Welfare rights, austerity and the decision to leave the EU: influences on UK social security law

Neville Harris*, School of Law, University of Manchester

There are significant implications for social security in the UK arising from austerity and Brexit. This article examines how legal developments relating to the provision of welfare benefits, within these two major, ongoing, policy phases, are being influenced by a range of mainly political and economic factors. It seeks to demonstrate how their susceptibility to these influences underlines the vulnerability of rights in this field.

Introduction

The potential responsiveness of social law to social need greatly depends on how policy is shaped by the prevailing political and economic environment in individual states at any point in time. Over the past decade this environment has been influential within two distinct and overlapping policy phases: the retrenchment of welfare under austerity in the wake of a global financial crisis; and Brexit, the planned withdrawal of the UK from the European Union (EU). This article analyses these influences and their impact on social security rights. It considers, first, the fundamental principles and aims of social security provision by welfare states, reflected also in the international frameworks of social rights, which prescribe fairly flexible standards and afford a high degree of national autonomy. There follows a discussion of relevant austerity-related policies and the range of legal challenges in the UK concerned with their impact in specific circumstances. The discussion then moves on to Brexit and its possible impact on UK social security law. The political imperatives and ideological predispositions driving Brexit have also underlain the successive tightening of EU migrants’ rights to welfare over a number of years. The article concludes by considering the vulnerability of social rights to political and economic forces in the light of developments in these key policy phases.

Brexit is also considered from a devolution perspective, particularly the extended legislative autonomy of Scotland over matters of social security and the special situation of Northern Ireland in relation not only to devolved welfare but also cross-border social security issues, in separate articles in this issue of the journal.1

Social Rights, Social Security and the Welfare State

1* Professor of Law. neville.harris@manchester.ac.uk. The author would like to thank the anonymous referees for their helpful comments on the submitted version. See also M Simpson, ‘Renegotiating Social Citizenship in the Age of Devolution’ (2017) 44(4) Journal of Law and Society 646-673.

Welfare states develop in different ways, their character being shaped by prevalent ideological and cultural factors. The best known typology is that of Esping-Andersen, referring to conservative, liberal and social-democratic types,2 although many welfare states are hybrids of them.3 Welfare states are also dynamic and constantly re-adjusted in line with politically- and economically-driven policy shifts, exemplified by the austerity based policies of the past decade in many European states. There are differences between national systems, but they share many fundamental principles and aims which are reflected in the aspirational frameworks of universal rights established internationally (below). Modern welfare states share a broad mission to fulfil normative social expectations about the basic requirements of human organisation and personal welfare and development, even though a particular emphasis may be placed on distinctive values, for example reciprocity or solidarity.4 The Beveridge Report,5 which had an influence beyond the UK,6 established the basic notion of a guaranteed minimum subsistence level and universal coverage, a protection against the contingencies that can lead to “Want”. Today, it is universally accepted across modern democratic states that welfare systems’ core aims are to ensure social stability, reduce destitution, provide for various social contingencies, and promote greater equality of income and consumption.7 Subsidiary but prominent aims concern maintenance of incentives to work and promotion of familial intra-dependence.

The international legal frameworks concerned with social and economic rights reflect, inter alia, the broad principles and values on which state controlled welfare systems are based. Thus the right to social security under the UN Declaration on Human Rights8 and the International Covenant on Economic, Social and Cultural Rights make this a right of “everyone”.9 In addition to universalism, the principle of equality is also advanced, for example under the European Convention on Human Rights (ECHR)10 (although the right to social security itself is implied from the right to respect for property and possessions under Article 1 of the First Protocol (A1P1)).11 The UN Convention on the Rights of the Child (UNCRC) recognises the right of the child to “benefit from social security, including social

2 G Esping-Andersen, Three Worlds of Welfare Capitalism (Cambridge University Press, 1990).The typology identifies Conservative welfare states (Austria, France, Germany and Italy) making provision but in a way that preserves the social class and institutional structures and does not promote redistribution; liberal welfare states (such as Australia, the USA and Canada) limiting universalism, promoting private provision (such as insurance) and offering selective support (often means-tested); and social-democratic welfare states (such as Sweden) which are associated with universalism and egalitarianism. 3 See W Arts and J Gelissen, ‘Three Worlds of Welfare Capitalism or More? A State-of-the-Art Report’ (2002) Journal of European Social Policy 137.4 See M Plantinga, ‘The Public Interests of Social Security: A Social Science Perspective’, in G Vonk and A Tollenaar (eds) Social Security as a Public Interest. A Multidisciplinary Inquiry Into the Foundations of the Regulatory Welfare State (Antwerp: Intersentia, 2010), 49-66 at 58-59. 5 W.H. Beveridge, Social Insurance and Allied Services (Cmd.6404) (HMSO,1942).6 See J Hills, J Ditch and H Glennerster (eds), Beveridge and Social Security. An International Retrospective (Clarendon Press Oxford, 1994).7 D Ghai, Social Security Priorities and Patterns: A Global Perspective (Geneva: ILO, 2002), 4. 8 UN Declaration on Human Rights (1948), Art.22. See also Article 25, providing for ‘a right to a standard of living adequate for health’ and to ‘security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond [the individual’s] control’.9 International Covenant on Economic, Social and Cultural Rights (1966), Art.9.10 ECHR Article 14.11 See Stec v United Kingdom Appln Nos. 65731/01 and 65900/01.

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insurance”12 as well as to “a standard of living adequate for their physical, mental, spiritual moral and social development”.13 The UN Convention on the Rights of Persons with Disabilities requires recognition of the rights of persons with disabilities to an adequate standard of living for themselves and their families and to have access to “social protection programmes and poverty reduction programmes”.14 In the EU context, the Charter of Fundamental Rights “recognises and respects the entitlement to social security benefits” and to “social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources”, while the social security rights of migrants and certain others are also recognised as requiring protection under EU and national legislation.15 The revised European Social Charter of the Council of Europe adopts the principle that all “all workers and their dependents (sic) have the right to social security”.16

These rights are related to a need for resources to ensure a sufficient standard of living and guarantee enjoyment of a “social minimum” related to well-being, autonomy and social participation.17 But the level of resources required by the state to cater for diverse needs across the population makes welfare provision a politically and economically sensitive policy area. Provision may be vulnerable and this is compounded by the limited safeguards provided by internationally agreed minima for social security, which afford interpretive flexibility and mostly lack specificity regarding expected entitlement levels.18 This is true of the ILO’s Social Security Minimum Standards Convention (and specialised instruments on specific areas of social security),19 the ILO Social Floors Recommendation,20 and the European Code of Social Security.21 The revised European Social Charter requires a social security system to be maintained “at a satisfactory level” at least equal to that prescribed in the European Code of Social Security.22 Enforcement of these standards is weak or virtually non-existent. Moreover, compliance with them, including the recommendations and conclusions arising from monitoring and reporting, has been reducing as states “consider it politically favourable to ratify international and European social security instruments, but…

12 UN Convention on the Rights of the Child (1990), Art.26.1. See further N. Harris, ‘Social Security and the UN Convention on the Rights of the Child’ JSSL (2000), 7(1), 9-34 and J. Fortin, Children’s Rights and the Developing Law 3rd edn (Cambridge, Cambridge University Press, 2009), 122–126.13 UN Convention on the Rights of the Child (1990), Art.27.1.14 Art.28.1 and 28.2.15 Charter of Fundamental Rights of the European Union (2000/C 364/01), Art. 34. In the case of EU legislation, see Regulation 883/2004 on the co-ordination of social security systems (corrected version) [2004] OJ L200/1 and article 42 of the EC Treaty (now article 48 of the Treaty on the Functioning of the European Union post the Treaty of Lisbon). See also Directive 2004/38 of April 29, 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L 158/77. 16 Article 12.17 J King, Judging Social Rights (Cambridge: Cambridge University Press, 2012), 29.18 U Kulke and E Saint-Pierre Guilbault, ‘The Social Protection Floors Recommendation, 2012 (No. 202): Completing the standards to close the coverage gap’, (2013) International Social Security Review 66, 3-4, 87-109.19 1952, No.102 and see F Pennings (ed), Between Soft and Hard Law: The Impact of International Social Security Standards on National Social Security Systems (The Hague: Wolters Klewer, 2006). See also F. Pennings, International Social Security Standards (Antwerp: Intersentia, 2007) and U Becker, F Pennings and T. Dijkhoff (eds), International Standards Setting and Innovations in Social Security (Alphen aan den Rijn: Klewer Law International, 2013).20 2012, No. 202.21 (1964 (ETS No. 048), Revised 1990) – ratified by the UK in 1968 and in force from 1969.22 Council of Europe’s European Social Charter (Revised) (1996), Art.12.

