It’s been widely reported (for example, in the Times, the Mail and the Sun) that Theresa May has plans to restrict in-work benefits to EU workers, putting them on the same footing as non-EU claimants. I’ve been puzzling about what this means. The only benefits specifically mentioned in the reported briefings are Tax Credits, which in any case are supposed to be being replaced by Universal Credit. In most cases non-EU migrants are entitled to benefits as long as they meet the various tests – residence, presence or habitual residence, depending on which benefit we’re talking about. So, for example, to be entitled to Child Tax Credit, Working Tax Credit or Child Benefit a non-EEA migrant is expected to have lived in the UK for three months. Refugees and family members don’t have the three month test; but both EU and UK citizens returning from abroad, who are not working, are subject to the test. If Ms May was saying only that there’s to be a three-month residence requirement for everyone, she wouldn’t need to wait for Brexit; it would be compatible with EU law now.
The main restriction that actively affects non-EU migrants is something quite different: the restriction of the terms of entry on their visa, where they undertake not to be dependent on public funds and are threatened with deportation if they do. Treating EU migrants in the same way could only happen after Brexit. It would mean that the issue is not mainly about benefit law at all, but about the way that Britain deals with foreign citizens. It’s only workable if we have a straightforward way of identifying who is, and who is not, a migrant, and a clear record of the terms of entry. That could affect millions of people.