Paying their Way? Contesting ‘Residence’, Self-sufficiency and Economic Inactivity Barriers to EEA Nationals’ Social Benefits: Proportionality and Discrimination

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Migration to the UK by nationals of other EU States in exercise of their European Union 'free movement' rights, is in practice closely regulated by a range of complex barriers that derive from both EU and UK legal sources, including a combination of immigration law, social welfare law, and labour law. The article considers this. In particular, it examines the requirement that nationals from European Economic Area countries and their family members should either be 'economically active' or 'self-sufficient', and should not become a burden on the UK’s social assistance system, in order to acquire a right to reside. Take-up and retention of employment can be particularly problematic, particularly given the short-term, often insecure nature of much of the employment that is available to new arrivals. Notwithstanding the significant numbers of workers employed in key sectors of the UK's labour market, including the NHS, healthcare, and agriculture (and needed by employers in those sectors),the right to reside regime can produce a lot of difficulties.

Acquisition and maintenance of residence rights is in most cases essential to accessing a range of social rights, including social housing, community care, and income benefits. The article considers this, and recent developments that inform the scope for reliance on proportionality and discrimination requirements when contesting adverse decisions. Among other things, the article offers a critical commentary on EU Law and guidance from the EU Commission, as well as UK judicial approaches to 'residence' in leading cases like Patmalniece (Supreme Court), and Abdirahman (Court of Appeal) in which economic inactivity was equated to a failure to integrate - a discourse which, as the article argues, could in time become highly problematic, particularly for younger residents from other EU countries.