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the political will to implement them is often lacking”.23 The UK was recently criticised for failing to ensure that contributory jobseeker’s allowance (JSA) and survivors’ benefits rates reached the minimum level set by the ILO’s Standards.24 Within the EU, the monitoring of Member States’ social security systems is primarily focussed on their “economic and financial soundness” and ignores indicators, such benefit levels relative to wages (replacement ratios), indicating how well a system can realise core aims of fairness, redistribution or solidarity.25 So, there are flaws in how standards are both constructed and applied. Ultimately, as Young argues, by “presenting a veneer of objectivity and by allowing measures to become the ends rather than the means of rights fulfilment (sic), indicators and benchmarks – or at least their fixed or uncritical usage – can flout the substantive promise of human rights” notwithstanding their potential utility in international monitoring and comparative analysis.26

The ECHR offers potential enforceability, but the rights themselves have been undermined by the wide margin of appreciation or ‘margin of discretion’ accorded states. This means, inter alia, that states are “allowed to adopt measures for the good of the national economy which may restrict guaranteed rights, always provided the principles of legality, proportionality and legitimacy of the aim pursued are not infringed”.27 In Stec v UK,28for example, the different pension ages for men and women affected the duration of entitlement to a Reduced Earnings Allowance (REA) for people whose earning capacity was affected by an accident at work or work-related illness. Since, at the time, women’s retirement age was 60 and men’s 65, women’s REA ended five years earlier than men’s.29 In its judgment declaring the arrangements not to conflict with A1P1 read with Article 14, the Court explained:

Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’.30

This “manifestly without reasonable foundation” test has been applied in a number of social security cases in the UK31 and has, for example, enabled the Government to resist some discrimination-based challenges in adopting restrictive policies on the benefit cap32 and

23 T Dijkhoff, ‘Supervision of social security standards: Between law and politics’, in F Pennings and G Vonk, Research Handbook on European Social Security Law (Edward Elgar, 2015), 170-200, at 195.24 ILO, Application of International Labour Standards 2017 (I)¸Report of the Committee of Experts on the Application of Conventions and Recommendations. Report III (Part 1A) (Geneva: ILO, 2017), 565-566.25 P Schoukens, EU Social Security Law: the hidden ‘social’ model (Tilburg; Tilburg University, 2016).26 K G Young, Constituting Economic and Social Rights (Oxford: OUP, 2012), 92-95.27 A Gómez Heredero, Social Security as a Human Right (Strasbourg, Council of Europe, 2007), 8.28Stec v United Kingdom Appln Nos. 65731/01 and 65900/01.29 See also Runkee and White v United Kingdom Appln No. 42949/98.30 Stec v United Kingdom Appln Nos. 65731/01 and 65900/01 at [52]. See also Carson v United Kingdom (Application no. 42184/05) and R (Carmichael and Rourke) v SSWP; R (Daly) v SSWP; R (A) v SSWP; R (Rutherford) v SSWP [2016] UKSC 58.31 See in particular the House of Lords’ decision in R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 and the UK Supreme Court decisions In R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 and Humphreys v Revenue and Customs Commissioners [2012] 1 WLR 1545. 32 R (SG) (previously JS) v Secretary of State for Work and Pensions [2015] UKSC 16. See below. For detailed analysis of SG, see P M Larkin, ‘Delineating the Gulf Between Human Rights Jurisprudence and Legislative

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income support in respect of mortgage interest for persons with disabilities (both discussed below).33

The test received a particularly stern examination in the grouped appeal in four cases34 in the UK Supreme Court (UKSC) concerning the reduction in housing benefit support (under reg.B13 of the Housing Benefit Regulations35) for claimants living in accommodation classed as too expansive in relation to the size of their household: the so-called ‘bedroom tax’. The appeal concerned its application to claimants (or their children) with disabilities and, in one case, a victim of domestic violence. By a majority the Court found that the Stec test (above), as applied in Humphreys,36 was the correct one to apply in determining whether the disadvantaged position of the claimants rendered the legislation disproportionate, having regard to the potential availability of alternative support via discretionary housing payments from the local authority:

The broad question which faced the Secretary of State in relation to Reg B13 and its potential impact on those with disabilities was whether to try to deal comprehensively with all problems of those who have any kind of disability (including social needs not dissimilar to those of other groups) within the precise rules of the regulation, or whether to accommodate them by a linked system of discretionary benefits. This is in my view a clear example of a question of economic and social policy, integral to the structure of the welfare benefit scheme, and it would not be appropriate to depart from the court’s normal approach.37

The Court found that the test had been misapplied in relation to two of the cases under consideration38 but not in the others.

A recent further example is Stevenson,39 where a claimant with disabilities complained that the capping of her mortgage interest support under the income support scheme with reference to a loan limit of £100,000, whereas a higher, £200,000, limit would have applied if she had started to receive income support after 4 January 2009, was unlawfully discriminatory.40 The Court of Appeal did not consider that the difference in treatment, based on a cut-off date, was manifestly without reasonable justification, since

considerations of cost (at a time of general financial stringency in the public sector), administrative convenience, and the need to ration scarce resources, will usually provide a sufficient justification for ‘bright line’ tests of that nature, or will at least fall within the broad margin of appreciation permitted to States in the field of social policy.41

Austerity: the Judicial Entrenchment of “Less-Eligibility”’ (2016) 23 JSSL 42-63.33 Stevenson v Secretary of State for Work and Pensions [2017] EWCA Civ 2123.34R (Carmichael and Rourke) v SSWP; R (Daly) v SSWP; R (A) v SSWP; R (Rutherford) v SSWP [2016] UKSC 58.35 Housing Benefit Regulations 2006 (SI 2006/213).36 Humphreys v The Commissioners for Her Majesty’s Revenue and Customs [2012] UKSC 18 at [19] per Lady Hale.37 R (Carmichael and Rourke) v SSWP; R (Daly) v SSWP; R (A) v SSWP; R (Rutherford) v SSWP [2016] UKSC 58 per Lord Toulson at [36].38 Namely Rutherford and Carmichael, where Article 14 read with Article 8 was infringed.39 Stevenson v Secretary of State for Work and Pensions [2017] EWCA Civ 2123.40 This was on the basis of her status as a person with disabilities who started receiving income support pre-January 2009 as compared with a disabled person whose benefit started after that date.41 Stevenson v Secretary of State for Work and Pensions [2017] EWCA Civ 2123, at [81] per Henderson LJ.

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Although, in a largely ECHR-based challenge in 2017 to the personal independence payment (PIP) amendment regulations which were designed to ensure the exclusion from certain mobility-related descriptors in cases of inability resulting from ‘psychological distress’, Mostyn J very recently found the legislative changes ‘blatantly discriminatory against those with mental impairments’ and viewed the expected saving of ‘nearly £1 billion a year at the expense of those with mental health impairments’ as ‘not a reasonable foundation’ for the amendments,42 the decisions as a whole have underlined the high threshold for possible intervention under the ECHR applied by the courts in relation to social security.

It is instructive in this regard to consider the distinction made by Lady Hale in Tigere.43 A student loan was denied to a young woman originally from Zambia, on the grounds of her immigration status as a person with discretionary leave to remain in the UK. In determining whether this constituted unlawful discrimination under Article 14 read with Article 2 of the First Protocol (A2P1), which guarantees the right to education, Lady Hale, with whom Lord Kerr agreed, held that the matter should be decided on the basis of justification but not the “manifestly without reasonable foundation” test, since “education (unlike other social welfare benefits) is given special protection by A2P1 and is a right constitutive of a democratic society”.44 She considered that the harm to the complainant and others could not be outweighed by the administrative benefit from applying the bright line rule in question.45 Lord Hughes took a similar view although was equivocal as to “whether the test is correctly characterised as a decision ‘manifestly without reasonable foundation’ or as some less stringent condition”.46 The minority (Lord Sumption and Lord Reed) took a more cautious line consistent with the social security cases: the issue was one of “social and economic evaluation” requiring “political and administrative judgment” and not one for the judges, provided the discrimination on the basis of residence and settlement was “not ‘manifestly without reasonable justification’”.47

The categorisation of education, but not social security, as the subject of “a right constitutive of a democratic society” follows the line of reasoning of the European Court of Human Rights (ECtHR) in Ponomaryov v Bulgaria48 noting that education is a right enjoying direct protection under the Convention, in A2P1, unlike other public provision such as social security.49 A right to social security is, as noted above, only recognised for ECHR purposes implicitly, through an interpretation of the A1P1 property protection right. Furthermore, the ECtHR saw education as a “very particular type of public service, which not only directly benefits those using it but also serves broader societal functions”, including furtherance of human rights themselves.50 However, does public provision designed to prevent poverty and destitution deliver any less societal benefit than education? Marshall’s much cited concept

42 RF v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin), per Mostyn J at [59].43 R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57.44 Per Lady Hale at [32].45 Ibid at [41].46 Ibid at [58].47 Ibid at [100].48 (Application No 5335/05) (2011) 59 EHRR 799.49 Ponomaryov v Bulgaria (Application No 5335/05) (2011) 59 EHRR 799 at [55].50 Ponomaryov v Bulgaria (Application No 5335/05) (2011) 59 EHRR 799 at [55].

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of social citizenship recognises access to welfare as among the rights attached to it.51 Moreover, although a right to social security is not expressly included on its face, the Convention is to be regarded as a “living instrument, to be interpreted in present day conditions”.52 That interpretation has enabled the ECtHR to “recognise and protect various rights outside the text of the Convention”.53

Austerity: economic and political threats to social rights

In view of governmental discretion over matters of social and economic policy and the huge cost of welfare benefits provision it is not surprising that social security is at particular risk of cuts at times of significant public expenditure restraint. One can find historical examples, such as the emergency curtailment of unemployment benefit during the slump of 1930-31, which left one million citizens excluded,54 in addition to the retrenchment post the global financial crisis of a decade ago, when social security became “a prime target for austerity”.55 That is not to overlook the way that reduced welfare provision may also suit ideological or moral agendas. For example, while increased conditionality including new activation conditions56 and sanctions has aimed to reduce welfare dependency and thus state expenditure, the measures “go beyond fiscal retrenchment, and are aimed at the fashioning of ‘virtuous’ citizens out of benefit claimants”57 or play to notions of “fairness” as between people in different social circumstances.58 As Meers says, “the economic principles behind austerity are invariably accompanied by the political promotion of individual responsibility”.59 Civitarese Mattuecci and Halliday explain how austerity can be regarded as not merely a response to the 2008 crisis but a “chapter in the neoliberal phase in the welfare state” that began around 40 years ago.60 This is borne out by Adler and Inge Terum’s examination of conditionality and the use of benefit sanctions in six European countries, which casts doubt on the presumed association between austerity and increased conditionality and indicates instead political scepticism surrounding unconditional rights and a wish to recalibrate the balance between rights and responsibilities and exert greater controls over the supply of services.61

