by GABRIELLA – Leeds Solidarity Network
From the 10th of November 2014 European Union migrants who have arrived in the UK as jobseekers will only be able to claim «Job Seeker Allowance» (a type of benefit for those out of work) for only 3 months. After that they will have to undergo a «genuine prospect of work» interview and provide evidence of their «employability». This is just the latest of a series of measures introduced by the British «Con-Dem» Government over the past 12 months that restricts access to benefits for migrants from the 30 countries members of the European Economic Area (EEA) (including the EU 27 plus Iceland, Liechtenstein and Norway.
Access to the UK welfare system for migrants has never been easy. Already in January 2014 it was established that all EU jobseekers have to wait 3 months before they could apply for «out of work» benefits. Facilitating this decision was the British Government’s amendment to the Immigration Regulations 2006 (SI 2006/1003) limiting to an «absolute limit of six months the retention of worker status for an EEA national who is a retained worker and who had worked for less than 12 months before becoming involuntarily unemployed». With the new regulation introduced in November the 6 months statutory presumption to obtain jobseekers allowance have been reduced to 91 days. The new ruling means that after 91 days of claiming income-based JSA, if EEA migrants do not prove to have an imminent job offer they could lose their benefits and their right to reside in the UK as a jobseeker.
To what extent is the principle of free movement for migrants looking for a job in the EU-allegedly a core principle of the Union, put to question under these stricter welfare regulations at the national level? The EU law already allows member states to introduce barriers to social benefits for «non-active» migrants- this is according to the European Parliament and Council Directive 2004/38/EC, which establishes that the right of residence and access to social security for «non-active» EU citizens other than jobseekers for more than 3 months but less than 5 years is subject to the conditions of «having sufficient resources and comprehensive sickness and insurance cover». While the EU emphasis is on «non-active» migrants, the UK seems to be ahead of the game with its attempt at establishing conditionalities also for jobseekers. The twist in the categories from worker to jobseeker achieved by the amendment to the Immigration Regulations 2006 to re-define benefit entitlements is crucial in this regard. As blatantly put by the UK Government on its website this is a way to circumvent the fact that «Being defined as a «worker» under EU law allows people more generous access to in and out-of-work benefits such as Jobseeker’s Allowance (JSA), Housing Benefit, Child Benefit and Child Tax Credit».
Testing and governing: the forced wage
The response of the government is that, beside the 3 months proof of residence to claim any benefit, migrants have now to satisfy a stricter «Habitual Residence Test» before they are entitled to claim income-based Job Seeker Allowance and, since 1st of July, to obtain Child Tax Credit and Child Benefit. The «Habitual Residence Test» includes the acquisition of the «right to reside» whereby migrants have to prove that they have came to the UK looking for work. On top of that they will still have to show that an intension to settle in the UK and «make it their home for the time being». Under such «improved» Habitual Residence Test EEA migrants are expected to provide more detailed answers and submit more evidence to individually tailored questions from the job centres staff conducting the interviews. These are now able to draw from a bank of more than 200 questions, which may include the efforts made by migrants to find work before coming to the UK and their level of English language skills. It is self-evident how hostile and discriminatory these types of practices are for a migrant who has just arrived in the country and is trying to make a living. Underpinning this pervasive attack on migrants rights to claim benefits is the assumptions that people are here to abuse the system, and that as a consequence they have to demonstrate having a real job opportunity or «genuinely» looking for one.
Yet, it is not only the unemployed that are going to be subject to increasing monitoring and disciplining in the UK. The debate has gone beyond the demonization of the citizen/migrant on benefit draining the resources of the national welfare state. The fierce competition on whom will produce the most popular anti-immigration discourse and propose the harsher measures against migrants during these tense pre-election times is eroding citizenship rights also for those migrants who managed to obtain the status of workers. In March 2014 the government decided that a minimum earnings threshold will be introduced to further ensure that benefits will only go to those who are «genuinely working». More specifically migrants will have to show that for the last 3 months they have been earning at the level at which employees start paying National Insurance. This threshold corresponds roughly to £150 a week (the equivalent to working 24 hours a week at National Minimum Wage), and is far from easy to achieve especially for those employed under the increasingly popular «zero hours contracts», largely used in those sectors where migrants end up finding employment.
