Political Changes to Article 45

BY Author IN immigration law

The free movement of economically employed workers and their families is established in Article 45 of the Treaty of the Functioning of the European Union. Articles 46 and 48 allow the institutions of the EU, i.e. the Commission or Council, to enforce initiatives towards the member state which cooperate with the purpose of establishing an open market in labour. These initiatives, which are shown through Regulations or Directives, are further implementation; they micro-management specific areas of employment. Although, since 2006 and 2011 there have been two initiatives which have compiled all the rules of free movement of workers and expressed them in two main official papers. These are the Citizen Rights Directive and Regulation 492/11.

There is no single definition of the term ‘worker’ as it is considered an EU concept and therefore holds a large characterisation that is immune to constant language boundaries which a definition would provide. In Lawrie-Blum, the core of employment involves a person performing services, for a certain period of time, for and under the direction of another in return for which he receives remuneration. In Levin, any part time work whose income does not provide sufficient means of support will still be considered a worker providing the employment is genuine, not marginal or incidental and of an economical nature. In Trojani, the decision of whether someone was a worker was given back to the national courts but they were advised to consider whether the work was ‘capable of forming part of the labour market’.

However, since March 2014, the Department of Work and Pensions in the UK has implemented new rules which require a person to earn £150 per week, which works out to 24 hours per week at national minimum wage, for them to be concerned a worker. If they do not achieve this standard, the UK courts will have to consider whether the work is genuine and not marginal through the wider criteria of EU case law. However, the European Commission has stated this to be a breach of European law because it begins to define the definition of a worker from the amount they earn, there-by restricting who is considered as a worker. The Commission has asked for a detailed response of reasoning behind the application of the rule. As long as the this new rule does not replace the previous EU law but simply steers their attention to cases which need further examination, then the rule could be justified.

The EU courts further extended the definition to include job seekers or those searching for work. In the UK, migrants have up to 6 months to look for work before they will be asked to leave. This is confirmed in January 2014 by the Department of Work and Pensions. However, this is subject to the limitation that they can stay in the member state if they can show evidence of actively seeking employment with the ‘genuine’ chance of gaining work, as confirmed by article 14(4)(b) of Citizen Rights Directive. In the UK, the applicant will be asked to take a ‘Genuine Prospect of Work’ Assessment to prove this ‘real link’ to the economic labour market. However, there is no time limit specified for how long a person can retain the status of a worker whist job seeking. It could be believed that it is open ended but it is suspected that no job seeker allowance claims will continue beyond the point of 9 months.

Since citizenship was established, the rights for workers have increased. In the UK, the government is not obliged to give social assistance to job seeking migrants in the first 6 months. However, benefits of a financial nature which, are intended to facilitate access to the labour market cannot be regarded as constituting social assistance if a ‘real link’ between the jobseeker and the labour market of that Member State exists. Therefore, Job-seeker allowance can be given to migrants if they are genuinely looking for work.

This real link test has been used to further justify forms of residence requirements in Member States.Examples of this is the ‘habitual residence’ test in the UK which since January 2014, the EEA National or returning UK National will have to prove they have been living in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland for the three months immediately before they are eligible to claim for Jobseekers Allowance. Also, since July 2014, EEA job seekers will not be able to claim either child benefit or tax credits until they have lived in the UK for three months. The UK government is trying to distinguish between the freedoms of workers to enter and boost the labour market and ‘benefit tourist’ who become a strain on the host member states economy.

Conversely, due to political pressure the coalition government have, since April 2014, implemented measures which halt all housing benefits for job seeking EEA nationals, even if they are receiving income-based jobseeker’s allowance. All these requirements establish a boundary for EEA nationals and could become a non-discriminatory set of rules which could prevent migrants from coming over to reside in the UK. The European Commission has branded these changes as illegal and contrary to Article 45. They have taken the first steps to judicial review and are waiting for a detailed response from the UK to explain their reasoning.