51 T H Marshall, ‘Citizenship and Social Class’, in T H Marshall and T Bottomore, Citizenship and Social Class (London: Pluto, 1992), 3-51. For discussion, see N Harris et al, Social Security Law in Context (Oxford: OUP, 2000), 20-31. 52 X and Others v Austria (Application no.19010/07) at [139].53 I Trispiotis, ‘Two interpretations of “living together” in European human rights law’ (2016) CLJ, 580 at 593.54 R C Davison, British Unemployment Policy. The Modern Phase since 1930 (London: Longmans, 1938), 15; N. Harris et al, Social Security Law in Context (Oxford: OUP, 2000), 81-82.55 J Tucker, The Austerity Generation: the impact of a decade of cuts on family incomes and child poverty (London: CPAG, 2017), p.8.56 As for example governing the universal credit “Claimant Commitment”: see the Welfare Reform Act 2012, s.4(1)(e) and s.1457 P M Larkin, ‘The New Puritanism: The Resurgence of Contractarian Citizenship in Common Law Welfare States’ (2014) JLS, 41(2), 227-256, 228. 58 J Meers, ‘The United Kingdom’ in S Civitarese Mattuecci and Simon Halliday (eds), Social Rights in an Age of Austerity: European Perspectives (Routledge, 2018), 122-146 at 138.59 J Meers, ‘The United Kingdom’ in S Civitarese Mattuecci and Simon Halliday (eds), Social Rights in an Age of Austerity: European Perspectives (Routledge, 2018), 122-146 at 126.60 S Civitarese Mattuecci and Simon Halliday, ‘Social rights, the Welfare State and European Austerity’ in Idem (eds), Social Rights in an Age of Austerity: European Perspectives (Routledge, 2018), 3-23 at 12.

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Retrenchment of welfare provision has occurred under many European states’ austerity measures.62 In the UK, there were social security cuts totalling £14.5bn between 2010-15, impacting particularly on people of working age and those with dependent children.63 Austerity-related benefit changes to date have included the introduction of:64 a benefit cap, set initially at £350 per week, or £18,200 per annum, for single people and at £500, or £26,000 per annum, for couples and lone parent households;65 a new limit on the level of rent attracting housing benefit support;66 and a freezing of rates of benefit and tax credit67– with a four-year freeze on benefit rates from 2016 after five years during which uprating was pegged at a below-inflation 1% per annum.68 In September 2017, in the period after the freeze was introduced, the underlying inflation rate (consumer prices) reached 3.0%.69 Research has indicated70 that by 2020, 470,000 more people in the UK will be in poverty as a result of this policy.71 For the state, however, there is expected to be an overall saving of £3.6 billion.72 In 2014 the Government also introduced a general limit on national expenditure on welfare benefits (apart from pensions and a few others), although the Institute of Fiscal Studies predicted in 2016 that it would be exceeded in each of the next five years.73

61 M Adler and L Inge Terum, ‘Austerity, conditionality and litigation in six European countries’, in S Civitarese Mattuecci and Simon Halliday (eds), Social Rights in an Age of Austerity: European Perspectives (Routledge, 2018), 147-177.62 See in particular, A Albanese, ‘Italy’ and D Utrilla, ‘Spain’ in S Civitarese Mattuecci and Simon Halliday (eds), Social Rights in an Age of Austerity: European Perspectives (Routledge, 2018), 80-97 and 98-121 respectively; D. Edmiston, ‘Welfare, Austerity and Citizenship in the UK’, Social Policy and Society (2017), 16:2, 261-270; M Borzaga, ‘The Italian Social Security System after the Recent Economic and Financial Crisis and the Related Reforms: are Austerity Measures the Right Answer?’ Journal of Social Security Law (2017) 24, 2, 64-81; B Suárez Corujo, ‘Pension System Reforms in Times of Austerity: the Spanish Case’ Journal of Social Security Law (2017) 24, 2, 82-98; and Y Steinebach, C Knill and J Jordana, ‘Austerity or welfare state transformation Examining the impact of economic crises on social regulation in Europe’, Regulation & Governance (2017).63 J Tucker, The Austerity Generation: the impact of a decade of cuts on family incomes and child poverty (London: CPAG, 2017), 9.64 For a comprehensive list of the relevant benefit changes, see Tucker (ibid), 9-13.65 Introduced in 2013 under the Welfare Reform Act 2012 and the Benefit Cap (Housing Benefit) Regulations 2012 (SI 2012/2994), inserting a new Part 8A into the Housing Benefit Regulations 2006 (SI 2006/213).66 This is the local housing allowance (see S. Rahilly, ‘New limits on benefit for rents: the cap that doesn’t fit?’ (2011) 18 JSSL 118-135), which was not extended to tenants of social housing but was planned for such a roll-out as a means of reducing public expenditure on housing benefit (HM Treasury, Spending Review and Autumn Statement 2015 (Cm 9162) (London: HM Treasury, 2015), para 1.125) but the plans were dropped: see e.g. F. Elliott, ‘May scraps council house benefit cap’, The Times, 26 October 2017. 67 Welfare Reform and Work Act 2016, ss 11 and 12.68 The consumer prices index showed increases of 2.2% in 2013-14, 2.7% in 2014-15 and 1.2% in 2015-16: A. Hood and A Norris Keilller, A survey of the UK benefits system. IFS Briefing Note BN13 (London: Institute of Fiscal Studies, 2016), 7-8. 69 This is was 12-month rate: Office for National Statistics, UK consumer price inflation: September 2017 (ONS, 2017) at https://www.ons.gov.uk/releases/ukconsumerpriceindicessep2017 (accessed 4 January 2018).70 Joseph Rowntree Foundation, Briefing for November 2017 Budget: Incomes not keeping up with prices (JRF, 2017). 71 That is, relative income poverty, based on having below “60% of the median income, equivalised for household size, after housing costs”: ibid, 6.72 T Bell, “The end of austerity?” (Resolution Foundation blog) at http://www.resolutionfoundation.org/media/blog/the-end-of-austerity/ (accessed 17 October 2017).73 A. Hood and A Norris Keilller, A survey of the UK benefits system. IFS Briefing Note BN13 (London: Institute of Fiscal Studies, 2016), at 10.

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A further policy, aimed at delivering a ‘sustainable’ welfare system and making claimants reflect on the affordability of having more children,74 has targeted child tax credit (CTC) and Universal Credit (UC) support for children. Families with more than two children will only have entitlement to UC in respect of a third-born or subsequent child if the child was born before 6 April 2017.75 A family with three children would receive at least £3,325 per annum less than under the previous legislation.76 CTC recipients will only be eligible to receive an element for a child born after the above date if there is no more than one other child,77 a reform meaning a loss of £2,780 per annum per additional child.78 These and the other restrictions affecting families, including lone parents, reveal the disproportionate impact of welfare austerity on working-age women as, frequently, the primary carers of children.79

In May 2017 the benefit cap affected 68,000 households.80 It has been a testing ground for the lawfulness of austerity-related changes. In SG, in the UKSC, Lord Reed explained that the cap was introduced in order —

(1) to set a reasonable limit to the extent to which the state will support non-working households from public funds, (2) to provide the members of such households of working age with a greater incentive to work, and (3) to achieve savings in public expenditure at a time when such savings are necessary in the interests of the economic well-being of the country.81

Thus the justifications for it were partly moralistic – to ensure a sense of reasonableness and fairness and to avoid the ‘moral hazard’ arising from welfare dependency – together with the macroeconomic case for limiting state expenditure. SG concerned the benefit cap’s impact on lone parent families, most of which are headed by a woman. Since many more women than men were affected by the cap, it was discriminatory, but by a 3-2 majority the Court held that the policy and the regulations implementing it had a reasonable justification for the purposes of the ECHR Article 14 read with A1P1:

It was inevitable that measures aimed at limiting public expenditure on welfare benefits, addressing the perception that some of the out-of-work were receiving benefits which were excessive when compared with the earnings of those in work, and incentivising the out-of-work to find employment, would have a differential impact on women as compared with men. That followed from the fact that women formed the majority of those who were out of work and receiving high levels of benefit. The Government’s considered view, endorsed by

74 HM Treasury/Department for Work and Pensions, Welfare reform and Work Bill: Impact Assessment of Tax Credits and Universal Credit, changes to Child Element and Family Element (July 2015).75 Welfare Reform and Work Act 2916 s.14, amending s.10 of the Welfare Reform Act 2012 and the Universal Credit Regulations 2013 (SI 2013/376).76 The Children’s Society, Welfare Reform and Work Bill: Report and 3rd Reading – Briefing: Two Child Limit www.childrenssociety.org.uk (accessed 17 October 2017).77 Welfare Reform and Work Act 2016 s.13, amending s.9 of the Tax Credits Act 2012.78 The Children’s Society, Welfare Reform and Work Bill: Report and 3rd Reading – Briefing: Two Child Limit www.childrenssociety.org.uk (accessed 17 October 2017).79 See B. Goldblatt and L. Lamarche, ‘Introduction: Interpreting and Advancing Women’s Rights to Social Security and Social Protection’ in B. Goldblatt and L. Lamarche (eds), Women’s Rights to Social Security and Social Protection (Oxford: Hart, 2017), 1-15; and D. Otto, ‘Gendering the Right to Social Security in the Era of Crisis Governance: The Need for Transformative Strategies’, in Goldblatt and Lamarche (ibid), 215-238. 80 DWP, Benefit Cap. Data to May 2017 (London: DWP, 2017), 1.81 R (SG) (previously JS) v Secretary of State for Work and Pensions [2015] UKSC 16, at [4].

