Welfare Benefits (EU Citizens)

Mark Hoban Excerpts

Wednesday 5th June 2013 Westminster Hall

[The Minister of State, Department for Work and Pensions (Mr Mark Hoban)]

I congratulate my hon. Friend the Member for Christchurch (Mr Chope) on securing the debate and trying to highlight some of the challenging issues we have to deal with. The Government are rightly concerned that our rules on migrants’ access to benefits should be robust. We already have strong rules to protect the taxpayer and the public purse from abuse and fraud. Those rules are fair and just, and I think they are entirely consistent with the freedom of EU citizens to work and to look for work here—I will come back to the issue of those who come here with no intention of working and the controls that are in place in that regard. The rules rightly ensure that migrants cannot get benefits if they have never worked here and have no intention of doing so.

Let me set out a bit of the background to assist my hon. Friend. European law says that an EU citizen can move to another member state if they are a worker, self-employed or a student, if they are seeking work or if they are self-sufficient. When EU nationals come to work in the hotels and guest houses of Bournemouth and Christchurch, it is that right that they are exercising, in the same way that UK nationals exercise their right when they go and work in other European Union countries.

European law also says that we must treat EU nationals who come here to work in the same way as we treat British nationals. We comply with that principle. EU nationals who work here and then lose their job can claim jobseeker’s allowance and housing benefit and, if they are temporarily unwell and unable to work, they can claim employment and support allowance.

EU nationals who come here to seek work are expected under EU law to be actively seeking work and to have a genuine chance of getting a job, and if they do, we say that they can claim jobseeker’s allowance. When people try to claim JSA, we apply a fair test to assess whether they are genuinely here to seek work—the habitual residence test. That test is applied to jobseekers whether they are EU nationals or UK nationals.

My hon. Friend is absolutely right that no member state can afford to support migrants who have no intention of working and contributing economically to the community in which they choose to live. There is no requirement under EU law to provide such support, nor should there be. EU law has not sought to harmonise benefit regimes, nor should it. As he rightly points out, those are matters for national Governments. Member states have their own benefit regimes, some of which are more or less generous to their citizens than ours. It is easy to see why some people feel that they can move, not to work, but to take advantage of what they think is more generous welfare support in another country.

EU law sets out rules for co-ordination between member states to ensure that people who are genuinely exercising their free movement rights are not disadvantaged. There is no free movement right for those who are economically inactive and have no intention of working but want to be supported by state funds. We cannot be expected to support those who move just to take advantage of different benefit regimes, and the public are rightly concerned that that is what would happen if we were not allowed to check the legal basis for someone’s residence in this country, which is the basis of the infraction proceedings against us.

[Mr Chope]

My hon. Friend the Minister uses the expression “no intention of working”, but all they need to do is show that they are applying for jobs and that they hope to be able to work. It is very hard to prove that they are not intending to work, particularly when his Department does not even have the information on whether they are British nationals.

[Mr Hoban]

I just say to my hon. Friend that when someone seeks to claim jobseeker’s allowance, they go through vigorous tests to identify whether they are looking for work. The only basis on which people receive benefit is by demonstrating that they are looking for work, which is why we have the habitual residence test. It tests not whether someone has popped across on holiday and decided to sign on while they are here, but whether they have any real intention to be here and work. That is why we ask a range of questions and why we are trying to strengthen the test, which I shall come on to in a moment. It was one of the commitments the Prime Minister made. I want to say more about the habitual residence test and the infraction process.

The Commission says that we discriminate against EU citizens when we apply the habitual residence test. We believe that we are following EU law correctly when we apply those rules. Rules in the residence directive explicitly allow us to protect our national finances and prevent migrants from becoming an unreasonable burden on our welfare system. When we ask people to satisfy the habitual residence test, we do so not on the basis of their nationality but on the basis that they have moved to the UK from abroad, even if they have previously lived here. We do so to protect our system from abuse. Why would a member state not want to protect its benefit system from abuse by checking that someone is legally resident before they make a claim? The advocate-general of the European Court, in giving his opinion on an Austrian case called Brey, said that

“the Court has held in various circumstances that Member States may require lawful residence before granting social assistance benefits, providing that such a requirement complies with EU law.”

That is exactly what we do when we assess someone’s right to reside as part of our habitual residence test. We treat each case on its own merits and consider the individual circumstances of the claimant. Our test is fair; it legitimately requires that a benefit claimant has a reasonable right of residence here and a degree of interconnection with and integration into UK society.

