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European Court of Justice rules UK can withhold benefits to EU migrants without right to reside (30 June 2016)

Date: 30/06/2016
Duncan Lewis, Legal News Solicitors, European Court of Justice rules UK can withhold benefits to EU migrants without right to reside

On the 14 June 2016, the European Court of Justice made a judgement in the case of the European Commission v United Kingdom of Great Britain and Northern Ireland (Regulation (EC) No 883/2004) Case C-308/14.

Essentially, in this case the European Commission brought a case arguing that the UK process of checking whether claimants of child benefit and child tax credit are legally resident discriminated against foreign EU workers because British citizens are not checked in that way.


In this particular instance, the UK was accused of discrimination by non-British EU citizen’s resident in the UK. These persons complained that the UK authorities had refused to grant them certain social benefits on the ground that they did not have a right to reside in the UK.
The Commission considered these complaints and took the view that the UK legislation did not not comply with the regulation. Consequentially, it brought an action for failure to fulfil obligations against the UK. The Commission essentially suggested that the decision by the UK to act in this way was contrary to the spirit of the regulation since the regulation has regard only to the claimant's habitual residence.


Essentially, the UK relied on the judgement of Brey and stated as follows:

  1. The UK’s is allowed to protect its finances, provided it does not go beyond what is necessary to attain that objective;

  2. This method of distribution ensures benefits are paid to persons sufficiently integrated in the UK.


In its judgement the European Court of Justice ruled that, while it is considered to amount to indirect indiscrimination to withhold benefits, it is still lawful for the UK to withhold family benefits to EU migrants who do not have the right to reside in the UK. See Paragraph 86:

“It follows from the foregoing that the fact that, under the national legislation at issue in the present action, for the purpose of granting the social benefits at issue the competent United Kingdom authorities are to require that the residence in their territory of nationals of other Member States who claim such benefits must be lawful does not amount to discrimination prohibited under Article 4 of Regulation No 883/2004.”

Basically, the above decision was made on the basis that:

  1. The regulations set out do not outline a common scheme of social security, but allows different national social security schemes to exist;

    Paragraph 75

    “there is nothing to prevent, in principle, the grant of social benefits to Union citizens who are not economically active being made subject to the substantive condition that those citizens meet the necessary requirements for possessing a right to reside lawfully in the host Member State.”

  2. Due to position in point (a), the Court decided that there is nothing to prevent the grant of social benefits to EU citizens been made subject to the requirement that those citizens fulfil the conditions for possessing a right to reside lawfully in the host Member State.

  3. Paragraph 76

    “Nevertheless, a host Member State which, for the purpose of granting social benefits, such as the social benefits at issue, requires a national of another Member State to be residing in its territory lawfully commits indirect discrimination.”

(The justification provided for the above decision was based on the principle of equality. In this case, this principle was considered in context of social security. Basically, the principle of equality acts to prohibit Member States acting in a discriminatory manner on grounds of nationality.)


Disadvantages for Migrants:

  1. “Under this plan, new EU immigrants will be barred from accessing social security benefits for their first four years in Britain”.

  2. It appears that the European Court of Justice is potentially becoming “more sympathetic to the UK’s interpretation of free movement rules.”





About the author: Hellen Cummings is a Caseworker in the Duncan Lewis Public Law department. Helen specialises in Public Law matters such as judicial review, court of protection, environmental, special educational needs, inquests, and regulatory work.

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