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Parliament, that the achievement of those aims was sufficiently important to justify the making of the Regulations, notwithstanding their differential impact on men and women, was not manifestly without reasonable foundation.82

Since the benefit cap impacts on the rights of children, the UKSC also considered the UNCRC – in particular, the ‘best interests’ principle in Article 3(1).83 There was, however, disagreement among the judges on whether it was infringed and, if it was, if that bore on Article 14 justification.

Another case, DA,84 was decided in June 2017 after the cap was lowered to £20,000 per annum outside London or £23,000 per annum in London for couples and lone parents with dependent children.85 One issue was whether the position of those with children aged under two had been considered by Parliament. A lone parent can avoid the cap by working for 16 hours or more per week, but that can be more difficult for those with very young children. Here reliance was placed on ECHR Article 8, the right to private and family life. Collins J said that —

the effect of the cap means that the children and their parents have restrictions on what can be provided by way of housing, food and other things that an average child should have available. Further, as the ministers have said, it may be necessary to try to move to cheaper accommodation to avoid the effect of the cap so that there will be an upheaval for the family.86

In view of the cap’s potential damage to family life, Article 8 was held to be engaged.87 The court was not persuaded by the Secretary of State’s argument that the treatment of the claimants was justified by need to ensure an incentive to work. Collins J also considered Article 3 of the UNCRC (above) relevant. Overall, there was an unjustifiable and disproportionate impact and a breach of Article 14 read with Article 8 in relation to lone parents with children aged under two. Collins J ended with a barbed criticism of the policy’s impact on such lone parents, most of whom were “not the sort of households the cap was intended to cover”.88 In his view: “Real misery is being caused to no good purpose”.89 This decision seems certain to be appealed by the Government, however.

Austerity-driven measures of the kind challenged in these cases reflect political as much as economic influences. While affordability is seen as one of the major issues for the future of the welfare state,90 and the economic climate accentuates the challenge, the question of where to limit expenditure is as much a political as an economic one. As Diamond and Lodge

82 Ibid per Lord Reed at [96].83 This principle states that ‘In all actions concerning children, whether undertaken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’: UN CRC Art.3.1. See further P M Larkin, ‘Delineating the gulf between human rights litigation and legislative austerity: the judicial entrenchment of “less eligibility”’ (2016) JSSL, 23, 42-63.84 R (on the application of DA) v Secretary of State for Work and Pensions [2017] EWHC 1446 (Admin).85 Welfare Reform and Work Act, s.8.86 R (on the application of DA) v Secretary of State for Work and Pensions [2017] EWHC 1446 (Admin) at [40].87 Article 8 had been held to apply in the ‘bedroom tax’ case: R (MA and others) v SSWP [2016] 1 WLR 4550. 88 R (on the application of DA) v Secretary of State for Work and Pensions [2017] EWHC 1446 (Admin) at [43].89 Ibid.90 A Gamble, Can the Welfare State Survive? (Cambridge: Polity Press, 2016).

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say, welfare state regimes “are inherently political constructions bound together by democratic pressures and electoral forces”.91 Thus UK cuts to public expenditure “have disproportionately affected the young and the poor – precisely those groups that vote the least”,92 whereas the same political factors have meant that “[i]n the austerity programmes of Europe, the interests of pensioners have been safeguarded… which reflects the fact that they are much more likely to vote...”93 In the UK, a “triple-lock”, thus far maintained,94 preserves the value of the state pension through an annual up-rating at the best of three indices.95 The fact that pensions are mostly contributory has aided their immunity from cuts, since the public tend to favour spending on welfare provision based on the contributory principle.96 Although in the more economically stressed Mediterranean states pensions have undergone significant cuts, elsewhere and despite the wider impact of austerity the financial crisis has had a limited impact on them.97 By contrast, unemployment and disability benefits have tended to be targeted for cuts since the political cost is lower.98 For example, in the UK, the threshold of disability governing eligibility for disability benefit has in some respects increased with the introduction of PIP.99 The UN Committee on the Rights of Persons with Disabilities has concluded that the UK’s austerity-related benefit changes have “resulted in severe financial constraints among persons with disabilities and their families… including increased reliance on foodbanks”.100

Brexit: The social security background

The susceptibility of social security rights to economic and political pressures is set to reach a new (but as yet uncertain) high watermark as a result of the UK’s planned withdrawal from the EU. Social security provision has not only been a factor in the economic position of EU migrants but also central to the Brexit story. For many years in the UK there has been both a political and a media preoccupation with the idea that benefits attract inward migration. Public concern about levels of EU migration is played upon by the UK Independence Party (UKIP) and Eurosceptics in general. Restricting the welfare rights of EU migrants has gained political currency. In 2014 the UK had the highest level of immigration

91 P Diamond and G Lodge, ‘Dynamic Social Security after the crisis: Towards a new welfare state?’, (2014) 67(3)-(4) International Social Security Review 37-59, at 44.92 Ibid, 45.93 A Gamble, Can the Welfare State Survive? (Cambridge: Polity Press, 2016), 66.94 Prior to the 2017 General Election there was a commitment by the Government to end the triple lock, but this proposal was abandoned as part of the deal agreed between the Conservatives and the Democratic Unionist Party that was needed to shore up the May Government: C. Osborne, ‘DUP deal: Tories drop changes to pensions triple lock and winter fuel payments to secure working majority’, The Independent (online) 26 June 2017, at http://www.independent.co.uk/news/uk/politics/dup-deal-latest-news-tory-manifesto-promises-drop-pensions-triple-lock-winter-fuel-payments-a7808291.html (accessed 9 November 2017).95 This is a commitment by the government to increase the pension annually in line with the percentage increase in consumer prices, or in average earnings, or 2.5%, whichever rate is the highest. 96 A Gamble, Can the Welfare State Survive? (Cambridge: Polity Press, 2016), 66.97 A G Grech, ‘Convergence or divergence? How the financial crisis affected European pensioners’ (2015) 68(2), International Social Security Review 43-61.98 A Gamble, Can the Welfare State Survive? (Cambridge: Polity Press, 2016), 66.99 See N Harris, ‘Welfare Reform and the Shifting Threshold of Support for Disabled People’ (2014) 77(6) MLR 888-927. Disability benefit recipients are, however, exempt from the benefits cap.100 UN Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of the United Kingdom of Great Britain and Northern Ireland (United Nations, 2017), para 58(a).

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of any EU Member State.101 The Prime Minister confirmed an intention to address “the magnetic pull of the Britain’s benefits system”.102 Yet even a Government report acknowledged the lack of firm evidence that welfare benefits influence decisions to migrate to the UK.103 Furthermore, it was clear that EU migrants were less likely than UK citizens to claim out-of-work benefits and, while they were more likely to receive in-work benefits, many migrants failed to claim them.104 The Government nevertheless progressively restricted social security entitlement whilst simultaneously making freedom of movement and access to benefit central to negotiations with the European Council over the UK’s position in the EU. The failure to secure the significant concessions from the Council seems certain to have contributed to the EU referendum vote of June 2016, the narrowness of the overall majority in favour of leaving making voter sensitivity to any single factor potentially pivotal.

As discussed further below, the Government’s attempt to “demagnetise” welfare benefit105 in earnest had begun in 2014, focusing on non-contributory means-tested benefits classed as ‘social assistance’ under EU law:106 income support, jobseeker’s allowance (JSA) and housing benefit (HB), which collectively are being replaced by UC. Yet, attempting to restrict migrants’ access to welfare benefits has a longer history. It began over two decades ago with the introduction of the “habitual residence” test, satisfaction of which is still a central determinant of eligibility. The intention was to reduce access to benefit “for people who the taxpayer should not be asked to support” and “to deal with the well-documented abuse of… income-related benefits by some non-UK nationals, which has caused public anxiety”.107 It therefore served various agendas of the kind noted above – moralistic, economic and political. If a person was not habitually resident in the UK108 he or she would be considered a “person from abroad” and thus ineligible for benefit. Some migrants were excluded from this additional test, including workers and certain others whose status guaranteed a right to reside in the UK.109 But the test was difficult to apply and there were slight variations in interpreting it in its application to non-EU110 and EU111 migrants respectively. It was also held that proportionality demanded that habitual residence involved only such a period of residence as was needed to ensure a link with labour market;112 but there was a degree of uncertainty surrounding this issue.

The right to reside test

101 Eurostat 2015.102 D Cameron, 29 July 2014.103 HM Government, Review of the Balance of Competences between the United Kingdom and the European Union. Single Market: Free Movement of Persons (London, Cabinet Office, 2014), para.2.55.104 Migration Observatory, Oxford Univ, 2016.105 N. Harris, ‘Demagnetisation of Social Security and Healthcare for Migrants to the UK’ (2016) 18(2) European Journal of Social Security 130-163.106 Regulation 883/2004 on the co-ordination of social security systems (corrected version) [2004] OJ L200/1; Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 on the procedure for implementing Regulation (EC) No 883/2004. 107 Department of Social Security, The Income-Related Benefits Schemes (Miscellaneous Amendments) (No.2) Regulations 1994, Note for the Social Security Advisory Committee (London: DSS, 1994). 108 Or in the Republic of Ireland, the Channel Islands or the Isle of Man.109 By virtue of for the purposes of Council Regulation (EEC) 1612/68 or Council Regulation (EEC) 1215/70.110 Nessa v Chief Adjudication Officer [1999] 4 All ER 677.111 Swaddling v Chief Adjudication Officer (Case C-90/97).112 Collins v Secretary of State for Work and Pensions (C-138/02) [2005] QB 145.

