-border cases.

Before addressing these difficulties and the respective case law, a brief overview of the Austrian legislation is called for. As with pension insurance, employees in Austria are subject to compulsory unemployment insurance pursuant to the Austrian Unemployment Insurance Act (Arbeitslosenversicherungsgesetz, AlVG). ³¹ When a person applies for benefits for the first time, a period of 52 weeks of employment within the last 24 months is required. Unemployment benefits generally amount to 55% of the previous net income. There are some supplements available, such as for child support. While the required period of employment can be met by most care workers in Austria, in general long consecutive waiting periods can pose problems to circular migrants.

Turning to the coordination rules, Chapter 6 of Regulation (EC) 883/2004 generally applies the lex loci laboris principle in cases of unemployment, and makes the State of last employment competent. Article 65 contains an exception for frontier workers, i.e. if the country of employment and the country of residence are different, which could be relevant for circular migration. Frontier workers must make themselves available to the labour market administration of the country of residence, as it is assumed that they are most likely to be integrated into the labour market there. ³² However, the term ‘frontier worker’ only includes workers who live in a country other than the country of employment and who return regularly and frequently, at least once a week. ³³ Typically, domestic care workers in Austria are therefore not frontier workers. The Home Care Act calls for two-week long work cycles, and the frequency of return is therefore less than once a week.

Another provision for mobile workers fits the case of circular care migrants better and introduces a right to choose the jurisdiction of the country of employment. ³⁴ An unemployed person, other than a frontier worker, who does not return to their State of residence, shall make themselves available to the employment services in the State to whose legislation they were last subject. ³⁵ The crucial question for allocation is, then, whether or not the unemployed worker returns to their home country. This point must be assessed on a case-by-case basis. A worker is considered to have returned if their partial (work-related) interests, which were transferred to one Member State upon taking up employment, have been transferred back to the State of residence after the end of employment. This has been debated extensively in the literature as well as by the Court, which found that ‘account should be taken of the length and continuity of residence before the person concerned moved, the length and purpose of his absence, the nature of the occupation found in the other Member State and the intention of the person concerned as it appears from all the circumstances.’ ³⁶ The older case law, on the one hand, highlights the benefit of being able to choose one's home country without having worked there, ³⁷ as it assumes that periods of unemployment will gladly be spent at home. Today, on the other hand, large discrepancies in unemployment benefit levels between Eastern and Western Member States shed a different light on the situation.

The job search of mobile domestic care workers will generally focus on the Austrian labour market, as previous work experience is accompanied by knowledge of the Austrian care system and acquired German language skills. However, increased frequency of return during unemployment and the lack of a place of residence in Austria after termination of the live-in work arrangement suggest a return to the country of residence. Importantly, the peculiarity of domestic care is that the place of residence coincides with the place of work, which is usually lost at the end of the care relationship. This special case does not seem to have been sufficiently considered in Regulation (EC) 883/2004, which can lead to a disadvantageous outcome for the worker. We encounter similar problems in seasonal work, where the place of residence and place of work sometimes coincide. The case of a Hungarian seasonal worker was examined by the Austrian Federal Administrative Court (Bundesverwaltungsgericht, BVwG) ³⁸ in 2007. After losing his seasonal place of work, Austrian jurisdiction was denied due to his return to his country of residence.

