1. Although EU citizens are often described as having ‘free movement’ within the EU there are some restrictions on their right to live in the UK. All EU citizens have an initial right to reside for three months after which they have a right to reside only if they are exercising their treaty rights as a worker, self-employed person, job-seeker, student or self-sufficient person.
2. The point at issue is the terms on which unemployed job-seekers from the EU have access to the UK benefit system. As the British welfare system is largely non-contributory it is more open than those of many other EU countries.
3. For EU migrants to access UK benefits they have to pass a Habitual Residence Test which has two parts: (a) is the UK now your centre of interest; and (b) do you have a right to reside under the EU Treaty (confusingly both the test as a whole and part (a) are often both known as the Habitual Resident Test)
4. The test as a whole is passed automatically for those who have got a job and the self-employed but is applied to job-seekers. Cases are decided by officials at job-centres on an individual basis and for part (a) a decision is based on an applicant’s circumstances and his intention to stay[1]. In some cases a period of actual residence of up to 3 months is required to demonstrate this intention. It appears to be this period that the government is planning to extend to six months – presumably by issuing some form of guidance.
5. The European Commission is already taking the UK government to court over part (b), the ‘right to reside’ part of the test, as they consider it discriminatory because British citizens automatically pass it.
6. If the Commission were successful this would lead to the ludicrous position where an EU citizen with no treaty right to live in the UK would still have the right to draw benefits from the UK welfare state. The government is strenuously resisting this.
7. Verdict: the change envisaged might deter some migrants from coming to try and find a job. It could also mean that those who have no intention of working would be kept out of the benefit system (however the duty to protect children could supervene). A further aspect is that there is no effective means of removing EU citizens unless they have committed an offence that attracts a two year sentence.
8. Attempts to protect the benefit system in this way will have widespread support but, in regards to numbers, these measures will not affect genuine workers who remain entitled to extensive in-work benefits such as working tax credit which increase the financial incentive to come and take low paid work, especially for those with families.