Right to Receive Social Assistance of Non-Economically Active Person

Right to Receive Social Assistance of Non-Economically Active Person

In relation to the rights of EU citizenship, the most important right is the right to free movement and residency in another Member States under Art 21 TFEU. However, there are some restrictions and conditions that limit EU citizens, specifically non-economically (non-econ) active person, in receiving social assistance.

Art 24(2) Citizens Rights Directive (CRD) makes it clear that by way of derogation from the principle of equal treatment, the host Member States shall not be obliged to confer entitlement to social assistance during the first three months of residency. Under Art 7(1)(b) CRD, between 3 months and 5 years, citizens are required to have sufficient resources for themselves and their family members not to become a burden on the social assistance system and comprehensive sickness insurance.

The issue arises regarding the non-econ active person because they are unable to demonstrate the sufficient resources element, therefore, they are not entitled to have the right to social assistance. This seems to contradict with the usual approach adopted by CJEU. In Martinez Sala, EU nationals lawfully residing in another Member States can rely on Art 18 TFEU in all situations falling within the scope of EU law.[1] It was thus discriminatory to require a national of another Member State to produce a document to obtain the benefit when its own nationals were not required to do the same. It is clear that there is a conflict between the requirement of ‘sufficient resources’ and equal treatment in receiving social assistance of a non-econ active person.

In that sense, there have been some cases concerning whether a non-econ active citizen has the right to social assistance. In Gryzelczyk, the court held that EU citizen have the right to equal treatment, and the right to social assistance is provided regardless of your nationality because the Member States must demonstrate a certain degree of financial solidarity with nationals of other Member States.[2] The right also extends to family members, for example, Baumbast case.[3] It was disproportionate to interfere with the right of residence simply because he did not have cover for emergency treatment. In Zhu and Chen, sufficient resources could come from the mother and the requirement of sufficient resources to maintain residency was disproportionate.[4] These judgements are an extremely important contribution by the court because there is a need for financial distribution from the wealth-off to the non-wealthy citizens. However, the law here is very limited and strict because financial circumstances of the claimant are very important and relevant factors. In both Baumbast and Zhu and Chen their rights to social benefit were refused by host Member States on the grounds of not having sufficient resources.

On the other hand, the court progressively set some restrictions on deciding whether economically inactive citizen have access to social benefits. In Gryzelczyk, Member States had to provide some temporary support to the migrant citizen, as they would do nationals, given that there exists ‘a certain degree of financial solidarity’ between, but only so long as they do not become an unreasonable burden on public finances. The right to equal treatment in the form of social assistance can be subject to limitation and justification so long as it is proportionate. In Bidar, EU non-econ active persons will be entitled to social assistance on equal terms with nationals will depend on the extent to which those persons have to intergrade into the society of the host date.[5] This means the higher the degree of integration in host Member States the higher the degree of financial solidarity is owed to the non-national.

In that sense, there have been some cases concerning whether a non-econ active citizen has the right to social assistance
In that sense, there have been some cases concerning whether a non-econ active citizen has the right to social assistance

Meanwhile, in Brey case, Member States can exclude EU citizens from right to residence if they do not have sufficient resources, but they are entitled to equal treatment and access to social assistance so long as they remain lawfully resident in the Member States in accordance with domestic rules.[6] Member States is not entitled to equate ‘recourse to social assistance’ with ‘lack of sufficient resources’ but have to take into account individual circumstances, duration and amount claimed. This list of criteria leads to the case of Dano.[7] The court clearly distinguishes between (a) people who lawfully resided more than three months, but due to circumstances, are temporarily unable able to fulfil the condition and (b) people who arrived in the Member States without fulfilling such conditions and therefore not entitled to rely on equality of treatment. Any other interpretation would defeat the object and purpose of CRD seeking to prevent economically inactive citizens from using the host Member States’s welfare system to fund their means of subsistence. Thus, the judgment in Alimanovic takes exactly the same approach seen in Dano. Actually, Alimanovic even took the stricter application of CRD as job-seekers can reside in the Member States but are not entitled to social assistance.[8]

In conclusion, the ECJ’s jurisprudence has developed a limited claim to social solidarity but with several limitations. Citizen have the right to equal treatment with respect to social assistance as long as they have sufficient resources and the requirement of proportionality. Thus, not having sufficient resources for social assistance does not mean that EU national has become an unreasonable burden. The problem still places on the requirement of “sufficient resources”. It seems that the principle of market citizenship has won against social solidarity without relying on sufficient serious legal justification and the objective of creating an ever closer union among EU citizens has become more ‘rhetoric’.

Freedom of movement between the UK and EU ends on 31 December 2020. Preparations are underway to allow UK citizen who lives in the EU to continue doing so after this date and vice versa. The UK and the Eu committed to set up ways to do this in the Withdrawal Agreement. The UK established its EU Settlement Scheme, and each 27 EU Member State established their own schemes, supported by the EU. The rights of EU citizens living in the UK were agreed as part of the Scheme and will be monitored by a new Independent Monitoring Authority, to be based in Swansea and operational from the end of the transition period.

For further information regarding life in the UK and free consultation, please contact EP Legal Ltd, an international law firm based in Birmingham, UK. The firm has an experienced team of 90-year combined experiences. We specialise in Immigration, Commercial and Criminal Law.

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[1] Martinez Sala v Freistaat Bayern (1998) C-85/96

[2] Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve (2001) C-184/99

[3] Baumbast and R v Secretary of State for the Home Department (2002) C-413/99

[4] Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department (2004) C-200/02

[5] Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills (2004) C-209/03

[6] Pensionsversicherungsanstalt v Peter Brey (2013) C-140/12

[7] Dano v Jobcentre Leipzig (2014) C-333/13

[8] Jobcenter Berlin Neukölln v Nazifa Alimanovic and Others (2015) C67/14

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