Unsettling the ‘settled status’ of EU citizens.
What rights do they have, and what rights might they have in the future?
Dr Bozena Sojka and Dr Emma Carmel
In all the debate about EU citizens in the UK since the Brexit vote in 2016, there hasn’t been much attention paid to social benefits and welfare. This is surprising. After all, before the referendum, it was the big talking point, when all sorts of (often inaccurate) claims were made about the rights of EU citizens to welfare, the generosity of the British welfare state towards new EU migrants, and the role this plays in increasing migration to the UK from other European countries. However, despite government efforts to get EU citizens registered with ‘settled status’ to protect their rights after Brexit, it turns out that even as full members of the EU, it has often been difficult for EU workers in the UK to secure their earned, legal entitlements.
At the moment, lawfully resident EU/EEA citizens earn entitlement to social security when they are working in the UK, because they pay national insurance contributions and general taxation, just like other workers. If they move away from the UK, the EU has a special arrangement which means that for some benefits, the contributions a worker made in the UK can get added to the contributions they make in, say Germany or Spain, so eventually they can claim their pension or other benefits. These workers can also bring entitlements with them that they have earned in similar welfare systems in other countries. This type of arrangement is called social security ‘portability.’
It is common across the world for individual countries to arrange social security benefits and contributions through ‘portability agreements’. In fact, the first portability schemes are as old as the first public old-age pensions, introduced back in the late 19th century. Portability schemes protect individual workers, and make sure that home states don’t end up picking up the bill if someone retires ‘back home’ but can’t get the pension they saved for when working elsewhere. After all, if you have paid your pension contribution with your hard-earned money while working in one country, why should you lose that money when you move countries for retirement — or another job?
In the EU, as well as individual agreements between states, there is also a 60-year old system of social security co-ordination (‘portability’) that applies among all the states at once. This system was designed to protect the pension, employment and sickness contributions of workers as they moved between any EU countries. It was ‘EU social security co-ordination’ that has helped thousands of UK citizens retire abroad, or work on building sites, as journalists, tour guides, researchers or teachers, and know that their benefits were protected.
However, in our TRANSWEL: Mobile Welfare in a Transnational Europe project we found that even though portability is highly regulated in the EU and there are well-understood common rules, the practice on the ground is very different. Indeed, our research showed that EU social ‘rights’ remain something of a distant dream as there are various barriers to access and portability that have practical effects on the incomes and security of workers. Instead of protecting every worker’s social rights, combing EU rules with restrictive applications in the UK selectively excludes particular social groups from their entitlements, according to their socioeconomic characteristics and behaviours. Workers with steadier and longer-term jobs with higher pay, and who stay for a long time, are generally able to access benefits and entitlements. Those who are in low-pay, insecure jobs like agency or gig work, and those who are not long settled, can find it difficult to access their entitlements, even when legally they should be able to.
Firstly, although EU coordination of social security rights is supposed to support the rights of mobile workers within flexible and responsive labour markets, the EU regulations are contradictory and do not support all migrants rights as they move. Individual member states use these contradictions to make national rules that affect flexible workers who have fragmented histories of migration and contributions. In contrast, one-time and long-term migrants who are employed, rather than self-employed, are more likely to access and port rights.
Secondly, given the contradictory characteristics of regulations reported by key informants and policy experts in our study, our research even raised concerns about whether even relatively well-resourced and socially embedded migrants can fully access their social security ‘rights’.
Finally, we investigated Polish migrants’ experiences with accessing social security in the UK. We found that due to the complexity of the social security system in the UK and some additional barriers, such as lack of knowledge, migrants often avoid accessing social security benefits altogether — including NHS services — even when entitled. This evidence challenges many claims made both before and after the referendum about EU migrant ‘scroungers’
In June 2018, there were 3.7 million EU nationals living in the UK and while the UK remains in the EU, it is subject to laws securing EU citizens the right to free movement throughout the Union. However, the UK is in a process of repealing free movement. According to the Withdrawal Agreement, social security co-ordination will still apply after the end of the transition period for the EU/EEA nationals who are already in the UK if they have ‘settled status’. The Home Office’s EU Settlement Scheme is designed to secure the rights of EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years. There is, however, danger that a significant number of EU nationals won’t secure their settled status. This includes: 1) long-term residents as they might assume that the scheme is designed for newcomers; 2) children as it might be unclear that they have to apply for the settler status; 3) migrants who obtained permanent residence status as they also have to apply; 4) migrants who out of fear of the complexity of application process or the costs associated with it decide not to pursue application; lastly 5) EU citizens with ‘complicated’ family lives may also face obstacles to their application (where complicated can mean quite ordinary family things, like caring for a dependent older parent or an adult child with learning difficulties; step-family relationships, or being a child).
In case of a ‘no-deal Brexit’ (whatever the date), the protections of EU social security co-ordination will lapse at the end December 2020 for people without settled status (temporary leave to remain). Anyone who does have this status, has access to the same entitlements for another 36 months. However, as our research shows, these current entitlements are unequal and poorly regulated especially for low-income EU workers; for any EU citizens not ‘settled’ by December, the situation is very much worse.
Acknowledgement
This work draws on data generated for TRANSWEL: Mobile Welfare in a Transnational Europe: An Analysis of Portability Regimes of Social Security Rights project’ at the Department of Social & Policy Sciences, University of Bath and funded by the New Opportunities for Research Funding Agency Cooperation in Europe (NORFACE).
