Brexit, the Referendum and the UK Parliament: Some Questions about Sovereignty

Sionaidh Douglas-Scott

So, we have the result of the Referendum, and a majority of voters have voted to leave the EU. A mantra of Leave campaigners seems to have been the desire to ‘take back control’. There has been much talk of sovereignty, although less clarity on what it actually means. However, at its most basic, there are at least three notions of sovereignty that are relevant in the context of Brexit, and they are often confused. The first is parliamentary sovereignty, which is said to have particular resonance in the UK because, due to the vagaries of the uncodified UK Constitution, the Westminster Parliament has been recognised as a body with unlimited legislative power. Yet the parliamentary sovereignty of a representative democracy may seem to be at odds with popular sovereignty as exercised in a referendum. Popular sovereignty also has other implications, such as in Scotland, where an indigenous Scottish tradition claims that sovereignty resides in the Scottish people, in spite of the alternative claims of Diceyan parliamentary sovereignty. Thirdly, there is external sovereignty: whereby a country may be sovereign and recognised as independent by the international community. But states recognise that international agreements such NATO, or EU treaties, curb sovereignty in practice. However, these constraints are willingly accepted by states because of the benefits that pooling or ceding some sovereignty can bring – indeed it can even enhance sovereignty in another sense of a state’s power or ability to deal with certain issues.

These are three different concepts of sovereignty, but they have become very confused in the context of Brexit and the UK’s relations with the EU. Now we have the results of the Referendum vote, what are the implications of ‘taking back control’ for sovereignty? This blog examines three specific issues arising in the immediate aftermath of the Brexit vote which reveal the extent of confusion over sovereignty.

  1. The Referendum

The referendum result is not binding

The Referendum vote is an expression of popular sovereignty. But referenda have not been a highly significant feature of UK Constitutional law in the past and there is still uncertainty as to their place in our Constitution. Labour MP David Lammy has called on Parliament to ‘stop this madness’ and to vote in Parliament against the referendum decision to leave the EU. A large majority of MPs are in favour of remaining within the EU, so Parliament would not pass legislation to leave the EU unless it felt compelled to do so by popular demand expressed through a referendum. Could Parliament actually vote against Brexit? According to classic, Diceyan notions of sovereignty, if Parliament is actually sovereign it can legislate to do anything, including to ignore a non-binding referendum. The EU in-out Referendum is a creature of the European Union Referendum Act 2015. There is no requirement in the Act that the UK Government implement its results, nor does the statute set any time limit for implementing a vote to leave the EU. It is a pre-legislative, or consultative, referendum, enabling the electorate to express its opinion before any legislation is introduced. The 1975 referendum on the UK’s continued membership of the EEC was also an example of this type. In contrast, the legislation setting up the Alternative Vote (AV) referendum held in May 2011 (Parliamentary Voting System and Constituencies Act 2011)  would have introduced a new system of voting without further legislation, although this did not happen because there was a large majority against change.

So whether a referendum is legally binding depends on the structure of the legislation which enables it. Parliament decides that. The UK does not have a codified constitution with provisions requiring referendum results to be implemented, unlike, for example, Ireland, where the circumstances in which a binding referendum is held are set out in its Article 47 of its Constitution. Indeed, even those UK referenda that appear to dictate consequences, such as the AV referendum, are not completely binding, in the sense that Parliament (due to parliamentary sovereignty) could in any case repeal the legislation creating the obligation.

However, although there may be no legal obligation to abide by the result of the referendum that is not the same as saying there is no political commitment to do so, and MPs may feel a strong obligation to act on the results of the vote, especially if they fear reprisals from their electorate in the form of being voted out of office at a future election. So popular sovereignty and parliamentary sovereignty appear to be at odds. Which, if either, ought to predominate? Continue reading

Plus ça change: the legal implications of remaining within the EU

Claire Darwin - Matrix ChambersClaire Darwin, Matrix Chambers

[This article was written on 5th February 2016, and does not reflect any legal or political developments after that date].

Whilst much legal ink has been spilt on the legal implications of the UK leaving the EU (aka Brexit), remaining a member of the EU will have legal implications too. The EU referendum, currently expected to be held on 23 June 2016, will offer the UK electorate a choice between remaining within the EU on the basis of a “new settlement” hurriedly being negotiated between the UK and the 27 other EU member states, and leaving the EU forever.

