12/11/2014
David Cameron can have few more unlikely allies than the
European Court of Justice, which yesterday ruled that foreign nationals who are in another country solely to obtain benefits, or who come to the country looking for a job, are not entitled to certain non-contributory benefits.
This gives Mr Cameron's government the legal cover to shut off the flow of cash to that group known as "benefit tourists", so removing a high profile "pull" factor which attracts quite the wrong sort of people.
In this case, the country was Germany, to which 25-year-old Romanian, Elisabeta Dano, brought her son Florin in November 2010, living in the home of her sister, who provided for them, although she did get child benefit amounting to â¬184 per month and an advance on maintenance payments of â¬133 per month.
Ms Dano had no intention of finding a job and had no employment record in Romania, but nevertheless turned up at the Jobcenter in Leipzig demanding the basic jobseekers allowance.
When refused, she took a case in the Social Court in Leipzig, which backed up the Jobcentre, at which point she took the case to the ECJ in Luxembourg. As is so often the case, the financial backers were not identified.
The issue at stake was the non discrimination on grounds of nationality rule (Art 18), as German nationals are entitled to the particular benefit in question. But the court called in aid
Directive 2004/38/EC - the so-called freedom of movement directive - which exempts Member States from giving social assistance during the first three months of residence.
Furthermore, when the period of residence is longer than three months but less than five years (the period which is at issue in the present case), one of the conditions which the Directive lays down for a right of residence is that economically inactive persons must have sufficient resources of their own.
The directive thus seeks to prevent economically inactive citizens from using the host Member State's welfare system to fund their means of subsistence. And it is this which permitted the German state to refuse Ms Dana the benefits she asked for. Since she did not meet the requirement of the free movement directive, she could not invoke the principle of non-discrimination.
Newspapers such as the
Telegraph are calling this a "landmark decision", although it seems pretty routine in upholding a fairly straightforward provision of a fairly straightforward directive.
But there is another twist here which does elevate the case above the routine, in that the ECJ also stopped Ms Dano from using human rights legislation to appeal against measures blocking them from benefits.
The
Mail adds focus, noting that there were 38,580 migrants from the EU claiming Jobseekers Allowance in the UK in February this year.
This might thus afford the UK some considerable relief, which leads Work and Pensions Secretary Iain Duncan Smith, unsurprisingly to declare: "This is an excellent ruling - and supports our view that people coming to the UK who don't have sufficient resources to support themselves and would become a unreasonable burden should not be able access national welfare systems".
Mr Duncan Smith then suggests that the EU needs a much clearer legal framework, clarifying the original Treaties, allowing Member States to retain control over their own national welfare systems. "We have been working closely with Germany on this case, and will now work with other European Governments on the wide implications of the judgment in the coming days and weeks", he adds.
One wonders though whether the enthusiasm for this judgement is merely a cover for the failure of successive governments to refuse payment of benefits to migrants, to which they have not been entitled.
Certainly, since 2004 and possibly much earlier, it seems there has been no requirement to pay non-contributory social benefit. It is perhaps better only just to have found out than to admit to having made all those unnecessary payments for so many years.
There again, we may all be over-interpreting this. What the court actually said was that people who are not seeking employment and have no intention of taking paid employment, can't claim jobseekers allowance. And we actually needed the ECJ to tell us that?
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