Migrant Workers, Union Citizens and Social Assistance: From Rules to Reality

Abstract

The access of migrant workers and Union citizens to public financial support in their host state is politically sensitive. EU rules and Court of Justice decisions are often portrayed as allowing migrants to live parasitically, and threatening to undermine national welfare state institutions. Occasional judgments in which the Court takes a more restrictive approach are portrayed as showing its reluctant sensitivity to national concerns. Yet a more nuanced and empirical look at how Member States actually respond both to judgments of the Court, and to individual migrants who apply for public support, shows that the nexus between EU law and national practice is more complex and multi-facetted. On the one hand, local institutional factors, administrative difficulties in dealing with uncertain law, and a lack of clear central government guidance may be just as important in determining state responses as the details of EU law. On the other hand, the substance of EU law cannot be ignored, as it may stimulate powerful national responses, often going beyond mere compliance or denial. Contained or defensive compliance can lead to policy reshaping which is potentially a powerful form of Europeanisation precisely because state initiative plays a central role. The theme of this panel is the passage from case law to national practice concerning migrant access to benefits. Neither the substantive rules, nor the local institutional reality can be ignored in this story: there is no simple choice between law or politics to be made. Behaviour is changed and shaped by a composite of influences in which questions of discretion, uncertainty, and local preference mediate powerfully the formal law.

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