The instrumentalisation of immigration and the discourse against migrants’ abuses becomes particularly strategic for the different parties in the run up to the national elections. As emerged elsewhere in The government of mobility #1, the rhetoric of «welfare tourism» has become the catalyst of anti-immigrant rhetoric in the «wealthier» EU countries, including the UK, attracting migrants from Southern and the Eastern European migrants escaping the crisis. The key tenet of the welfare tourism argument, that migrants move mainly for the financial incentives offered by the welfare system in the country of immigration, has been disproved by a wide range of studies, including those more recently commissioned by the EU institutions to respond to the claims of MSs about the alleged migrants’ abuse to their social security systems. Research across different EU countries has shown that the extent to which «non-active» intra-EU migrants take advantage of non-contributory benefits or are eligible to access healthcare is small. Migrants account for a tiny percentage (between 1 and 5%) of benefit claimants, often because they are in employment and are less likely to receive disability and unemployment benefits (in 2013 activity rates was 77.7% on average for «mobile citizens as compared to 72% for nationals see European Commission MEMO, 2014 Labour Mobility within the EU).
Yet, as we have seen, the UK government is preoccupied to erect new barriers also for migrants in work. According to Cameron’s recent speech on migration (December 2014) child benefits represent an example of in-work benefits that appear to be much more attractive to migrants as compared to other wealthy states in the EU. His conclusion was that «in the future those who want to claim tax credits and child benefits must live here and contribute to our country for a minimum of four years». This latest statement defines the contours of a «citizenship on probation» (link to Government of mobility 1) or a temporally «deferred» social citizenship for migrants who are essentially being told: you come only if you are available to be exploited; you will have to demonstrate to be integrated in the labour market yet renouncing any form of social citizenship for at least the first four years. The Labour Party has been slightly more magnanimous and suggested only 2 years of residence for EEA migrants as a conditionality to access benefits…
Beside the basic common sense that people under economic restraints tend to move mainly to get decent jobs rather than to live on a meagre unemployment allowance or supplementary in-work benefits, the very attraction of a country such as the UK as compared to others on the basis of its welfare system alone can be called into question. The idea that the British in-work benefit system creates more incentive for migrants as compared to other «magnet countries» such as France or Germany is flawed as showed by recent studies that illustrate how in-work benefits in the UK do not bring people’s income up as compared to these other countries. In other words while the value of these benefits is higher in absolute terms (representing between the 60 and 77% of the wage), they need to be related to the actual economic incentive to move to the UK, that is, how much people can expect to receive in terms of wages for work, which is lower in comparative terms. The UK minimum wage is lower than the French, Dutch, Belgian, Irish and German. One has also to bear in mind that comparison are only meaningful if you compare income after tax and benefits and housing costs: even under-estimating housing costs, the UK income remains at the lower end of the scale after taxes and benefits.
Overall the UK appears to spend much less in real terms on social security as compared to other countries and, as reminded by pro-welfare rights campaigners: «the value UK benefits has been declining in real terms for the last 30 years, and now stands at less than half the level that is needed to maintain a minimum, socially acceptable quality of life». Indeed the current discourse on welfare tourism and migration as a burden on national social security, is rather to be understood as a smokescreen to distract people away from the massive cuts in public spending: £80 billion cut from public sector established with the Spending Review of 2010, of which 18 billion cut in welfare services, and 2.6 billion taken away from local authorities budget. So, in order to «defend» the cuts, the government needs to create a scapegoat. This is reflected in the figure of the benefit «scrounger», being her/him the lazy citizen claimant or even worse a migrant.
Universal credit, but not for everyone
The rhetoric against migrant claimants has focused especially on the alleged abuse of non-contributory cash benefits, that is, those benefits available also for those who have not paid social security contributions. Income-based job seekers allowance and income support for disability and invalidity benefits some examples of these forms of non-contributory benefits. The different benefit types will be swept away with the all-encompassing system of Universal Credit, to which most British benefit claimants will transferred by the end of 2018/20. This replaces a range of existing means-tested benefits and tax credits for people of working age. Yet, as repeatedly announced in the last few months by the secretary of Work and Pension EEA jobseekers will not be able to claim it. Similarly to the described shifts in the use of «worker», «jobseeker» and «inactive» categories, the government argues that restricting access to Universal Credit will not breach EU rules since this is not a benefit primarily designed to facilitate access to the labour market.
Thanks to the ambivalent nature of this form of welfare benefit, which has no precedent under EU law, the UK is confident of its future ability to limit access to out-of-work benefits without interfering with the free movement of labour principle of the EU. The Minister is confident that, as far as it is considered a form of «social assistance» it will be possible to exclude non-citizens from enjoying it. Indeed, these mechanisms of exclusion are already embedded in EU regulation, according to which Member States are not obliged to pay social assistance to migrants who are looking for work. While there are still margins to challenge national legislation preventing EU jobseekers from claiming Universal Credit, it is hard to deny that social rights for «free movers» in the EU remain quite fragile under EU law. Under pressure of growing anti-immigration discourse and economic restraints across Europe, the principle of freedom of movement is becoming increasingly precarious and made conditional on individuals’ capacity to work or to be financially self-sufficient.