Greater clarity on the settlement proposals was finally achieved on 2 February 2016, with the publication of the draft Decision of the Heads of State or Government, meeting within the European Council, concerning a new settlement for the UK within the EU (the draft Decision). Section E specifically states that the draft Decision will only take effect if the UK decides to remain a member of the EU.

The key proposals

The Draft Decision is, according to the FT, modelled on an agreement reached at a European Council meeting in Edinburgh in December 1992 whereby it was agreed that Denmark would be granted four significant exceptions from the Maastricht Treaty. That agreement was achieved by way of a binding accord signed by all Member States which the FT describes as having ‘acted like a promissory note from EU leaders’ or ‘a form of post-dated treaty change.’

Similarly, the draft Decision will not amend the EU Treaties and there are no details of any specific draft amendments to them. However, it does promise that certain matters, such as the agreement on a “multi-speed” EU, will be incorporated into the Treaties at the time of their next revision. The recital also states that the clarifications in the draft Decision will have to be taken into consideration as being an instrument for the interpretation of the Treaties. These promises and clarifications, which will be contained within a European Council decision signed by all 28 member states, will then be binding on those member states.

Treaty change is, of course, now impossible before 23 June 2016 (the likely Referendum date), since any such change would have to be ratified by national Parliaments and, in some cases, by referendums. It is unclear when the anticipated revision of the EU Treaties will happen in practice, and it may well not happen for some years.

Sovereignty and the new “multispeed” EU

The phrase “an ever closer union among the peoples of Europe”, which first appeared in the 1957 Treaty of Rome, has been restrictively interpreted in the draft Decision. The draft Decision clarifies that references in the Treaties and their preambles to ever closer union should not be interpreted as an equivalent to the objective of political integration, and that they do not offer a basis for extending the scope of any provision of the Treaties or of EU secondary legislation. Further, the phrase “should not be used either to support an extensive interpretation of the competences of the Union or of the powers of its institutions as set out in the Treaties”.

The recital recognises the existence of a “multispeed” EU, whereby different member states will have different paths of integration and those that want to deepen integration will move ahead whilst respecting the rights of other member states, such as the UK, who do not. This is further recognised in Section C, which records that the references to ever closer union in the Treaties are consistent with different member states adopting different paths of integration.

The draft Decision acknowledges that the UK does not agree that further integration is inevitable or desirable.

Competence and subsidiarity

The EU legal system is based on the principle of conferral of powers, whereby the EU is only permitted to act within the limits of the competences (or powers) that have been conferred on it by the member states (Article 5, Treaty on European Union (TEU)). The principle of subsidiarity (Article 5(3), TEU) was introduced by the Maastricht Treaty in order to prevent the EU from unduly encroaching on the role of national governments in areas of shared competence. The EU is only permitted to act if and in so far as the objectives of the proposed action cannot be sufficiently achieved by member states, but can be better achieved at EU level.

The draft Decision reiterates the importance of the principle of subsidiarity, and explains that its purpose is to ensure that decisions are taken as closely as possible to the citizen

In line with its emphasis on the accountability of EU institutions and the repatriation of competences, the draft Decision includes a mechanism which gives a national Parliament 12 weeks to object to draft EU legislation on the basis that it does not comply with the principle of subsidiarity; however, a significant percentage of national Parliaments will have to object for this “red card” to come into play.

Eurozone and non-euro discrimination

The UK and other EU member states outside of the Eurozone have apparently become increasingly concerned about fair treatment by the bloc of countries that have adopted the euro. The draft Decision requires countries within the Eurozone to respect the rights and competences of those member states that are outside it. It also introduces a new form of unlawful discrimination: anti-sterling discrimination! Member states will be prohibited from discriminating based on the official currency of the member state, and any discrimination will have to be justified.

Freedom of movement

The draft Decision will not impede the ability of EU citizens to move freely between member states; however, it does contain a number of measures which are intended to discourage freedom of movement within the EU by certain groups. Such measures are intended to address concerns about so-called “benefit tourism” and marriages of convenience between EU citizens and non-EU citizens. The draft Decision recognises that it is legitimate for member states to adopt measures avoiding or limiting flows of workers, provided that the flow is of such a scale that it has negative effects for both the member states of origin and the host member states.

