From Challenging Equality to Challenging the Right to Residence: Union Citizens and the Loss of Residence in the Dutch Welfare State

When the European Court of Justice delivered its Martínez-Sala judgment, it was generally interpreted by the academic community as providing (‘radical’) social equality to Union citizens residing in their host Member State. Simultaneously, however, some scholars already observed that extending the principle of equal treatment to all EU nationals living in another Member State might give those Member States an incentive to ‘chase’ needy Union citizens from their territories by challenging their lawful residence, ultimately leading to an even more restrictive regime. This paper explores this early thesis by studying various legal and administrative practices at the edge of territorial residence and access to the welfare state. By taking the Netherlands as a case study, it will particularly look into (1) practices challenging the right of residence of those Union citizens who are considered to be an ‘unreasonable burden’ on the social assistance system, (2) expulsion measures against homeless Union citizens and (3) expulsion measures against EU partners of welfare recipients. Analysing legislative and policy documents, domestic case law and 20 expert interviews, the paper finds that the Netherlands gradually readjusted its legal and administrative system dealing with questions of inclusion and exclusion of Union citizens from challenging the principle of equality towards the challenging of residence rights. Although it is difficult to conclude whether this new administrative regime is more restrictive, it will be argued that the very threat of losing once residence impacts on the social equality of Union citizens in practice.