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Greater control was eventually sought via a “right to reside” test. From 1 May 2004113 a “person from abroad” could not be considered habitually resident in the UK114 if he or she lacked “a right to reside” there. EU (or rather EEA) migrant workers satisfied the test and so did migrant workers of eight countries acceding to the EU on that date, and three others acceding subsequently,115 subject to registration under a workers registration scheme.116 Following the introduction of the EU Citizenship Directive in 2006,117 the UK implemented EEA nationals’ right to an initial three months right of residence in another Member State.118

However, EU law permits derogation from the requirement for equal treatment of different nationalities during these initial three months in relation to social assistance.119 The UK took advantage of this power.120 The EEA national could, however, qualify for support after those three months if (or if a family member of) a “qualified person”, namely a jobseeker, a worker, a self-employed person, a self-sufficient person or a student.121 These categories under EU law have not proved clear-cut, however, giving rise to some difficult but important cases.122

The UK’s continual quest to limit the impact of freedom of movement and residence rights on social security entitlement for EU migrants also manifested in significant reactivity to some court judgments extending rights. An example was the response to the Court of Justice of the European Union’s (CJEU’s) decision in Zambrano 123 holding that a Colombian man’s right to reside was acquired via his children’s status as EU citizens with a right to freedom of movement124 due to their Belgian nationality. The amending provisions125 have survived legal challenges in the Court of Appeal126 and, very recently, in the UKSC.127

113 Social Security (Habitual Residence) Amendment Regulations 2004 (SI 2004/1232). 114 Or in the rest of the ‘common travel area’ (above) - the Republic of Ireland, the Channel Islands or the Isle of Man. 115 Bulgaria and Romania acceded in 2007 and Croatia in 2013.116 Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219); the Accession (Immigration and Worker Authorisation) Regulations 2006 (SI 2006/3317); and the Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013 (SI 2013/1460) . The registration scheme condition ended seven years after accession.117 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.118 Article 6 of the Directive, implemented in the UK via the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003).119 Article 24.120 See e.g. the Income Support (General) Regulations 1987 (SI 1987/1967) reg.21AA(2) and (3)(a) and (c). Other benefits subject to a similar restriction are housing benefit, income-based JSA, income-related ESA, pension credit and universal credit.121 SI 2006/1003 above, reg.6(1).122 Saint Prix v Secretary of State for Work and Pensions [2012] UKSC 49 and Secretary of State for Work and Pensions v RR [2013] UKUT 21 (AAC) on worker status and Pensionsversicherungstanstalt v Brey (C-140/12) on self-sufficiency.123 (Case C-34/09) (2011). For detailed analysis of the case and its implications, see C O’Brien, Unity in Adversity: Eu Citizenship, Social Justice and the Cautionary Tale of the UK (Hart, 2017),82-89.124 Under Article 20, Treaty for European Union.125 The Social Security (Habitual Residence) (Amendment) Regulations 2012 (SI 2012/2587), which came into force on 8 November 2012 and the Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012 (SI 2012/2612) were the relevant social security instruments. Changes were also made to homelessness law via the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 (SI 2012/2588).126 Sanneh v Secretary of State for Work and Pensions; Scott v London Borough of Croydon; Birmingham City Council v Merali and Others; R (HC) v Secretary of State for Work and Pensions [2015] EWCA Civ 49.127 R (HC) v Secretary of State for Work and Pensions and Others [2017] UKSC 73.

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Further tightening up128

A raft of changes further restricting EEA migrants’ benefit rights were introduced in 2014 and 2015. They were to a significant degree politically motivated, responding to the growth in immigration from the EU and elsewhere at a time of increasing electoral support for UKIP. In local government elections in May 2014 UKIP captured 150 seats from the Labour and Conservative Parties in a “remarkable performance”.129 The benefit reforms started in January 2014 with a new residence requirement130 of three months for IBJSA,131 although subsequently exceptions were introduced for some UK nationals returning after working abroad or overseas service with HM forces.132 In view of the CJEU’s ruling in Collins133 concerning the need to relate residence requirements to labour market conditions and ensure proportionality by requiring only such period as would demonstrate a real connection with that market, a three months requirement was open to criticism for excessiveness.134 Nevertheless, it was subsequently applied to child benefit and tax credits.135 Although the Government considered the length of the period to demonstrate a reasonable connection with the UK, it presumably also regarded a rigid residence requirement as a simpler basis for deciding than ascertainment and judgement of individual circumstances and motivations.

A six months limit to the duration of IBJSA entitlement was also introduced. “Retained” workers136 who claimed IBJSA while looking for work had to meet two further strict conditions: first, they entered the UK in order to seek work or were looking for work after having a right to reside due to being a worker, self-employed person, self-sufficient person or student; and secondly, they could provide evidence of both seeking employed and having a “genuine chance” of being engaged.137 Retained workers could receive benefit for longer than 6 months but only if there was shown to be “compelling evidence” of a genuine chance to secure employment.138 Jobseekers per se (ie not retained workers) also had to meet this 128 For a detailed analysis of the complex changes, see N. Harris, ‘Demagnetisation of Social Security and Healthcare for Migrants to the UK’ (2016) 18(2) European Journal of Social Security 130-163.129 S. Henderson and L Dearden, ‘Local election results 2014: Full list of how UKIP, Labour, the Tories and Lib Dems have performed’ The Independent (Online), 23 May 2014, http://www.independent.co.uk/news/uk/politics/full-list-of-local-election-results-9422609.html (accessed 25 October 2017).130 Residence in the UK, the Irish Republic, the Isle of Man or the Channel Islands – known as “the Common Travel Area”.131 Jobseeker’s Allowance (Habitual Residence) Amendment Regulations 2013 (SI 2013/3196).132 Jobseeker’s Allowance (Habitual Residence) Amendment Regulations 2014 (SI 2014/2735).133 Collins v Secretary of State for Work and Pensions (C-138/02) [2005] QB 145.134 See C O’Brien, Unity in Adversity: EU Citizenship, Social Justice and the Cautionary Tale of the UK (Hart, 2017), 124.135 For migrants arriving in the common travel area on or after 1 July 2014: The Child Benefit (General) and Tax Credits (Residence) (Amendment) Regulations 2014 (SI 2014/1511).136 Essentially retained workers are those who are not to be treated as workers because of (i) their temporary inability to work due to illness or accident; (ii) those involuntarily unemployed after employment in the UK for at least a year; (iii) those involuntarily unemployed after a shorter period in work and who entered the UK to seek employment and meet other conditions; (iv) certain others who have embarked on vocational training after ceasing to work. See Directive 2004/58/EC Art.7.3 and the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) reg.6(2) and (2A).137 Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), reg.6(2) and (5)-(6).138 Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), reg.6(7)-(8). On the application of the test, see For detailed analysis of the case and its implications, see C O’Brien, Unity in Adversity: EU Citizenship, Social Justice and the Cautionary Tale of the UK (Hart, 2017), 139-142.

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“compelling evidence” test, but from July 2014 their status as jobseekers with a right to reside for benefit purposes was restricted to a maximum of 91 days,139 and the “compelling evidence” test therefore applied to them after this much shorter period.140 There are indications that the “compelling evidence” test has proved very difficult to satisfy since it has been applied in a way that not only demands a near certainty of a job but also of “genuine and effective” work in the form of a job remunerated at a level broadly equating to not less than the minimum earnings threshold (below).141

EEA migrants who sought to claim a “worker” status right to reside were also caught by the general retrenchment. In particular, a new minimum earnings threshold was introduced, as an administrative measure to determine whether a claimant was in “genuine and effective” work. Earnings now had to be at or above the prescribed level142 for at least three months prior to the date of their claim. This was considered a test of the genuineness of commitment to work and capability of contributing effectively to the economy. Qualification if the threshold was not reached was dependent on an assessment of other factors, set out in guidance, including the duration and regularity of their work and the number of hours of work.143

Prior to the introduction of UC, EEA jobseekers144 in receipt of IBJSA had HB eligibility by virtue of being automatically classed as having a right to reside.145 In April 2014, however, this route was ended for EEA migrant jobseekers and their family members146 in a move with explicit expenditure saving and migration (“without employment or imminent prospect of work”) deterrence objectives.147 Only 3,000 people were expected to be affected,148 since those already enjoying IBJSA and HB entitlement were protected. Nonetheless, the Department for Work and Pensions (DWP) acknowledged the risk of hardship without HB qualification149 and, moreover, seemed to accept that mobility of labour might hindered and

139 Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) reg.6(8).140 Jobseekers who had previously held a right to reside in the UK had these 91 days reduced by the number of days of their previous right to reside: Immigration (European Economic Area) (Amendment) (No.3) Regulations 2014 (SI 2014/2761), amending the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), reg.6(9).141 C. O’Brien, Unity in Adversity: EU Citizenship, Social Justice and the Cautionary Tale of the UK (Hart, 2017), 138-144.142 The earnings threshold was aligned with the minimum earnings threshold at which liability to make class 1 National Insurance contributions applied. It was then £8,164 per annum (or £663 per month).143 See M Brough et al, National Welfare Benefits Handbook – 2016/17 (18th ed.) (London: CPAG, 2016), 1539. For analysis, see C. O’Brien, Unity in Adversity: EU Citizenship, Social Justice and the Cautionary Tale of the UK (Hart, 2017), 154-156.144 i.e. classed as jobseekers for the purposes of the Citizenship Directive and relevant UK regulations (above).145 Housing Benefit Regulations 2006, reg.10.146 Via the Housing Benefit (Habitual Residence) Amendment Regulations 2014 (SI 2014/539).147 DWP, The removal of housing benefit from EEA jobseekers. Impact Assessment (27/02/2014) Final (London: DWP, 2014), p.3.148 DWP, The removal of housing benefit from EEA jobseekers. Impact Assessment (27/02/2014) Final (London: DWP, 2014), p.4. Note the bar was not restricted to those who were recently-arrived in the UK. 149 As also highlighted by the Social Security Advisory Committee: Secretary of State for Work and Pensions The Housing Benefit (Habitual Residence) Amendment Regulations 2014 (S.I. 2014 No. 539). Report by the Social Security Advisory Committee under Section 174(1) of the Social Security Administration Act 1992 and statement by the Secretary of State for Work and Pensions in accordance with Section 174(2) of that Act (London: DWP, 2014).

