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Social Rights 3

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Kristian Humble

on 4 February 2015

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Transcript of Social Rights 3

Social Rights
Right to Remain

Entry and Residence
Exit
Jobseeker
Rights

Losing Your Job
2004/38 Article 1

(a)the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union Citizens and their family members;
(b)the right of permanent residence in the territory of the Member States for Union Citizens and their family members;
(c)the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health
Article 4 - Exit

Without prejudice to the provisions on travel documents applicable to national border controls, all Union Citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport, shall have the right to leave the territory of a Member State to travel to another Member State …..
Right of Residence for more than Three Months

Article 7
All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:-
(a)are workers or self-employed persons in the host Member State; or
(b)have sufficient resources for themselves and their families…. Or
(c)are enrolled at a private or public establishment…… for the principle purpose of following a course of study, including vocational training….or
(d)are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c)
Article 6 - First Three Months

Union Citizens shall have a right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.
Right of Residence 1

The right to enter and to work is the right to remain for a reasonable time while looking for a job. Art 45 (3) of the TFEU Treaty provides for this right.

But it refers to the right of free movement only to ‘accept offers of employment actually made’ – Art 45 (3)(a) TFEU.

The court has interpreted this provision expansively (Antonissen 1991)
Right of Residence 2

Article 45 had to be interpreted as giving a non-exhaustive list of rights for nationals of Member States in the context of free movement including the right to move and stay within the territory of the MS for the purposes of seeking employment

Directive 2004/38 lays down detailed provisions for free movement - however some rules to residency are to be decided by the national state BUT they cannot be seen to be impeding free movement
Antonissen 1991

Why and for how long will someone be considered to be a jobseeker? In Antonissen the court said that it was not contrary to Community law to require an individual to leave a Member State’s territory if he had not found work for six months, unless he could show that he was continuing to seek work and had a genuine chance of finding it

The six month limit which applied to UK jobseekers was acceptable but the court refused to state a clear time limit.
Antonissen 2

The time granted must be reasonable. But it was now possible that a further extension was acceptable if evidence of a genuine employement after six month period could be shown.

R v Secretary of State for the Home Department ex p Vittorio Vitale 1996
Updated Position on Residence 2

Article 7 of Directive 2004/38 now lays down the conditions for a right of residence for more than three months (up to 3 months Art 6) for primary movers and family members. If they are not workers or self-employed they must have sufficient resources not to become a burden on the financial system of the host state and must have comprehensive health insurance.

This includes students (Art 7(1)(b). The status may be retained in case of sickness, involuntary unemployment or taking up vocational training connected with the previous employment.
Equal treatment for Job Seekers

ECJ interpreted Regulation 1408/71 (now 883/2004) that a Member State could require Union citizens to complete a certain period of work within the host Member State before allowing them to claim unemployment benefit./heath care

Therefore access to social advantages is conditional upon the acquisition of EU worker status. A person who has never worked in the host Member State will not be eligible.
Equal treatment for Job Seekers 2

Directive 2004/38 (Art 14(1)) provides that EU citizens and their family members shall have the right to residence under Art 6 ‘as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

But with regard to rights to social advantage (unemployment or sickness) Art 24 (2) provides that for the first three months of residence or while the EU citizen is exercising his right to reside while seeking work under Art 14 (4) (b) the host Member State is not obliged to grant entitlement to social assistance to persons other than employed or self-employed workers and the members of their family.
Equal Treatment When You Lose You Job

1.Unintentionally
A person retains EU worker status as long as he continues in employment. However, that status is not automatically lost when a person ceases to work. EC treaty is vague on this. 2004/38 makes it clearer!
Equal Treatment 3

2.Voluntarily
The concept of voluntary unemployment has had little attention from the Court of Justice except in the context of the availability of ‘social advantages’. Art 7(2) e (3) 2004/38

You are not voluntarily unemployed solely because your contract of employment fixed from the beginning has expired. Ninni-Orashe 2002

Someone leaving his employment to become a student on a vocational course may still retain status of a worker.
Brown v Secretary of State for Scotland 1988.
Cases
Limitation to free movement will only be on the grounds of public policy, public security and public health (more later!)
Antonissen 1991
ECJ clarified how long the temporary status entitles a person to remain to look for work which is generally 6 months but is a guideline only and is up to the national courts to decide.
Collins 2004
Work seekers must have a sufficiently close connection with the state to remain (and in this case to claim benefits)
Monique Chateignier 2006
Nationality issues and subsequent unemployment benefits withdrawn on basis she had not been employed. The applicant then completed a day of work and reapplied for unemployment benefits
which were granted. ECJ noted that even though member states may require a period of work before benefits are claimed, there was no such requirement in Belgian legislation.
Hoekstra 1963
Established that certain rights were retained (benefits derived from worker status) for a period of time if the person lost their job.
However, after the expiry of a reasonable period, depending on the circumstances, persons seeking work may no longer be afforded the status and benefits of worker under Union law and may lawfully be deported by the member state (UK limit is 6 months)
Equal Treatment 2

Article 7(3)
Makes it clear that workers and also the self-employed may retain thier status and right to remain in the following circumstances:
(a) he/she is temporarily unable to work as a result of an illness or accident
(b) he/she is duly recorded involuntary unemployed after having been employed for more than one year and has registered as a job seeker
(c) he/she is duly recorded involuntary unemployed after completing a fixed-term contract of less than one year or involuntary unemployed during first twelve months. In this case the status will only be retained for six months.
(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of the woker shall require the training to be related to the previous employment.
The rights to enter, move freely seek and take up employment are governed by a combination of Article 45(3) and Directive 2004/38 Articles 1-14
Directive 2004/38 provides the rules to regulate the conditions by which workers can leave one member state and enter the territory of another
Ninni-Orasche 2002
Not seen to be voluntarily unemployed solely because her contract of employment, fixed from the outset had expired
Raulin 1989
ECJ held that the sixty hours work had enabled Raulin to claim worker status. However, a migrant worker who then left that employment to begin a course of full time study unconnected with the previous occupational activities did not retain the status as a worker.
Entry and Residence
Job Seekers Rights
What Happens When You Lose Your Job
Full transcript