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EU citizens left homeless in the UK as a consequence of the 'hostile environment' policy

Question écrite de Mme Sophia IN 'T VELD - Commission européenne

Question de Mme Sophia IN 'T VELD, Mme Luisa PORRITT,

Diffusée le 26 août 2019

Subject: EU citizens left homeless in the UK as a consequence of the 'hostile environment' policy

The Guardian reports that EU citizens are being turned down for universal credit, despite the fact that they are residing legally in the UK. EU citizens cannot always prove that they are habitually resident, as EU citizens exercising their right to freedom of movement were not required to keep certain records. Even the Department for Work and Pensions does not seem to keep all records – or in any case does not actively search for them. The negative decisions cut benefits off abruptly, leaving people destitute and homeless. Although negative decisions can be appealed and are overturned in over 90 % of cases, great harm is done in the meantime. According to some, this is a consequence of the UK’s policy of creating a ‘hostile environment’ for non-UK citizens.

1. Will the Commission raise the difficulties that EU citizens are facing under the UK’s universal credit scheme with the UK Government as a matter of urgency?

2. Does it agree that although EU citizens are not specifically targeted by this policy, they are disproportionately affected – which would constitute indirect discrimination on the basis of nationality, something prohibited by EU law?

3. What can it do and will it do to support those EU citizens affected, including through possible legal proceedings under EU law, in the event of the UK withdrawing from the EU?

Réponse - Commission européenne

Diffusée le 30 janvier 2020

Answer given by Mr Schmit on behalf of the European Commission

(31 January 2020)

EC law does not harmonise social security or social assistance benefits and each Member State is free to establish conditions governing access to such benefits. EC law does, however, lay down rules for the coordination of social security systems, which oblige Member States to respect the principle of equal treatment (1).

Member States may make access to benefits by economically inactive Union citizens subject to lawful residenc e (2). Pursuant to Directive 2004/38/EC (3), such mobile Union citizens, where they have not yet obtained permanent residence status, must be able to demonstrate possession of sufficient resources and comprehensive sickness insurance.

The Commission understands that Universal Credit replaces and combines six previously separate social security, special non- contributory and social assistance benefits into one benefit.

It is a general principle of law that an applicant for a right has to prove that he meets the conditions to benefit from this right. Therefore, when EU citizens in the UK are moved from one of the previous benefits to Universal Credit, there is nothing in EC law that precludes a Member State from requiring applicants and recipients of social benefits to provide proof that they meet the conditions or that they continue to meet the conditions, in order to be entitled to the benefit. Of course, Member States may not impose evidentiary requirements that make it excessively difficult for mobile Union citizens to demonstrate compliance with the conditions for lawful residence laid down in Directive 2004/38/EC.

If, upon the UK’s withdrawal from the European Union, the Withdrawal Agreement enters into force, EC law will continue to apply to and in the United Kingdom during the transition period provided for in that Agreement. After the end of the transition period, EU citizens residing in the UK at that moment and falling under the personal scope of that Agreement will broadly benefit from the same rights as they enjoy now.

Moreover, under Art. 87 of the Withdrawal agreement, the Commission may, within 4 years after the end of the transition period, bring infringement action against the United Kingdom for violation of Union law. In case of a no-deal withdrawal, EC law will no longer apply to and in the United Kingdom as from the date of withdrawal.

1∙ Regulation EC 883/2004 on the coordination of social security schemes (OJ L 166, 30.4.2004, p. 1).

2∙ Commission v. UK, C-308/14

3∙ Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States

(OJ L 158, 30.4.2004, p. 77).

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