How do these two scenarios play out in the case of Austria? If the unemployed worker returns to the country of residence, the law of that country applies. The activity in Austria is fully considered, as if it had been carried out with the same salary as in the country of residence. ³⁹ Still, disadvantages arise in scenarios in which the law of the place of residence contains stricter entitlement conditions and/or a lower or degressive unemployment benefit, which is typical in the context of East-West migration within the EU. In Romania, for example, the basis for calculating unemployment benefit is the Social Reference Indicator (SRI). The SRI is RON 660 / €132.64 (as of April 2024), which corresponds to 75% of the statutory minimum wage. In addition to this basic amount, 3 to 10% of the average gross salary of the last 12 months of contributions is paid, depending on the duration of insurance. ⁴⁰ This means that a worker who has become unemployed is entitled to a lower unemployment benefit when returning to Romania than in Austria. Pursuant to Art 65 (7) of Regulation (EC) No 883/2004, the country of employment reimburses the country of residence for the cost of unemployment benefits for the first three months. The country of residence therefore has lower expenses, and the country of employment also does well, as it only has to reimburse what was actually paid out. Only the employees themselves are worse off. Accordingly, the literature criticises the fact that in the reform of the Regulation, employees were not granted a claim against the country of residence to the amount of the claim against the country of employment (Pennings, 2009: 194).

If a worker does not return to their country of residence and Austria is therefore responsible, they are entitled to unemployment benefits in accordance with the Austrian Unemployment Insurance Act. Here challenges arise regarding residency, if stays in the country of origin occur during the period of unemployment. In circular migration, the person typically retains essential life interests in the country of residence. In the cases we are discussing, the worker often has private care obligations towards relatives in the country of origin. A two-week rotational cycle was an integral part of the worker's routine during active employment, and they might wish to continue this pattern during unemployment. Yet it is questionable whether unemployment benefits can be received during such stays (Bruckner, 2016). According to Article 64 of Regulation (EC) 883/2004, the possibility of exporting unemployment benefit exists to a limited extent. If a worker who was granted benefits by the State of employment pursuant to Art 65(5)(b) for at least four weeks returns to their State of residence, they can receive these benefits for up to three more months. However, residence clauses can be justified, for example, to give the responsible labour market administration the opportunity to carry out spontaneous checks (Windischgraetz, 2024: para 75). This is the case in Austria, where entitlements are suspended during stays abroad, ⁴¹ unless forbearance is granted. The Austrian labour market service (Arbeitsmarktservice, AMS) examines whether a stay abroad is justified, in cases where, for example, the unemployed person goes abroad to demonstrably look for a job, introduce themselves to employers or undergo training, or if there are compelling family reasons such as a wedding or funeral (Sdoutz and Zechner, 2004: para 403). The decision is made on a case-by-case basis and there is no right of appeal. As a result, care workers face a reduction in unemployment benefits if they continue their circular migration patterns during unemployment.

In conclusion, we see that the circular migration patterns of care workers do not fit neatly into the dichotomy between workers who return home, and those who do not. If they return to their State of residence during unemployment, this might merely be because they lack a place of residence in their State of former employment, rather than because they are more likely to find work there. Similar considerations have been expressed regarding frontier workers, whose prospects of work might be better in the country of employment than in their country of residence. The Court has found that if they maintain links with their Member State of last employment so that the ‘prospects of reintegration into working life are greatest in that State, Article 65 of Regulation No 883/2004 must be understood as allowing such a worker to make himself (sic!) available as a supplementary step to the employment services of that State, not with a view to obtaining unemployment benefit in that State but only in order to receive assistance there in finding new employment.’ ⁴² The restriction to the use of job-seeking services and the exclusion from benefits are however not satisfactory from the workers’ perspective. This is not only because of the possible benefit discrepancy, but also because the search for employment in the Austrian care sector is not necessarily easier when the worker is physically in Austria. As agencies play a major part in the recruitment and placement of domestic care workers from Eastern European countries, their role in the job-seeking practices of unemployed care workers must be considered. It is likely that a care worker who has worked with an agency in the past, will turn to the same or another agency to find a new posting. Austrian agencies often cooperate with agencies abroad (Aulenbacher et al., 2021, 75). Therefore, an unemployed care worker might have the best chance of finding employment in the Austrian care sector while residing in, for example, Slovakia. Much research has been conducted on the role of agencies in the recruitment of care migrants (Aulenbacher et al., 2018, 2024; Findlay et al., 2012; Sporton, 2013). It might be relevant to question the legal importance of the involvement of intermediaries in cross-border job seeking procedures when it comes to allocating unemployment benefits. With regard to cross-border posting, the Court said that ‘an undertaking engaged in the making available of labour, although a supplier of services within the meaning of the FEU Treaty, carries on activities which are specifically intended to enable workers to gain access to the labour market of the host Member State’. ⁴³ Therefore, actively looking for work through an agency specialised in providing care workers to the Austrian market could be proof enough of the link with the Austrian labour market to achieve entitlement to unemployment benefits from this State.

