Struggles over social rights: Restricting access to social assistance for EU citizens
| Published date | 01 March 2023 |
| DOI | http://doi.org/10.1177/13882627231167653 |
| Author | Sandra Mantu,Paul Minderhoud |
| Date | 01 March 2023 |
| Subject Matter | Articles |
Struggles over social rights:
Restricting access to social
assistance for EU citizens
Sandra Mantu and Paul Minderhoud
Centre for Migration Law, Radboud University, The Netherlands
Abstract
The legal category under which EU citizens exercise their right to free movement –worker, job-
seeker, student or economically inactive - determines access to social rights in the host state and
leads to differential inclusion in the welfare state. The right to equal treatment in relation to wel-
fare entitlements has been subject to constant litigation before the European Court of Justice,
leading to the refinement of the conditions under which migrant EU citizens can access welfare
and the implications of such requests for their right to reside in an EU state. Moreover, while
the conditions of access to an EU host state’s welfare system are set at the EU level, the delivery
of welfare takes place at the national and local levels, making national administrations and bureau-
crats important actors in the governance of welfare. The aim of this article is to tease out the rela-
tionship between different levels of jurisdiction in the governance of access to the welfare state.
We rely on data from 11 Member States in which we monitored the application of the relevant EU
legislation and case law during the time frame 2016–2020. The main trends we discern are a grow-
ing interdependence between immigration and welfare authorities and a move towards the sys-
tematic control of all EU applicants for social assistance in several states. We argue that these
developments are facilitated by the turn in the CJEU’s jurisprudence that limits entitlement to wel-
fare for economically inactive EU citizens and emphasises conditionality and legal residence as the
main axes determining access to the welfare state.
Keywords
Welfare state, equality, CJEU, residence, sufficient resources
Corresponding author:
Sandra Mantu, Centre for Migration Law, Radboud University, The Netherlands.
Email: sandra.mantu@ru.nl
Article
European Journal of Social Security
2023, Vol. 25(1) 3–19
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13882627231167653
journals.sagepub.com/home/ejs
1. Introduction
Legally, European Union (EU) citizenship is linked to a form of mobility centred around the citi-
zen’s right to move among the EU states and those states’diminished capacity to refuse entry and to
terminate residence rights. EU citizens are free and encouraged to move as well as promised that if
they do so they will be treated equally with the nationals of the host state, including in the sphere of
social rights and access to the welfare state. The host state and its administration are obliged as a
matter of EU law to treat the nationals of other EU states not with the suspicion they normally
reserve for non-EU migrants whose presence needs justification, but as fellow ‘citizens’who
have a right to be present on state territory. The fact that EU citizens enjoy a right to equal treatment,
while host states must justify treating them differently is a noteworthy feature of the EU system of
free movement. In international law, it is generally accepted that states can discriminate against for-
eigners on nationality grounds. These legal premises of EU citizenship promise to transform for-
eigners into citizens but this promise has been asymmetrically fulfilled depending on whether
one looks at social rights, protection against expulsion or family reunification rights (Mantu
et al., 2019).
More fundamentally, the promise of ‘citizenship’may fail to fully materialise because the
Member States still enjoy a residual power to exclude EU citizens and the right to mobility is con-
ditional upon performance of an economic activity or financial self-sufficiency. The latter condition
is linked to the desire to protect the social assistance systems of EU states from free riders and
abusers. Equal treatment concerning social rights is activated only when the person is legally resi-
dent in accordance with EU law and differently constructed depending on whether one is a worker
or an economically inactive person. Therefore, EU citizenship has been labelled as ‘market citizen-
ship’: despite the language of equality that accompanies it, EU citizenship essentially benefits eco-
nomically active persons who contribute to the EU’s internal market (Dale and El-Enany, 2013;
O’Brien, 2016; Ristuccia, 2023). The legal category under which EU citizens exercise their right
to free movement –worker, jobseeker, student or economically inactive –determines access to
social rights in the host state and leads to differential inclusion in the welfare state (Articles 7
and 24 of Directive 2004/38). Thus, equal treatment works at its best and most generous where
it is underpinned by the citizen’s contribution to the ‘market’but less so where the EU citizen is
economically inactive and poor. Duration of residence is another important factor since after acquir-
ing permanent residence status, EU citizens enjoy equal treatment with nationals in the social
sphere.
In practice, social rights are a contested aspect of EU citizenship since they disrupt nationally
bounded welfare states by demanding the incorporation of EU migrant citizens based on the prin-
ciple of equality. This is an area where the tensions between the national and EU levels are very
much at play. While the EU level creates transnational social rights and sets out the conditions
of access to an EU host state’s welfare system, the delivery of welfare takes place at the national
and local levels, making national administrations and bureaucrats important actors in the govern-
ance of welfare. To tease out the relationship between different levels and actors in the governance
of access to the welfare state, we use data from 11 Member States in which we monitored the appli-
cation of the relevant EU legislation and case law during the time frame 2016–2020. Our compara-
tive analysis of legal practices illustrates how EU social citizenship is being constricted as a result of
the growing interdependence between immigration and welfare authorities underpinned by techno-
logical fixes and the move towards the systematic control of all EU applicants for social assistance
in several states. We argue that these developments are facilitated by the turn in the jurisprudence of
4European Journal of Social Security 25(1)
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