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that this could impact detrimentally on the wider economy.150 The final stage in this intensive limiting of support for EEA jobseekers came with its inevitable extension to UC. From June 2015, claimants had no right to reside unless able to satisfy the same conditions as those applied to IBJSA jobseekers (above).151 This reform has not affected the other categories of EEA migrant, such as workers and retained workers. At the same time, the Government revoked a UC provision that had discriminated against EEA jobseekers in relation to the work conditionality requirements152 by requiring them to meet the full work-seeking and employment take-up conditions regardless of their personal circumstances such as disability or caring responsibilities.153

Reflections on the residence requirements

By the end of 2015, therefore, there was in place a set of restrictions facing EU/EEA migrants, particularly jobseekers, that had become progressively tighter in a bid to meet political and economic objectives that went beyond a mere desire to control welfare spending. At times there were questions regarding the compatibility of some of the restrictions on migrants’ entitlement with EU law, although the CJEU has through the decisions in Dano154 and Alimanovic155 sanctioned the restricted access to social assistance benefits of economically inactive EEA migrants with insufficient resources to have a right to reside, after the initial three months;156 and the European Commission’s discrimination complaint against the UK concerning the right to reside vis-à-vis child benefit and tax credit ultimately failed, in part because it was held justifiable to protect public finances in the way chosen.157 The reforms as a whole left EEA migrants facing greater conditionality of “circumstance” (conditions of eligibility, including the strict residence conditions) and “conduct” (demonstration of commitment to genuine work, including the minimum earnings threshold) than UK jobseekers claiming UC/IBJSA.158

The strictness of the right to reside requirements and the limitations to judicial powers of intervention have been underlined recently in Secretary of State for Work and Pensions v AC.159 The Upper Tribunal refused to overturn a decision denying a joint husband and wife

150 DWP, The removal of housing benefit from EEA jobseekers. Impact Assessment (27/02/2014) Final (London: DWP, 2014), p.4.151 Universal Credit (EEA Jobseekers) Amendment Regulations 2015 (SI 2015/546), amending reg.9 of the Universal Credit Regulations 2013 (SI 2013/376), read with the immigration (European Economic Area) Regulations 2006 (SI 2006/1003), reg.6.152 Revoking reg.92 of the Universal Credit Regulations 2013 (SI 2013/376). The revocation means that these claimants will no longer automatically be placed in the work-related activity group when unable to work due to health problems.153 C O’Brien, ‘The pillory, the precipice and the slippery slope: the profound effects of the UK’s legal reform programme targeting EU migrants’ (2015) 37(1) Journal of Social Welfare and Family Law, 37(1), pp.111-136, at 129.154 Dano v Jobcenter Leipzig (Case C-333/13)155 Jobcenter Berlin Neukölln v Alimanovic (Case C-67/14).156 For detailed analysis, see H Verschueren, ‘Preventing “Benefit Tourism” in the EU: A Narrow or a Broad Interpretation of the Possibilities Offered by the ECJ in Dano?’ 52(2) Common Market Law Rev 363-390.157 European Commission v United Kingdom of Great Britain and Northern Ireland (C-308/14).158 I Shutes, ‘Work-related conditionality and the access to social benefits of national citizens, EU and non-EU citizens’ (2016) Journal of Social Policy, 45, 691-707.159 [2017] UKUT (AAC).

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claim to UC because the wife was a Greek national who, although having lived in the UK with her British husband for over 30 years, did not have a right to reside for UC purposes.160 Being unable to come within an existing category with the right to reside, as opposed to falling within an exceptional category of cases not covered by existing EU law and thus with a claim to protection, was considered “not an omission the courts should fill”.161

Talking tough: pre-referendum proposals and the ‘settlement’ with European Council

The Conservative Party’s 2015 general election manifesto expressly promised a referendum on EU membership.162 The Prime Minister, David Cameron, and the Chancellor of the Exchequer, George Osborne, were among leading party members supporting continued EU membership, albeit on terms more favourable to the UK. The manifesto proposed that “to reduce the numbers of EU migrants coming to Britain, we will end the ability of EU jobseekers to claim any job-seeking benefits at all”,163 although it was uncertain whether a complete bar would have been consistent with EU law.164 It was also proposed to exclude EU migrants with less than four years’ residence from tax credits eligibility, a reform expected to affect 300,000 people165 but not likely to reduce migration levels given the lack of any evidence of a tax credits pull factor. Mr Cameron’s proposals to Donald Tusk, President of the European Council, in November 2015,166 also pursued a manifesto commitment to end the exporting of child benefit.167 The four year residency rule would, however, have been contrary to the EU Treaty, on discrimination grounds.

Responding to Cameron’s proposals168 the European Council accepted that Member States’ social security systems are “diversely structured and this may in itself attract workers to

160 Welfare Reform Act 2012, s.4(1)(c).161 Secretary of State for Work and Pensions v PS-B [2016] UKUT 0511 (AAC), at per UTJ Jacobs at [12].162 The Conservative Party, The Conservative Party Manifesto 2015 (London: The Conservative Party, 2015), pp 72-73.163 The Conservative Party, The Conservative Party Manifesto 2015 (London: The Conservative Party, 2015), 30.164 “[I]n view of the establishment of citizenship of the Union and the interpretation of the right to equal

treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of Article 39(2) EC a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State... It is, however, legitimate for a Member State to grant such an allowance only after it has been possible to establish a real link between the job-seeker and the labour market of that State…The existence of such a link can be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the Member State in question…It follows that nationals of the Member States seeking employment in another Member State who have established real links with the labour market of that State can rely on Article 39(2) EC in order to receive a benefit of a financial nature intended to facilitate access to the labour market.”: Vatsouras v Arbeitsgemeinschaft (ARGE) Nürnberg 900; Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg 900 (C22/08 and C23/08), [37]-[41]. However, there can be derogation from the equal treatment principle under Article 24 of Directive 2004/38 in the case of “social assistance”.

165 P. Wintour and A. Travis, ‘Cameron to tell EU: cut all tax credits to migrants’, The Guardian (online) 28 November 2014.166 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/475679/Donald_Tusk_letter.pdf (accessed 1 November 2017).167 The Conservative Party, The Conservative Party Manifesto 2015 (London: The Conservative Pary, 2015), 30.168 European Council (2016), Decision of the Heads of State or Government, meeting within the European Council, concerning a New Settlement for the United Kingdom within the European Union, appended to European Council Meeting (18 and 19 February 2016) – Conclusions, EUCO 1/16, Brussels, European Council.

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certain States”.169 Provided “unjustified direct or indirect discrimination” were avoided,170 measures would be permitted, on the basis of the public interest (for example, in protecting the sustainability of the social security system), to avoid negative consequences for states arising from benefit-led migration. The Council noted the freedom afforded by parts of the Acquis (including CJEU case law) for exception to the bar on nationality discrimination under the TFEU (Art.45). Member States were entitled to “reject claims for social assistance by EU citizens from other Member States who do not enjoy a right of residence or are entitled to reside on their territory solely because of their job-search”.171 The Council reasoned that it was legitimate for a state to ensure a reasonable and effective connection between the migrant and the host state’s labour market. The Council proposed, first, that in relation to exporting child benefits, a Member State hosting the claimant would be permitted to index the benefit rate to the conditions prevalent in the child’s state of residence – initially only for new claims, but from January 2020 for others too. Secondly, there would be “an alert and safeguard mechanism that responds to situations of inflow of workers from other Member States of an exceptional magnitude over an extended period of time…”172 The Council could authorise, for up to seven years, a restriction of non-contributory in-work benefits to “the extent necessary” and limiting support for newly arrived workers for up to four years from the commencement of employment, starting with exclusion but with entitlement gradually increased as the worker’s connection to the host State’s labour market advanced.173 The Government believed that the proposed settlement would confirm potential denial of access to IBJSA, HB or UC for EEA jobseekers.174

Cameron proclaimed that the UK was being offered a “special status” by the Council’s proposals on social security and by, inter alia, the permitted exception from the “ever-closer Union” ideal.175 Certainly it gave him a modest platform from which to articulate the case for continued membership, including the financial rationale of £700 million per annum JSA and HB benefit savings (based on the 2013/14 total).176 However, the concessions did not have the hoped for political impact. As Dinan et al say, “no informed observer could really claim that the outcome represented a major new settlement for the UK”.177 Giubboni sees the settlement as a regressive measure that if implemented would, along with CJEU rulings such as Dano and Alimanovic (above), have witnessed an “inglorious sinking of any misplaced hope of trans-national social solidarity” that resulted from the Maastrict Treaty.178 169 Ibid Section D.170 Ibid, emphasis added by author.171 Ibid, para 1(b).172 European Council (2016), Decision of the Heads of State or Government, meeting within the European Council, concerning a New Settlement for the United Kingdom within the European Union, appended to European Council Meeting (18 and 19 February 2016) – Conclusions, EUCO 1/16, Brussels, European Council, section D para 2(b).173 Ibid.174 HM Government, The Best of Both Worlds: the United Kingdom’s special status in a reformed European Union (London: HM Government, 2016), paras 2.108-2.111.175 Foreword in HM Government, The Best of Both Worlds: the United Kingdom’s special status in a reformed European Union (London: HM Government, 2016).176 HM Government, The Best of Both Worlds: the United Kingdom’s special status in a reformed European Union (London: HM Government, 2016), para 2.109.177 D Dinan, N Nugent and W E Paterson, The European Union in Crisis (London: Palgrave, 2017), 88.178 S Giubboni, ‘Free movement of persons and transnational solidarity in the European Union. A melancholic eulogy’, in S Civitarese Mattuecci and Simon Halliday (eds), Social Rights in an Age of Austerity: European Perspectives (Routledge, 2018), 273-290 at 286.