The Draft Decision notes that the European Commission will submit proposals to amend secondary legislation (Regulation 883/2004 on the coordination of social security systems) so that child benefits can be linked to the cost of living where the child resides.

Further, the European Commission will submit proposals to amend Regulation 492/2011 on freedom of movement for workers within the Union. The latter will be amended to introduce an ‘emergency brake’, a mechanism which would allow a Member State to restrict access to its in-work benefits if an exceptional situation as regards the inflow of workers exists. It will be for the European Commission to determine whether such an exceptional situation exists.

Finally, the Draft Decision records that Member States are able to take action to address cases of contracting or maintaining marriages of convenience with third country nationals for the purpose of making use of free movement to regularise unlawful stay in a Member State.

Interestingly, the draft Decision does not contain any proposal to limit the definition of a worker (for the purposes of Article 45 of the Treaty on the Functioning of the EU and secondary legislation) to workers earning more than about £13,000 a year, a proposal which according to the FT is now said to be “off the table”. Nor does it make any mention of the proposal by the UK government that new EU migrants should be banned from qualifying for in-work benefits and social housing for four years after their arrival in the UK. Continue reading

Case Comment: McCarthy (C-202/13) (Grand Chamber), 18th December 2014

Catherine Taroni

Context

This case was referred from the High Court R (on the application of McCarthy and ors.) v the Secretary of State for the Home Department [2012] EWHC 3368 (Admin), and considered the applicability of Directive 2004/38 to situations not traditionally falling within the concept of a Union citizen moving to another Member State, and derivative rights for third-country family members.

The O and B decision of the CJEU had addressed some issues in relation to the rights of TCN family members of EU citizens residing in their home Member State, and this case sought to address the issue of what can be required of third-country national family members of EU citizens entering the UK.

Facts

Mr McCarthy is a dual UK/Irish national, his wife is a Colombian national, and their daughter is also a dual UK/Irish national. Mr McCarthy has lived in Ireland for 52 years, only residing in the UK for six years, from 1967 – 1973. The family has lived in Marbella, Spain since May 2010 where they own a property; they also own a house in the UK, to which they regularly travel. Mrs McCarthy has to travel to Madrid to renew her family permit every time she wishes to travel to the UK with her family. She has been refused permission to board flights to the UK when she has presented her residence card without the family permit.

The Secretary of State for the Home Department issued guidance to carriers to discourage them from transporting TCNs who are not in possession of a residence permit issued by the UK authorities. Under section 40 of the Immigration and Asylum Act 1999, a carrier who fails to meet that requirement is required to pay a ‘charge’.

The Advocate General’s Opinion

AG Szpunar gave his Opinion on 20th May 2014, and argued that the provisions of Directive 2004/38 should apply by analogy to the current situation, which involved visits to the UK, where Mr McCarthy is a national, rather than to a Member State of which he was not a national. The Advocate General advised the Grand Chamber that the UK is in breach of free movement law in relation to the requirement of the family visa In addition to residence card, and that the UK’s Frontier Protocol did not give it an opt out in relation to restricting fundamental free movement principles. Continue reading

EU Free Movement as a Legal Construction – not as Social Imagination

Daniel Thym

Monetary union demonstrates that some EU projects are realised without preparation for all eventualities. In the case of the euro, the financial crisis revealed lacunae in the field of economic and budgetary supervision, which the euro countries had to bridge through the introduction of new instruments. In the case of Union citizenship the legal gaps are less dramatic, but nonetheless visible – in particular with regard to access to social benefits for persons who do not work. It was these uncertainties that the European Court of Justice (ECJ) had to confront in the Dano judgment of last Tuesday. It opts for a surprisingly conventional solution, which abandons earlier attempts to conceive of Union citizenship as a projection sphere for political visions of a good life and just society.

