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

Migration to the UK by nationals of other EU States, and exercise of 'free movement' rights, is in practice subject to a range of complex barriers that derive from both EU and UK 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 in practice be particularly problematic, particularly given the short-term, often insecure nature of much of the employment that is available to new arrivals.

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.