'Habitual residence' and benefits tourism: gobbledegook versus propaganda

The EU Commission has published a 55-page guide to ‘habitual residence’.  Entitled Practical guide on the applicable legislation in the European Union (EU), the European Economic Area (EEA) and in Switzerland, the Guide is the Commission’s attempt to counter the  accusations being made by the British government about ‘benefits tourism’.    It’s not a page-turner; I think I can safely say that it won’t make the shortlist for the next Costa Book Award.

The press release explains:

Under EU law there can be only one habitual place of residence and so only one Member State responsible for paying residence-based social security benefits.

In other words, it’s not possible to claim benefits in a new country without first establishing that you are ‘habitually resident”.  The criteria for habitual residence include:

  • family status and family ties
  • duration and continuity of presence in the Member State concerned
  • employment situation …
  • exercise of a non-remunerated activity
  • in the case of students, the source of their income
  • how permanent a person’s housing situation is
  • the Member State where the person pays taxes
  • reasons for the move
  • the person’s intentions based on all the circumstances and supported by factual evidence.

The UK has had a test of ‘habitual residence’ test in place since 1995.   A long series of legal cases has established that ‘national governments are entitled to restrict the right of residence of EU nationals and to restrict any social assistance to them’ (see Rowland and White, Social security legislation: Administration, adjudication and the European dimension, Sweet and Maxwell, pp 846-54).

The main point of contention concerns ‘inactive, highly mobile persons’ (Guide, pp 48-49).  People with no connections to anywhere become the responsibility of the place where they’ve landed.  That’s a long-standing principle applied in many fields of activity.  In the UK it runs back at least to the Poor Relief Act of 1662, which introduced the laws of settlement and removal.  This is not altogether a new debate.

3 comments

  1. Caroline Leclercq

    I can’t think this is correct. In France, for example, someone from another (European) Memeber State can claim benefits if he/she is a worker in France, or has been one anteriorly. It will take about 3 months for the first payment to arrive, with backlog. This is hardly ‘establishing habitual residence’, as you suggest. But it is in line with European rules. Is there anyone there to reply to this?!

  2. Paul Spicker

    It’s open to EU member states to offer benefit rules that are more generous than the EU requires – the habitual residence test defines a minimum needed for free movement. France’s rules are more generous than the minimum – I shouldn’t have said that it was ‘not possible’ to claim. It could be questioned, however, whether the delays in the French system are compatible with any kind of principle – rights delayed may be rights denied.

    • Caroline Leclercq

      Thank you for your reply. Of course France skirts any EU rule that doesn’t suit! But you are so right about the gobbledegook/propaganda of the EC. They forget to mention, for example, that it is possible under EU habitual residence rules to end up “habitually resident nowhere”…

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