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Don’t Get Too Excited about the Benefits Tourism Ruling

    On Tuesday the Court of Justice of the European Union (CJEU) handed down a widely-praised judgment limiting so-called ‘benefits tourism.’ The case concerned a Romanian migrant’s unsuccessful claim to the German equivalent of the Jobseeker’s Allowance. In short, the CJEU confirmed that EU member states are not obliged to grant “special non-contributory cash benefits” to those who have only been resident in that state for less than 3 months, or for less than 5 years if seeking work. In the case of those who are resident for between 3 months and 5 years, and are not seeking work, the successful claimant must show that they have “sufficient resources not to become a burden on the social assistance system.”

    Unsurprisingly, the UK press is replete with praise. Conservative MEP Anthea McIntyre has lauded it as a “ruling in favour of common-sense,” a statement echoed by Downing Street. Timothy Kirkhope MEP also welcomed its “wide-ranging implications” and Iain Duncan Smith was quick to describe the judgment as “excellent.”

    Nevertheless, while the decision has received cross-party support, it is important that these politicians do not overstate its effect. Contrary to reports in the national press, it does not signal the “death knell” of benefits tourism, and there may also be an element of politicking designed to undermine the Conservative’s increasingly sceptical stance on EU immigration.

    In the Government’s favour, the case of the economically inactive Romanian migrant and her abusive claim on the German social security system will strengthen the argument that benefits tourism by EU migrants is a real issue facing this country, especially in light of recent contrary reports. In addition, the judgment could be cast as evidence that Britain’s concerns are shared by other major European countries, and that the EU and its institutions are not only starting to listen but to finally admit the existence of a problem as well.

    But let’s not get too excited. There is no immediate “wide-ranging impact” on the UK’s social security laws and it would be unwise to declare the CJEU’s ruling a sea-change. Firstly, the ruling applies to “special non-contributory cash benefits,” which includes only JSA, ESA, DLA and the State Pension Credit. All other benefits are still up for grabs – and in the European Court the applicant’s right to child benefits for her infant son was undisputed. Secondly, unless certain conditions are satisfied, UK JSA is denied to UK residents and newly-arrived EU migrants alike. This is unlike in Germany, where the equivalent benefit is given only to German nationals – and it was this policy which gave rise to the appeal before the CJEU that the Germans were discriminating against non-German EU nationals. The UK’s policy is not discriminatory and the CJEU decision was not needed to confirm that.

    More importantly, critics of Eurosceptic hard-talk will point to this ruling as evidence that whatever concerns the Government may have over EU migration can be addressed within the existing framework of EU directives and regulations. The CJEU’s judgment was unusually strong and legally clear, and given its limited impact, the implication is that it represents little more than a politically savvy attempt to stave off Eurosceptic calls for wholesale legislative reform. In other words, the EU has fired first in order to pull the rug out from under David Cameron’s feet.

    And finally, Iain Duncan Smith will only see the ruling as beneficial in the long term if the new Universal Credit is deemed by the EU Commission to be a “special non-contributory benefit,” in implementing his plans to prevent out-of-work EU migrants claiming the credit. This is far from guaranteed.

    Therefore, while the Court of Justice’s ruling is largely to be welcomed, the Government should remain cautiously optimistic - but nothing more.

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