The Limits to European Social Citizenship in the United Kingdom

DOIhttp://doi.org/10.1111/j.1468-2230.2005.00545.x
AuthorPhilip Larkin
Date01 May 2005
Published date01 May 2005
LEGISLATION
The Limits to European Social Citizenship in the
United Kingdom
Philip Larkin
n
INTRODUCTION
The limitations surrounding eligibility for social security bene¢ts involve many
di¡erent, and often competing, policydecisions. One such setof restrictions, cur-
rently the cause of co nsiderable public debate, is the limit imposed o nthe right to
claim income-based social security bene¢ts for those persons who, despite being
citizens of a Member State of the European Union (EU), ora country within the
European Economic Area,
1
are not United Ki ngdom national s. For a decade the
right of such people to means-tested bene¢ts was dependent on whether they
were deemed to be‘habitually resident’ in the United Kingdom, a term laid down
in Regulations.
2
Article 39 EC explicitly provides for the free movement of
workers throughout the EU, and European Regulation 1612/68 EEC
3
allows
workers from each Member State the same tax and social advantages as nationals
of other Member States. But United Kingdom legislation has insisted that Eur-
opeanmigrant workers demonstrateat least some willingness to be both resident,
and have some tangible connection to the nation before eligibility for income-
based out of work bene¢ts is granted to them.
4
The Social Security (Habitual Residence) Amendment Regulations 2004,
5
which came into forceon 1 May 2004 after a detailedreport by the SocialSecurity
Advisory Committee,
6
have replaced ‘habitual residence’ with the concept of
‘right to reside’ as the primar y eligibility criter ion for income-bas ed unemploy-
ment and incapacity for work bene¢ts.This entails that migrants from the more
established EU countries must possess the right to reside and be habitual ly resi-
n
Department of Law, University of Wales, Swansea.The author would like to thank Professor Liz
MacDonald and Professor NickWikeley for their helpful comments on earlier drafts of this Note.
1 The European Economic Area (EEA) is comprised of the EU countries together with Norway,
Iceland and Liechtenstein.
2 The ‘habitual residence’rule ¢rst appeared in the Income-RelatedBene¢t Schemes (Miscellaneous
Amendments) (No.3) Regulations 1994. See below.
3 Di scussed below.
4 He ncethe i nsistence on the criterion of ‘habitual residence’in the Regulations. See n 2, above.
6The SocialSecurity (HabitualResidence) Amendment Regulations 2004 (S.I. 2004 No. 1232) (20 04) Cm
6181,The Stationery O⁄ce, London. For more on the role of this committee, see M. Bett,‘The
Roleof the Social SecurityAdvisory Committee’ (1994) 3 JournalofSocialSecurityLaw105.See al so
A. Ogus,‘SSACas a n Independent AdvisoryBody: Its Roleand In£uence on Policymaking’ (1998)
5JournalofSocialSecurityLaw156.
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(3)MLR 435^447

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