Member state can exclude jobseeking Union Citizens from certain non-contributory benefits

On a related note I came across this letter from Employment Minister Priti Patel today which refers to amendments being made to Directive 883/2004 and includes the slightly ominous statement:

“We understand that the Commission is considering changes to the way that mobile workers access unemployment benefits across member states and the export of family benefits… the govt welcomes proposals to reform the social security co-ordination rules and will continue to consider further ways to make changes to the rules that would provide a fairer balance of responsibilities”

The Commission has apparently published a public consultation about the changes (although I can’t find it anywhere).

Here’s the European Commission’s consultation on social security co-ordination -

http://ec.europa.eu/social/main.jsp?catId=333&langId=en&consultId=16&visib=0&furtherConsult=yes

This seems to confirm the view if an EEA has worked more than 12 months they are a worker with retained status beyond the 6 months currently used for this group in the GPOW and so can still receive JSA.  (As stated in KPOW THE GPOW)

‘3.    For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(a)    he/she is temporarily unable to work as the result of an illness or accident;

(b)    he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

(c)    he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first 12 months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than 6 months;

(d)    he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.’  ‘

Analysis of the judgment from Matt Evans from the Aire Centre:

http://thejusticegap.com/2015/09/eu-member-states-can-deny-benefits-to-jobless-migrants-court-rules/

And a view from nearly legal - http://nearlylegal.co.uk/2015/09/right-to-reside-carry-on-as-before/

Its maybe worth being quite clear that as JSA definitely is a benefit of a financial nature intended to facilitate access to the labour market (see Collins) then the Alimanovic judgment does not have any purchase on that.

Summary of Collins here - http://www.rightsnet.org.uk/welfare-rights/caselaw/item/collins-v-secretary-of-state-for-work-pensions

and decision here - http://www.osscsc.gov.uk/aspx/view.aspx?id=1754

Woops- sorry, I meant the ECJ decision rather than the subsequent Court of Appeal follow up:  Case C-138/02 Collins: http://curia.europa.eu/juris/document/document.jsf?text=&docid=49010&pageIndex=0&doclang=en&mode=lst&dir;=&occ=first&part=1&cid=18038

The case was about whether Mr Collins could get JSA.

See in particular the following parts of the judgment:

58. As regards the question whether the right to equal treatment enjoyed by nationals of a Member State seeking employment in another Member State also encompasses benefits of a financial nature such as the benefit at issue in the main proceedings, the Court has held that Member State nationals who move in search of employment qualify for equal treatment only as regards access to employment in accordance with Article 48 of the Treaty and Articles 2 and 5 of Regulation No 1612/68, but not with regard to social and tax advantages within the meaning of Article 7(2) of that regulation (Lebon, paragraph 26, and Case C-278/94 Commission v Belgium, cited above, paragraphs 39 and 40).

[....]

63. In view of the establishment of citizenship of the Union and the interpretation in the case-law of the right to equal treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of Article 48(2) of the Treaty – which expresses the fundamental principle of equal treatment, guaranteed by Article 6 of the Treaty – a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State.

The difference with Alimanovic is that the Court in that case decided that the German Arbeitslosengeld II (a means tested unemployment benefit) was not a “benefit of a financial nature intended to faciliatate access to employment”. That is perhaps somewhat surprising but the design of the ALG II is different- for a start it expresses its principal purpose to be maintaining dignity of the claimant- as we all know getting JSA has little to do with maintaining human dignity….

So the lesson from this new case for JSA is: it has no application (other than as pointed out above it does rather seem that after working less than a year and then retaining status due to illness for 6 months a person can carry on having a right of residence as a jobseeker- contrary to what the I(EEA) Regs suggest).

Thanks for clarifying Martin :)