This is not the first time that someone has sought to challenge the habitual residence test. We have already successfully defended challenges to our test in our Supreme Court and the domestic courts. They found that the habitual residence test does not discriminate on the grounds of nationality and that its use is justified because it protects the public finances of the UK and prevents benefit claims by people who have no intention of working here at all. My concern and that of the Government, and the reason why we are fighting the case, is that if the Commission is successful in arguing its interpretation of the rules, it will open a new door that will mean that member states can no longer check that migrants meet national residence laws, thus extending free movement to inactive migrants who believe they can move to any member state and get social assistance benefits soon after arriving. That cannot be right, which is why the Government, the Secretary of State and I are determined to defend the test. We believe that we have strong grounds to win the argument in the Court.

My hon. Friend mentioned the measures that the Prime Minister announced to strengthen our position. I shall highlight two announcements, the first of which was on time-limited access to benefits. Under EU law, someone has a right to reside as a worker or a jobseeker only if they are “continuing to seek employment” and have a

“genuine chance of being engaged”.

It is not unreasonable to take the view that if someone has not found a job within six months, that right should terminate. At the moment, we expect that most jobseekers will find a job within six months. The Home Office will amend the regulations to create a statutory presumption that EEA nationals who are coming to look for work in the UK or who have lost their job will no longer be exercising their free movement right of residence as a jobseeker after six months, unless, in line with EU law, they demonstrate that they are actively seeking work and have a genuine chance of getting a job. Most jobseekers will find work quite quickly—within six months. It is hard to demonstrate after six months that they have a genuine chance of getting a job.

The other announcement was on strengthening the habitual residence test. We will continue our work to ensure that our decision making when assessing whether someone satisfies the test is consistent and fair. We are improving the test, as the Prime Minister said, by increasing the range and depth of evidence that advisers collect from claimants and making it easier for advisers to tailor the questions to someone’s circumstances. Those improvements will support our argument that our test is robust and that our decisions are fair and comply with EU law.

My hon. Friend asked about language skills and the assessment of the genuine chance of finding a job. We will assess whether language skills are a barrier to work, as part of the habitual residence test—it is built into the test. He also commented on the fact that we are in discussions with our European neighbours. My right hon. Friend the Secretary of State for Work and Pensions has been in Germany to meet his opposite number, the Deputy Interior Minister. The Home Secretary will raise these issues with other Interior Ministers at the Justice and Home Affairs Council over the next week. I am going to the Netherlands this evening to talk to my opposite number about how we can work together more closely. There are clear concerns in a number of member states that the Commission is seeking to extend its influence in this area and subvert the right of free movement, which is widely supported in member states. We need to continue to work with our allies, demonstrate a need for change and recognise the concerns expressed across a wide number of member states about the Commission’s role.

My hon. Friend started his speech by talking about the broader issues of access. I am sure that he will welcome the immigration Bill announced in the Queen’s Speech, which will tighten access to the NHS and controls on private landlords letting property to tenants from overseas. The Government are taking steps to tighten access to not only welfare benefits but other public services, which is an important part of our approach.

[Mr Chope]

Does my hon. Friend not agree that it would be much better if we could do all that under our own control? If we were outside the European Union, we would be able to make such decisions ourselves, instead of being beholden to the European Commission, which, from the way he has described the infraction proceedings, is wholly intransigent. I sympathise with him. For all the effort he is making, he is banging his head against a brick wall; there is no give on the part of the European Commission. Does there not come a time when the British people have to say, “Enough’s enough. If you do not concede anything, we will leave”?

[Mr Hoban]

My hon. Friend is being uncharacteristically defeatist. We can make progress, which is why we are engaging with other member states. The support among other member states—we were party to the Brey case—demonstrates to the Commission how much concern there is. Member states can take the initiative to change the regulations, and we need to demonstrate to the Commission that there is support for that. I fully support the Prime Minster’s policy. We need to have the renegotiation and put the outcome of that renegotiation to the people in a referendum when we win the next general election. That is the right approach. We need to build alliances with other member states; we are not alone in our concerns. My hon. Friend will be relieved to know that other member states share his concerns exactly.

I hope that from my remarks this afternoon my hon. Friend sees that the Government are actively taking steps to protect our position not only in domestic law, by strengthening the habitual residence test through the new rules and the presumption about someone being out of work for six months, but by defending the matter strongly in the Court and building alliances with other EU countries. Our approach is right.

[Mr Chope]

If it does not give in, will we leave the European Union?