The European Court of Justice as Legal Technician

A reminder of the debate about the Free Movement Directive demonstrates the absence of clear political guidance. Initially, the EU Commission had suggested to lay down explicitly that Union citizens who do not work should not have access to social benefits during the first five years of their stay in another EU country (Art. 21.2). It later abandoned the project after the ECJ had ruled in Grzelczyk that similar provisions on study grants do not pre-empt recourse to the Treaty guarantee of non-discrimination. As a result, the final version of the Free Movement Directive reiterated existing Treaty rules, whose precise bearing for people like Ms Dano remained unclear. Otherwise put, there was never a positive political agreement at EU level on the status of Union citizens who do not work. This shifted the responsibility upon judges to resolve open questions.

Judges in Luxembourg used this room for manoeuvre for progressive decisions on various occasions. Judgments such as Grzelczyk, Martínez Sala, Collins, Trojani, Bidar, Vatsouras and Ruiz Zambrano constitute the most ambitious and tantalising line of case law in recent memory. They are characterised by an attempt to breathe life into the abstract Treaty provisions on Union citizenship by granting equal access to social benefits for various categories of economically inactive citizens irrespective of the limits laid down in secondary legislation. It would have been possible for the Court to decide the Dano case differently under recourse to the argumentative arsenal of these judgments.

That did not happen. For more than a decade, the ECJ had ignored the arguments put forward by his most outspoken academic critic, Kay Hailbronner – but they now dominate its reasoning on why citizens like Ms Dano cannot claim social benefits. This presents us with a noteworthy shift of emphasis from a promise of equality inherent in EU citizenship towards the ‘limitations and conditions’, which primary law had always provided for (Art. 21.1 TFEU). Judges abandon the aspirational underpinning of the citizenship concept to the benefit of conventional doctrinal arguments such as the wording or the systematic structure. In short, the Court turns into a legal technician.

Anuscheh Farahat criticises the Court’s outcome and, yet, she follows a similar path as the ECJ, when she argues that the technical rules on inter-state social security coordination mandated a different outcome. It is not convincing to maintain that this specialised field of secondary law should have defined the answer, not least since doing so would have required the Court to disconnect the interpretation of the non-discrimination principle in Article 4 of Regulation (EC) Nr. 883/2004 from primary law. A fundamental question, such as this one, should be answered primarily on the basis of the EU Treaties and the citizenship concept – even by those who disagree with the Court’s conclusion.

It seems to me that the outcome of the Dano case is no coincidence. Judges in Luxembourg are not autistic and listen to the general political context. The Pringle judgment on the compatibility of the ESM Treaty with the rules on monetary union was a case in point – and the same held for the Förster ruling, in which the Court shied away from open conflict with the EU legislator, when it accepted a five-year waiting period for access to study grants for incoming EU students in line with the Free Movement Directive. The Grand Chamber deciding the Dano case will have considered potential implications of its judgment for the overall support for the integration project at a time, when eurosceptic political parties are on rise across the continent, not only in the United Kingdom. Continue reading

The End of Free Movement of persons? The CJEU Decision in Dano

Dr Iyiola Solanke

In January 2014, I wrote a post discussing the plans of the UK Coalition government to withhold some benefits from ‘jobless’ EU migrants. I suggested that this group would be hard to define and that the most obvious persons to fall into this category would be those who are not only unemployed but also for some reason unemployable, such as Wadi Samin, an Austrian army veteran deemed permanently unable to work due to ill health. In Dano, the Grand Chamber of the CJEU seems to have confirmed that this is indeed the case. This decision has been welcomed by leaders including but not limited to David Cameron. However, it does not place major new restrictions on the right of free movement – rather it provides a welcome affirmation of the existing restrictions in the Treaties and secondary legislation. It does this by establishing that ‘sufficient resources’ in Article 7 of the Citizenship Directive refers to ‘own’ resources.

Ms Dano grew up in Romania but migrated to Germany where her 2-year old son, Florin, was born in 2009. Both are Romanian nationals. She settled in Leipzig with her sister and was issued with a permanent residence card in July 2011. She received no support from the child’s father but in addition to help provided by her sister, Dano received child benefit for her son, as well as an additional amount in maintenance payments. (totalling around EUR 317 per month). In 2011 she applied for a series of basic provision benefits (‘Grundsicherung’) provided under German legislation to jobseekers – subsistence benefit (‘existenzsichernde Regelleistung’) for herself, social allowance (‘Sozialgeld’) for her son as well as a contribution to accommodation and heating costs. This application was refused, as was a second application in 2012. An administrative challenge to the 2012 decision, based on Article 18 and 45 TFEU, failed. It was held that she was not eligible to receive these benefits under the relevant German legislation (Paragraph 7(1) of SGB II and Paragraph 23(3) of SGB XII).