Conclusion

Two types of conclusions can be drawn. First, the Austrian case illustrates how national regulation promotes circular migration in the live-in care sector and how this impacts mobile care workers’ access to social rights. Second, the findings raise broader questions about the compatibility of circular migration with EU-level social security coordination.

In Austria, the Home Care Act and accompanying allowances actively encourage circular migration. While many migrant women choose circular arrangements to maintain ties with their families abroad, the legal framework institutionalises and incentivises this model. The inclusion of live-in care and two-week shifts in the scope of the Act, and the introduction of a care bonus under the Federal Care Allowance Act, specifically promote such migration patterns. These measures foster a model that disproportionately affects migrants, exposing them to long working hours, poor working conditions and dependence on private agencies that increasingly structure the care market and its transnational labour flows.

These migration patterns directly affect access to social rights. Although circular care workers in Austria typically fulfill the contribution requirements for pensions, low wages result in low entitlements. The non-contributory Ausgleichszulage (compensatory pension benefit), intended to supplement small pensions, is limited to residents of Austria, excluding many long-term circular migrants who retire to their country of origin. Similarly, unemployment benefits are hard to claim: loss of employment often means loss of residence, making it difficult or even impossible for workers to stay in Austria during unemployment phases. Even when Austria is the competent State, residency clauses restrict benefit export and fail to accommodate the specific mobility patterns of these workers. Moreover, the transnational involvement of recruitment agencies makes attribution of social security responsibilities more complicated.

Altogether, the analysis has shown that mobile workers in circular migration face disadvantages when it comes to accessing social rights, due to the specific time features of their migration. Their centre of life often remains in their country of residence and they are most likely to spend periods of unemployment and their retirement there; for this reason, they are especially affected by limitations on requirements to export certain benefits and by residency clauses. While further research and legislative clarification are needed, the findings offer critical insights.

The paper demonstrates the loss of integration benefits in the context of circular intra-EU migration. While some exclusions from social security for temporary migrants are justified, the literature has argued that their vulnerability is a built-in feature of the coordination system (Bogoeski and Rasnača, 2023: 162). The Austrian case confirms this. The national legal framework promotes circular migration, without the permanence or protection traditionally associated with integration. Circular care migrants in Austria are ‘perfect immigrants’ from the employer State's perspective (Hahamovitch, 2003: 73). Yet, they are not guest workers in the classical sense. Many work in Austria for years, enabled by EU free movement. This specific time factor, and their strong ties to both the country of residence and the employer State, do not fit neatly into the existing allocation mechanisms in Regulation (EC) 883/2004. Their hybrid status as long-term contributors without secure access to benefits calls for a rethinking of allocation rules.

In particular, the involvement of agencies in transnational job-seeking procedures and the specific vulnerability of live-in workers, whose residence depends on their employment, must be addressed in unemployment coordination. Residence requirements for non-contributory pensions, such as the ‘Ausgleichszulage’, should be revisited for long-term circular migrants. Finally, it cannot be ignored that the majority of migrant domestic care workers are women. Future research may be warranted placing the discussion in the context of EU gender equality in social security. Some of the gaps revealed in the social security system, in particular the exclusion from exporting the ‘Ausgleichszulage’, could be challenged as prohibited EU discrimination on the grounds of sex.

Ultimately, the specific temporality and gendered nature of circular migration must be acknowledged – not only in scholarly analysis, but also in the legal frameworks governing social security coordination, to secure the social rights of mobile workers within the EU.