EU migration, Transnational Justice and Reciprocity: Are member-states justified in restricting access to welfare rights for EU immigrants?

Is skills-selective migration in the EU justifiable? Freedom of movement, coupled with provisions for non-discrimination, appears to make skills-selective immigration policies difficult to implement within the European Union. Recently, however, UK negotiations ahead of the UK referendum have brought forward an array of arguments that aim to undermine the pertinence of both principles for the EU and to add qualifications to their implementation. One of the proposed measures is the implementation of significant restrictions on access to welfare rights for EU migrants in order to discourage low-skilled EU migration and so-called benefit tourism. Many of these arguments that have been rallied in support of these restrictions rely heavily on the importance of the distinction between low-skilled and high-skilled migration and aim to establish the qualified nature of the former against the latter. In that respect they resemble recent debates in political theory on the importance of the distinction (Brock and Blake (eds), 2015) (Carens, 2013) (Shachar and Hirschl, 1997) (Miller, 1995; 2007; 2015) (Seglow, 2005). On the other hand, the EU’s principles of freedom of movement and non-discrimination present a challenging case for political theory, as they do not fit neatly within debates between statists and globalists over the nature and scope of duties of social justice that often set the background for debates on migration. In that sense, they bring up the question as to whether member-states are justified in restricting access to welfare rights for EU migrants as a matter of justice and call us to examine more closely the normative reasons that are often employed to justify these restrictions. The purpose of this paper is to critically examine one of the most promising arguments that aspire to fill this gap in the literature. This is the claim that reciprocity-based considerations justify restrictions on access to the welfare state of host countries for both EU students and job-seekers as well as more generally for EU citizens who have not made enough contributions (of the relevant kind) to the host member-state (Sangiovanni, 2013; 2016) (Miller, 2015; Miller 2016; Carens 2013; 281). The EU, we are told, is not to cater for these cases of transnational justice. It is shown, however, that restrictions on access to welfare rights become relevant only when EU immigrants, as a group, worsen the overall position of the least advantaged of the host member state. Furthermore, it is argued that discriminating between individual net-beneficiaries and individual net-contributors among EU immigrants is incompatible with the generalised reciprocity that domestic social justice is meant to serve. Individual member-states may have no duty to bear the full net costs of EU immigration on their welfare systems but they also may have no right to make the most out of movements of people by cherry-picking certain individuals over others, by restricting access to welfare rights for some, particularly as long as such movements of people provide host member states with a net fiscal benefit that they can use to improve the condition of the least advantaged within their borders.