She subsequently brought an action before the Social Court in Leipzig, challenging the refusal to grant these basic benefits. The Leipzig Court, although it agreed with the decision under appeal, was unsure that the German provisions were compatible with EU law, in particular the general principle of non-discrimination resulting from Article 18 TFEU, the general right of residence resulting from Article 20 TFEU and Article 4 of Regulation No 883/2004. It therefore referred four questions to the CJEU.

Question 1: the scope ratione personae of Article 4 Regulation No 883/2004

The first question concerned the scope ratione personae of Article 4 Regulation No 883/2004, which replaced Regulation No 1408/71 from 1 May 2010.  Article 4, headed ‘Equality of treatment’, provides:

‘Unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof.’

Having decided that the basic provision benefits sought were ‘special non-contributory cash benefits’ (within the meaning of Article 70(2) of Regulation No 883/2004) the Leipzig Court asked whether such benefits were covered by Article 4. The Grand Chamber confirmed that they did. Continue reading

Zambrano: Unwritten?

Dr Iyiola Solanke

National courts have continued to deal with the consequences of Zambrano. Although Dereci and MacCarthy clarified that compulsion to leave related solely to practical consequences, the scope of ‘practical consequences’ was not determined by the CJEU. While the rupture of strong emotional and psychological ties within the family would not demonstrate compulsion to leave, would the removal of the rights to welfare engage the Zambrano right?

This question was discussed in a previous post on the ‘Zambrano Amendments’[1] introduced in 2012 at the same time as changes were made to the EEA Regulations 2006 implementing Citizenship Directive 2004/38 to give effect to the Zambrano decision.[2] These ‘Zambrano Amendments’ banned Zambrano carers from all mainstream benefits under national law – employed and unemployed Zambrano carers were henceforth excluded from eligibility for social security benefits, child tax credits and housing entitlements. In HC and Sanneh, it was decided that this blanket refusal of welfare benefits was legal – it did not compel a Zambrano carer to leave the EU. The substance of the Zambrano right to reside remained intact even if the Zambrano carer was left destitute and without adequate resources to care for the EU citizen child.

LJ Elias introduced in Harrison[3] what has become the standard dicta for understanding the Zambrano principle. Dismissing a broad approach to the CJEU ruling, he stated:

‘… The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality or life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished. Of course, to the extent that the quality or standard of life will be seriously impaired by excluding the non EU national, that is likely in practice to infringe the right of residence itself because it will effectively compel the EU citizen to give up residence and travel with the non-EU national. But in such a case the Zambrano doctrine would apply and the EU citizen’s rights would have to be protected (save for the possibility of a proportionate deprivation of rights).’

The Zambrano principle is thus limited to situations where the EU citizen is irrefutably in practice forced to leave the EU. The CJEU has not yet had an opportunity to comment on this approach and it has continued to be applied, most recently in Hines v London Borough of Lambeth[4] where the removal of one parent was found compatible with the Zambrano principle. Surprisingly, it was not applied in R (Osawemwenze) v SS Home Department[5] where both parents were told to relocate with two small children who may have been EU citizens. These cases continue the theme raised in my last post on the compatibility of rights under EU and ECHR law, in particular the rights of the child. The cases also provide further insight into the national judicial response to the Zambrano ruling.