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Brexit, residence and social security

Citizens’ rights

In the UK-EU negotiations which have followed the referendum of June 2016 and the triggering of Article 50 of the Treaty of European Union in March 2017, a pivotal area has been citizens’ rights – specifically the rights of citizens from the EU27 states living or working in the UK and of UK nationals living or working in one of these states, including the many UK pensioners living in Spain or elsewhere in the EU, who face uncertainty over the future uprating of the state pension. 179 There are an estimated 3.2 million citizens of EU27 Member States living in the UK, and an estimated one million UK citizens are living in EU27 countries.180 The European Council’s directives for the UK-EU negotiations, published in May 2017, class safeguarding citizens’ rights as “the first priority”, because of the numbers directly affected and the “seriousness of the consequences of the withdrawal for them”.181 The rights identified relate to freedom of movement and residence; social security rights182 (including the exporting of benefits); workers’ rights (including family members’ access to education); and the right to self-employment. The UK Government’s Brexit White Paper183 referred to “workers’ rights”, although without a definition,184 but not social security rights specifically.

The absence of Government proposals regarding social security was rectified to some extent by the ‘Position Paper’ of June 2017.185 It proposed that after Brexit, EU citizens in the UK would have rights derived from UK law and not EU law, enforceable only in the UK courts. 186 The UK would be free to rewrite social laws without the constraints of EU law. This presented an immediate concern about the potential future diminution of these rights. EU/EEA migrants’ rights would essentially be residence-based, although there would also be reciprocal arrangements. The UK has and will continue to have reciprocal arrangements with many non-EU states (see below), and a single agreement with the EU as a whole might be considered preferable to separate arrangements with individual countries. The Government proposed that qualifying EU citizens could apply for residence rights in the UK but would have guaranteed “settled status” in the interim provided they had five years’

179 House of Commons Exiting the European Union Committee, The Government’s negotiating objectives: the rights of UK and EU citizens (Second Report of Session 2016–17) (HC 1125) (2017).180 House of Commons Exiting the European Union Committee, The Government’s negotiating objectives: the rights of UK and EU citizens (Second Report of Session 2016–17) (HC 1125) (2017), paras 10 and 11.181 European Commission, Annex to the Recommendation for a Council Decision authorising the opening of the negotiations for an agreement with the United Kingdom of Great Britain and Northern Ireland setting out the arrangements for its withdrawal from the European Union (Brussels, 3.5. 2017), para.11.182 Under Reg.883/2004.183 HM Government, The United Kingdom’s exit from and new partnership with the European Union (Cm 9417) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf (Accessed 3 November 2017).184 As noted by the House of Commons Exiting the European Union Committee, The Government’s negotiating objectives: the White Paper. Third Report of Session 2016-17 (HC 1125) para 134185 HM Government, The United Kingdom’s Exit from the European Union. Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU (Cm 9464) www.gov.uk/government/publications186 Unless, of course, an ECHR issue arises and the case is taken to the European Court of Human Rights.

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continuous residence. Family dependants joining a qualifying EU citizen in the UK before the UK’s exit would be able to apply for settled status after five years. EU citizens who moved to the UK before exit day but lacked five years of residence would have to apply for a temporary right to remain until successfully applying for residence after five years. Those with settled status would have equal welfare rights to UK citizens. Those without it would have equivalent welfare rights to EU migrants currently. Exporting of benefit that began pre-withdrawal date would be able to continue. Future EU migrants coming to the UK to work would not, therefore, be able to export child benefit. Aggregation of contributions or work or residence periods within the EU, accrued before the UK’s exit, would be able to continue. That would be important, because a retired migrant may currently be able to claim a pension in one state when contributions were made in a different state. But there would be a cut-off date, and the dependence of these rights on when residence or contributions began contrasts with the Government’s overall position in accepting a need for a post-Brexit transition period of perhaps two years.

In the Joint Report on the phase 1 negotiations between the UK and the EU negotiators in December 2017, setting out what amounts to an interim agreement, the UK Government appears to have softened its position a little on EU migrants’ rights. For example, those with a right to reside under EU law, and their family members, who reside in the UK by exit day, would have citizens’ rights under the terms of the final Withdrawal Agreement.187 Most family members would be able to enter and join an EU citizen or UK national right holder at any time after exit day on the same basis as under their existing EU right. The UK would, however, have a power to require any person claiming a right of residence protected by the agreement to make an application for formal confirmation of it, via a “transparent, smooth and streamlined” process for this purpose.188 Permanent residence would be able to be applied for on the same basis as currently and would not be lost by being absent for a period not exceeding five years.189

In relation to social security specifically, the joint report indicates that the EU co-ordination provisions190 would apply to EU27 citizens in the UK, and to UK citizens in other EU states, covered by the relevant national social security legislation.191 This would therefore mean that the current pre-Brexit position on benefit entitlement, exporting of benefit and aggregation of contributions would be maintained and it would seem that the UK would not be able to reduce entitlement below the minimum of EU law requirements (as interpreted by the CJEU). It is not, however, fully clear how far any future adjustments to the rights under EU law would be dealt with, but one assumes that the UK would have to respect them and adapt UK law accordingly. Indeed, while the report provides, in relation to rights linked to freedom of movement, for the establishment of a “mechanism… to decide jointly on the

187 This agreement will be binding on EU institutions and Member States under Article 216(2) TFEU: Negotiators of the European Union and the United Kingdom Government, On Progress During Phase 1 of Negotiations Under Article 50 TEU on the United Kingdom’s Orderly Withdrawal from the European Union, 8 December 2017 (Joint Report), para 36. See also the Joint Technical Note issued at the same time: https://ec.europa.eu/commission/publications/joint-technical-note-expressing-detailed-consensus-uk-and-eu-positions-respect-citizens-rights_en (accessed 11 December 2018).188 Joint Report, para.17.189 Joint Report, para 19.190 Regulation (EC) 883/2004 and (EC) 987/2009.191 Joint Report, para 28.

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incorporation of future amendments… in the Withdrawal Agreement”,192 it later states that citizens’ rights would be fully incorporated into UK law by a “Withdrawal Agreement and Implementation Act” which will “prevail over inconsistent or incompatible legislation” unless and until it is repealed.193 The rules of equal treatment under EU law194 are adopted for the purposes of EU citizens’ rights governing social security, social assistance, health and a range of other social and economic provisions,195 and thus implicitly the permitted exceptions. The way that the joint report seeks to deal with the contentious issue of interpreting citizens’ rights post-Brexit is discussed below.

Implications of withdrawal

Regarding social security law specifically, the main legislative tasks in preparation for Brexit would appear to involve, first, the proposed Withdrawal Agreement and Implementation Bill’s provisions incorporating the above terms on citizens’ rights and, secondly, re-writing the residence rules to remove existing EU-derived rights, particularly on freedom of movement and linked to co-ordination. Any new reciprocal arrangements either with the EU as a whole or with individual states would also need legislative confirmation. Currently the UK has 19 separate reciprocal agreements with non-EEA states, including Barbados, Israel, Montenegro, New Zealand, Turkey and the USA. However, in general they offer less favourable rights than those accorded to EEA/EU citizens. Clearly much will hinge on the arrangements that may be agreed with the EU on citizens’ rights, particularly the right to reside. Another outstanding issue is the exporting of child benefit; the EU is currently insisting that this right be preserved post-Brexit. Moreover, there is the issue of the UK’s possible continued membership of the EEA and the single market. If that happened, the existing framework of social security rights for EEA migrants, who would enjoy freedom of movement, would continue. Whatever happens, transitional arrangements will be needed, written into law.

Regardless of how matters may ensue, there is a general concern about the future shape of social rights post-Brexit. There is a more than theoretical risk that the re-writing of some laws may provide an opportunity for further reductions in entitlements, particularly if the processes for scrutiny of the new legislation lack sufficient rigour. The position in Scotland may, however, be more secure in view of the Scottish Government’s devolved powers over social security and its commitment to preserve and in fact extend social rights.196 For example, although it has no jurisdiction over the benefit cap, it would have powers under the Social Security (Scotland) Bill to top up support in individual cases.

There are also potential implications arising from the wider economic impact of withdrawal from the EU. Should Brexit ultimately have the adverse impact on the economy that many are predicting,197 food prices could rise significantly198 yet welfare spending will be a prime candidate for reduced expenditure and thus cuts. Also, there is a potential risk of shortages 192 Joint Report, para 30.193 Joint Report, para.36.194 TFEU Arts 18, 45 and 49; Directive 2004/38/EC Art.24 and Reg (EU) 492/2011.195 Joint Report, para 31.196 M Simpson, ‘Renegotiating Social Citizenship in the Age of Devolution’ (2017) 44(4) Journal of Law and Society 646-73 and his article in this issue of JSSL.

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in parts of the UK workforce due to reduced mobility of labour. In the 12 months post the referendum, migration from other EU countries to the UK fell by 19%; emigration by non-UK EU citizens increased by 30%; and 47,000 or 57% fewer EU migrants came to the UK than in the previous year to look for work.199 The Government intends to permit immigration from EU states on a controlled and strategic basis to meet industrial and other needs.200 However, if welfare benefits and tax credits do have the kind of magnetic effect that Government claims, then it is difficult for ministers to contest the idea that blocking entitlement might deter some of the migrant workers the UK economy needs.

