European Law Monitor

Make your voice heard!

To what extent can the UK stop EU benefit tourists from coming in as an EU Member?

This is a key question as
-    It was a major factor in the EU Referendum
-    Lack of control over our borders was heavily pushed by a number of Leave campaigners
-    It is still an important factor for many voters

The aim of this article is to discuss whether or not it is true that the UK cannot stop people coming in just to claim benefits as an EU Member. This is an important question as a significant number of people are under the impression that
-    Any EU national can move to another EU country without any controls.
-    We can’t stop benefit tourists
-    We can’t stop terrorists and criminals from coming in.
-    We don’t know who is coming in.

In fact, free movement is a very specific right. It gives you the right to:
-    Move to another EU country if you have a job lined up.
-    Go and look for work in another EU Member State, provided you have the money to support yourself so you do not have to claim benefits. You can only job-seek for up to six months and after that you can be sent home, unless you have the funds to support yourself so you don’t need to claim benefits, and you are actively seeking work.
-    Study in another EU Member State provided you have got the means to support yourself whilst you are a student or set up a business in another EU country.

Free movement is not an absolute right. Member States have the power to over-ride the free movement provisions on the grounds of Public Policy, Public Security and/or Public Health. Further information on the powers of Member States to either exclude someone or kick them out can be found in Article 27 of Directive 2004/38.

A number of people are concerned about EU benefit tourists coming to the UK, when they have no intention of working, and just claiming benefits from the moment they arrive.  Two points should be made regarding this:

Firstly, under EU law, the UK government does not need to pay benefits to any EU national until they have been here at least three months (see Directive 2004/38). The UK government passed a law stating that people from other EU countries could claim benefits from the moment they arrived.This was a decision of the UK government and not a requirement under EU law.

Furthermore, the ECJ issued a key judgement in the case of Dano (2014) , confirming that under the free movement rules if you have no intention of working and you don’t have the means to support yourself and your family, then you do not meet the criteria necessary to invoke a right of residence under the free movement rules, which would entitle you to those benefits. Therefore, you can be kicked back home under these circumstances, as you don’t meet the free movement criteria.

In conclusion, free movement is not a blank cheque. You do not have the right, under the free movement rules, to just move to another EU country and claim benefits from the moment you arrive. The whole idea behind the free movement rules is that you should only exercise your right to move to another EU Member State if you are not going to be claiming benefits. You have got to be able to support yourself, and if you become an unreasonable burden on the country you have moved to then you can be sent back to your own EU country.

Directive 2004/38/EC makes clear that as long as someone exercising their free movement rights does not become an unreasonable burden on the benefits system of the host Member State they should not be expelled or kicked out. Therefore, an expulsion measure should not be the automatic consequence of needing to claim benefits.  The host Member State should examine whether it is a case of temporary difficulties and take into account how long they have lived there, the personal circumstances and the amount of benefits granted in order to consider whether the beneficiary has become an unreasonable burden on the benefits system. If someone has become an unreasonable burden then they can be kicked out of the country they are claiming benefits from, and sent back to their own EU country. Therefore, if someone is becoming a burden on the UK, the UK government has the power to kick them out of the UK.