Maureen Hines, a Jamaican citizen without permission to remain in the UK, was refused housing assistance despite being mother to a 5-year old boy, Brandon, who was born in the UK and thus an EU national. The reviewer for Lambeth decided that even if the refusal caused Hines to leave the UK, Brandon’s father, who had an EU right to permanent residence in the UK, could look after him: although his parents had separated, Brandon did spend two days and nights a week with his father. Continue reading

Right-Hand, or Wrong-Hand, Drive? Market Access and Proportionality

Angus MacCulloch, Lancaster University Law School

On 20 March 2014 the Court of Justice of the EU (CJEU) handed down two separate, but connected, judgements in Case C-639/11 Commission v Poland and Case C-61/12 Commission v Lithuania. Both cases involve the Commission challenging the Member States’ refusal to register right-hand drive cars within their jurisdiction. Both MSs argued that their refusal to allow the registration of right-hand drive cars was a safety measure as the driver of a right-hand drive car has a field of vision considerably reduced when the traffic is on the right-hand side of the road. It is rather contrary to the usual UK political debate on EU migration, but this issue is essentially a problem caused when former UK residents move to Poland or Lithuania and attempt to register their right-hand drive cars in those States (AG [102]). The owners of right-hand drive vehicles would have to go through the expensive process of moving the vehicle controls to the left in order to properly register their vehicle in either MS. In the rest of this post references will be to Case C-639/11 unless specifically indicated.

The judgment concerns two separate issues. The first, the registration of new vehicles, is of less general interest and I shall deal with it very briefly. The second, the registration of vehicles previously registered in another MS, is of wider application and I shall deal with it more fully.

New Vehicles

The registration process for new vehicles in the EU is comprehensively governed by Type Approval Directives (Directive 70/311/EEC and Directive 2007/46/EC) which are designed to “replace the Member States’ approval systems with a Community approval procedure based on the principle of total harmonisation” (Dir 2007/46, Recital 2). The type approval procedure was amended when the UK and Ireland became members of the, then, Community to make no distinction between left and right-hand drive cars. Both the Directives are internal market measures, but ensure within them a high degree of road safety. Art 2a of Directive 70/311/EC requires MSs not to prohibit the registration of vehicles “on grounds relating to their steering equipment” if the vehicles satisfies the requirements of the Directive. It was therefore not surprising that as the EU harmonising measure had already taken into account the safety issues arising from the differences between the type approval of new left and right-hand drive vehicles it was not possible for an individual MS to require further pre-registration changes through moving the steering equipment from right to left [47].

Vehicles Previously Registered in other MSs

As the Directives only apply to approval of new vehicles they were not relevant to the registration of vehicles which had previously been registered in other MSs. That question was governed by the Treaty principles on the free movement of goods, namely Articles 34 and 36 TFEU. Both Poland and Lithuania argued that the use of a right-hand drive vehicle in situations where traffic circulated on the right hand side of the road presented a risk to road safety such as to necessitate the refusal of registration. The Polish Government argued that there was no indirect discrimination in the measure, as right-hand drive vehicles manufactured in Poland were equally effected. Both the Polish and Lithuanian Governments argued that even if the measure was a quantitative restrict on imports, in the terms of Art 34 TFEU, it was justified on the basis of the protection of road safety. The Commission argued that the measure was contrary to Art 34 TFEU, and that the refusal of registration was not suitable for attaining the road safety objective pursued, and the measure was disproportionate.

The most interesting aspect of the findings of the Court in these cases was not the eventual decision. It was not surprising that, given the EU harmonisation provisions in place, the CJEU was resistant to the MSs attempt to restrict the import of vehicles from other MSs. However, the way in which they approach the question is interesting in two regards. First the test the Court used to decide whether the national measures fell within Art 34 TFEU, and second, the issues it took into account in deciding the proportionality question. Continue reading

Rights of residence of TCN family members within a Union citizen’s home state: Comment on Cases C-456/12 O and B and C-457/12 S and G, Judgment of the Court (Grand Chamber) 12 March 2014

photoCatherine Taroni

Context

Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely grants qualifying Union citizens rights of residence in Member States other than their own, and allows family members to derive rights of residence from the Union citizen.  As McCarthy showed, this does not apply within a Union citizen’s home state.  It is possible for family members to derive rights of residence from the Treaty within a Union citizen’s home state, and this is what the Court considered in C-456/12 O and B and C-457/12 S and G.

Continue reading

Case Comment: C-423/12 Reyes

Adrienne Yong

The recent developments in EU citizenship have been admittedly fairly quiet in comparison to the uproar after the ever controversial Zambrano case where the interpretation of citizenship provisions under Article 21 TFEU went astray. In the case of Reyes, the question concerns a clarification on the Directive 2004/38 and the meaning of ‘dependant’ under Art 2(2)(c). The case concerns third country nationals (TCNs), the cases of which have dominated the scene since Zambrano. The persistence of claimants in this respect is thus admirable, suggesting that Zambrano and indeed, the Directive itself, left a lot to be desired. This persistent pattern is to be received positively, representing good opportunities to clarify confusing positions.