A further concern is the loss of an important route of legal challenge to inequities and shortfalls in social security provision, via the CJEU. Also, the CJEU’s jurisprudence would have much less application. Under the overly complex – and likely to be amended201 – clause 6 of the EU (Withdrawal) Bill a domestic court would not be obliged to follow a new CJEU judgment delivered after exit day and would have discretion to take it into account “if it considers it appropriate to do so”.202 This is essentially the position agreed in the joint report of the negotiations (above), although the report simply provides for the UK courts to have “due regard” to such decisions.203 The Bill also provides that pre-exit day CJEU judgments would effectively remain binding on UK courts for the purposes of interpreting “retained” law.204 However, the courts with and exercising appellate jurisdiction would generally not be bound by “retained EU case law” (CJEU decisions and established principles pre-exit day and relevant to retained EU law) and would appear205 to be able to depart from this jurisprudence on the same basis as that permitting departure from their own previous decisions.206 Nonetheless, the joint report provides for the establishment of a mechanism, to subsist for eight years from the withdrawal date, by which UK courts and tribunals could make a reference to the CJEU for a ruling on a matter of interpretation of any of the citizens’ rights.207 Also aimed at consistency of interpretation, it also refers to a need for “regular judicial dialogue” and “exchange of case law” between the CJEU and UK courts. The UK

197 See e.g. PWC, Leaving the EU: Implications for the UK Economy (London: PWC, 2016); P Subacchi and P van den Noord, Increasingly Apart. Post-Crisis Growth Trajectories in the UK and Eurozone (London; Chatham House, 2016). S Dinghra, G Ottaviano, T Sampson and J Van Reenen, The UK Treasury Analysis of ‘The Long-Term economic impact of EU Membership and the Alternatives (London: Centre for Economic Performance, LSE: 2016); and C.P. Ries, M. Hafner, T.D. Smith, F.G. Burwell, D. Egel, E. Han, M. Stepanek and H.J. Shatz, After Brexit. Alternate Forms of Brexit and their Implications for the United Kingdom, the European Union and the United States (Santa Monica, Calf and Cambridge, UK: Rand Corpn, 2017), 43 and summary at https://www.rand.org/pubs/research_reports/RR2200.html (accessed 12 December 2017).198 P Levell, M O’Connell and K Smith, ‘How might Brexit affect food prices?’ (IFS Observations), at https://www.ifs.org.uk/publications/9562 (accessed 21 November 2017).199 Office for National Statistics, Migration Statistics Quarterly Report: November 2017 (ONS, 2017).200 See House of Lords Economic Affairs Committee, 1st Report Sessions 2017–19, Brexit and the Labour Market (HL Paper 11) (London: House of Lords, 2017), which argues that the new policy, to be enshrined in a new Immigration Bill, would need to be based on better evidence than currently grounds policy. 201 A number of amendments to clause 6 have been tabled for the Committee stage in the House of Commons.202 European Union (Withdrawal) Bill, clause 6(2).203 Joint Report, table at p.15.204 Basically, EU law incorporated into UK law by the Bill itself.205 Clause 6(5).206 E.g the 1966 Practice Direction, in the case of the UK Supreme Court.207 Joint Report, para 38.

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Government and the EU Commission would also have the right to intervene in relevant cases before the CJEU and UK courts and tribunals.208

A final point concerns the Charter of Fundamental Rights,209 which, as noted above, provides in Art.34 for a right to social security and to social assistance. The Government is not incorporating the Charter into the EU (Withdrawal) Bill, contrary to the wishes of some. The rationale is that the Charter has not provided new rights but merely reaffirms those existing under other provisions; and where Article 34 is concerned, it merely sets out principles (on protection against various contingencies and provision to alleviate poverty and social exclusion) to guide national legislators and restates entitlement to social security benefit for those with freedom of movement which is derived from other EU or national legislative provisions.210

To sum up, Brexit involves complex legal changes and transitional arrangements; greater national legislative autonomy which poses risks to protection and enhancement of social security rights; uncertainties for current and future migrants regarding social protection; social and economic impact if the UK suffers an economic downturn due to withdrawal; and reduced opportunities for UK social security law to be exposed to the influence of external judicial scrutiny, although in the case of migrants, compensated to some degree under the joint report.

Conclusion

Brexit is not primarily economically-driven even though the ‘Leave’ campaign argued that ending the UK’s contribution to the EU budget and increasing the potential for trade growth outside Europe would yield great economic benefits. Many independent economic forecasts suggest a downturn post-Brexit, at least in the short-term. The Institute for Fiscal Studies predicts a need for “at least an additional one or two years of ‘austerity’… to get the public finances back to balance”.211 Rand Corporation research indicates that Brexit is a “lose-lose game, at least in the economic realm” and predicts that “the UK will be economically worse-off outside of the EU under most plausible scenarios”.212 The economic effects of Brexit could have serious consequences for welfare rights, since “a well functioning economy” is critical to the maintenance of an effective welfare state capable of meeting its core objectives.213 It could therefore exacerbate the deleterious position that has resulted from a decade of austerity-driven welfare measures which have engendered significant hardship for many. Another economic issue post-Brexit will be the UK’s continuing need to import labour across a range of occupational fields. Social security and tax credits will still have a

208 Joint Report, para 39.209 Charter of Fundamental Rights of the European Union (2000/C 364/01).210 Department for Exiting the European Union, Charter of Fundamental Rights of the EU Right by Right Analysis (December 5, 2017).211 C Emmerson, P Johnson, I Mitchell and D Phillips, Brexit and the UK’s Public Finances (IFS Report 116) (London: IFS, 2016), 6.212 C.P. Ries, M. Hafner, T.D. Smith, F.G. Burwell, D. Egel, E. han, M. Stepanek and H.J. Shatz, After Brexit. Alternate Forms of Brexit and their Implications for the United Kingdom, the European Union and the United States (Santa Monica, Calf and Cambridge, UK: Rand Corpn, 2017), 43 and summary at https://www.rand.org/pubs/research_reports/RR2200.html (accessed 12 December 2017).213 Schoukens op cit, 45.

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real potential relevance to migrant workers and their families, including those eligible for child benefit with children living in their home state.

The UK’s policy and legislative responses to EU migration in the form of progressive reductions in benefit entitlement formed an important part of the background to the EU referendum. Yet there are also growing political, and to a lesser extent economic, influences on the policy response to migration in other Member States.214 Pressure to accommodate the nationalistic leanings of substantial numbers of Member State populations and their negative perceptions of migration has increased; “many perceive that migrant workers are looking to exploit the welfare system of a state” and that “freedom of movement will… undermine the welfare state”.215 Moreover, it has been argued that recent rulings of the CJEU, such as Dano216 and Alimanovic,217 noted above, confirming the limitations that individual states may place on the social assistance for economically inactive EU migrants,218 have to some extent been in tune with these anti-migrant sentiments and are inimical to the intended solidaristic and inclusive notion of EU citizenship.219

Under austerity, the retrenchment of welfare has not been a matter of complete economic necessity – particularly when one sees the protection afforded to some pensioner benefits. Political choices have been made and, as in the case of Brexit, policy development has partly been responsive to populism but also reflects an ideological position, whether neoliberal in the case of austerity or Eurosceptic and nationalistic in the case of Brexit. Whatever the underlying rationale and motivation, however, both the pursuit of austerity policies and the forthcoming withdrawal of the UK from the EU are problematic for welfare rights in the UK. There are largely negative implications which, in the light of the relatively weak legal safeguards for the protection of social rights, action via the courts is mostly incapable of remedying – although it is perhaps important to recognise, as the DA case above illustrates, its “potential for making a contribution to the humanisation of welfare reform”.220

Spicker comments that while ideology may to some extent drive state responses to poverty, the “economic context, and political interpretations of it, limit what is considered feasible or desirable”.221 The austerity based welfare reforms of the past decade, while exemplifying the interplay of economic and ideological forces, have however shown how economic influences can become even more dominant within a particular political context.222 Politics, 214 Schoukens, op cit, 43.215 J Paju, The European Union and Social Security Law (Portland Oregon: Hart, 2017), 193.216 Dano v Jobcenter Leipzig (Case C-333/13)217 Jobcenter Berlin Neukölln v Alimanovic (Case C-67/14).218 See also the UK Supreme Court decision in Mirga v Secretary of State for Work and Pensions; Samin v Westminister City Council [2016] UKSC 1.219 M Cousins, ‘“The Baseless fabric of this Vision”: EU Citizenship, The Right to Reside and EU Law’ (2016) JSSL, 23, 2 89-105 at 104-105; and J Paju, The European Union and Social Security Law (Portland Oregon: Hart, 2017), 190.220 J King, ‘Social rights and welfare reform in times of economic crisis’, in S Civitarese Mattuecci and Simon Halliday (eds), Social Rights in an Age of Austerity: European Perspectives (Routledge, 2018), 214-238 at 231.221 P Spicker, Poverty and Social Security. Concepts and principles (London; Routledge, 1993), 167. 222 The effect may be most pronounced at times of economic crisis, although the response tends to involve adjustments to the level and scope of a policy (i.e. provision), such as the new caps or limits applied under UK welfare reforms, rather than ‘a profound transformation of the welfare state’: Y Steinebach, C Knill and J Jordana, ‘Austerity or welfare state transformation Examining the impact of economic crises on social regulation in Europe’, Regulation & Governance (2017) (online) 1-20, 1.

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influenced by ideological predispositions, are to the fore in relation to Brexit, but it seems likely that the economic context will have a major influence on social rights in the years after the UK has left the EU.

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