Facts

Ms. Reyes, a Filipina, was brought up by her grandmother in the Philippines when she was three years old after her mother left to work in Germany to support her family. Ms. Reyes’ mother is now a German citizen.

Throughout her life, Ms. Reyes never held a job but similarly never relied on the Philippines’ social benefits. Her mother periodically sent money to support her, her sisters and her grandmother. Ms. Reyes’ mother moved to Sweden to be with a Norwegian man in 2009, whom she married mid-2011. He received a retirement pension which was also sent to the Philippines for Ms. Reyes’ benefit. After moving, Ms. Reyes’ mother did not work, living on her husband’s retirement.

When Ms. Reyes entered the Schengen area early 2011, she was refused a residence permit as dependent family member by the Swedish Migrationsverket for being unable to prove the funds sent by her mother and her partner were to sustain her life in the Philippines (in the form of basic needs, lodging, healthcare) or that any home state public funds were supporting her. This was due to the fact that she was fully dependent on her grandmother and the Migrationsverket decided this indicated she was not dependent on her mother in Sweden.

The appeal by Ms. Reyes to the Migrationsverket was dismissed because whilst they agreed her basic needs were supported by her mother’s funds, there was not enough proof that she would be able to survive without dependence on her mother and partner if she were to remain in her home state. They argued that she was still young, had qualifications from there, lived there, and still had relatives there. Her mother’s choice to support her was not determinative in the decision that Ms. Reyes’ was not dependent.

The first question referred thus aims to clarify if Art 2(2)(c) Directive 2004/38 – the definition of a dependent family member – requires that those over 21 years old must prove that they had searched for employment and failed OR sought support from public funds and it was also not possible before being considered a family member. The second asks if this family member can still be considered a ‘dependant’ if they are considered to be fairly well qualified to get employment AND intends to find a job in that Member State. This would nullify the conditions under which they would be a dependent relative. Continue reading

Jobless EU migrants and housing benefit

Dr Iyiola Solanke

According to reports from the BBC, ‘jobless migrants from within the European Union will be denied access to housing benefit from April this year’. Housing benefit is an ‘in –work’ benefit which provides support with rent for those who are unemployed or on a low income. As it is means tested, it may not cover all rent costs. It is administered through local councils to private and social landlords. Universal credit[1] will replace housing benefit in 2015. Before then, both Home Secretary Theresa May and Work and Pensions Secretary Iain Duncan Smith intend to introduce plans to ‘prevent exploitation of the UK welfare system’ by ‘jobless’ EU migrants.

Research[2] suggests that EU migrants are less likely than UK nationals to claim any form of benefits so the prevention of exploitation by targeting EU migrants is questionable. Furthermore, who are the jobless EU migrants – are they a composite group? Finally, as these measures will not apply to jobless nationals, would such action be compatible with EU law? There is indeed little free movement for jobless migrants under EU law[3] but when is an EU migrant ‘jobless’?

The ‘Jobless’

Focusing on the ‘jobless’ draws a broad distinction between this group and EU migrant ‘workers’: the former have few rights under EU law while the latter have many. Article 45 TFEU provides free movement to workers within the EU. A worker under EU law is a person who is employed: in Lawrie Blum and Collins the CJEU defined a worker as a person who provides services under direction of another for remuneration. The work itself must constitute a ‘genuine economic activity’: in Steymann the provision of maintenance tasks for was seen as such whereas in Bettray work conducted as part of a rehabilitation scheme was not. The number of hours worked and level of salary are irrelevant to the definition.[4]

The Citizenship Directive (CD) adopted in 2004 guarantees migrant EU workers and other ‘qualified persons’[5] equal treatment with nationals in the territory of a host member state. Migrant EU workers benefit from non-discrimination on the grounds of nationality – they and their family members are to be treated in the same way as any national worker, in relation to work, education and access to benefits. Conditions for this equal treatment are set out in Chapter III of the CD. Continue reading