Insiders, Outsiders, and the Constructed Limits to Social Rights in EU Law

Table of Contents: 1. Introduction. – 2. The limitations of social rights of EU migrants. – 2.1. Secondary law. – 2.2. The consolidation of the limitations in the case law. 3. The differentiated social rights of non-EU migrants. – 3.1. Accepted limitations to social rights of non-EU migrants. – 3.2. The judicial review of the limitations. – 4. Combining the approaches? – 4.1. The potential for Charter rights to guide both frameworks – 4.2. Financial solidarity dictating the outer limits to social rights for all migrants.

Abstract: This paper engages with limitations to social rights for different categories of migrants under EU law. By looking at how EU law construes accepted limitations to social rights and how the Court of Justice reviews such limitations, the paper suggests that there is room for different interpretation of limitations to social rights under secondary law in view of a more coherent understanding of their function under EU law. Specifically, the paper maps the accepted limitations to the social rights of EU migrants, long-term residents, and regular migrants. By reviewing the justifications put forward behind all the accepted limitations to social rights, the paper argues that the function served by limitations to social rights is uniform across all categories of migrants: that is avoiding the presumed negative effects of migration to national redistributive mechanisms. At the same time, the Court follows different paths of review depending on the status of the migrants (EU or non-EU). While some differentiation in the approach followed by the Court is justified, the paper argues that there is room for evolution in judicial review by combining elements of the judicial approach for both EU and non-EU migrants in light of the social objectives of the EU under Article 3 TEU and the Charter. The paper presents the potential of this combination not as a groundbreaking shift in the functional approach followed by EU law to social rights, but rather as a limited change that can bring about more extensive protection of social rights for all migrants.

Keywords: migration – social rights – equal treatment – EU citizens – long-term residents – migrants.

1.   Introduction

This paper analyses accepted limitations to social rights of migrants under EU law in order to demonstrate how judicial review on the matter could evolve and better align with primary law. Some preliminary notes should be made in this regard. First, by social rights the paper refers to equal treatment provided under EU law on access to social security, social assistance, and other state supported facilities like education and healthcare in different instruments.[1] When reference is made to equal treatment the comparator is always the national of the Member State where the migrant resides. This is the case in all the instruments providing for equal treatment as regards various social rights for both EU and non-EU migrants.[2] Second, when referring to accepted limitations to social rights, reference is made to limitations to equal treatment which are provided in the relevant secondary law. Third, throughout the paper I refer to social and economic considerations behind the limitations to social rights. By this I mean factual elements examined by EU institutions when adopting a legal instrument or interpreting EU law. Economic considerations refer to factors related to the economy of the Member States more broadly, including, for example, labour market conditions, recession, trade. Social considerations refer to factors related to human life and society including, for example, human rights, social cohesion, education, social welfare. These considerations are taken into account in the adoption of secondary legislation as well as in the interpretation of EU law in order to ensure the development of the legal system in line with primary law objectives.[3] Finally, when referring to migrants, the analysis follows a literal understanding of the migrant status and it means all the individuals who move away from their country of origin and establish themselves in an EU Member State. This means that the paper will analyse the relevant secondary law and case law as regards both EU and non-EU migrants.

Migration law research under EU law is usually dichotomized along two distinct categories: free movement, and migration from third countries. There is a presumed difference in the normative foundations of the attribution of rights to each category of migrants under these frameworks, with different literature addressing the two frameworks.[4] On the one hand, an independent body of literature has developed on free movement and the rights that are enjoyed by EU migrants in that framework.[5] In this literature, and in the EU institutional practice, migration is termed as mobility, so as to emphasize its domestic character.[6] EU migrants are referred to as citizens and they enjoy specific (privileged) mobility rights and certain political rights.[7] The history of EU migrants’ rights tells a story of gradual attribution of rights as a means to ‘the legal and practical realization of the internal market’.[8] In this context, Thym has noted that there is a ‘normative surplus’ of EU citizens’ rights because their implementation is ‘meant to sustain the integration process’.[9] On the other hand, migration to the EU from third countries is examined in the context of the Area of Freedom, Security and Justice.[10] The central presumption on the regulation of migration from third countries is that it was introduced to ensure that a true Area of Freedom, Security and Justice would be available to EU citizens on the move.[11] The literature that engages with migration from third countries to the EU is primarily human rights geared. Scholars explore international and EU human rights frameworks, and they argue for the necessity of a more liberal approach to third-country nationals.[12] Critical scholars have also engaged in research in this field. Specifically, some have criticized the EU legal order for the exclusion of migrants therefrom and have identified different reasons underlying it.[13] Few scholars have addressed adequately both EU migrants and third-country nationals in their research, with emphasis on the divergence of the frameworks.[14]

By examining the accepted limitations to social rights as they appear in secondary law and case law for both EU and non-EU migrants, the paper shows that there are overlaps behind the objectives served by the attribution of such rights, while divergences exist behind the legitimate limitations. But the areas of convergence and divergence are to some extent counterintuitive. While both categories of migrants are attributed rights in view of their economic function, one would expect that the limitations to EU migrants’ social rights would be reviewed in light of the primary status of EU citizenship for the EU constitutional architecture. However, in practice, limitations to social rights are reviewed in light of their economic function. At the same time the limitations to non-EU migrants’ rights are reviewed in light of their social function and in view of the need to protect their rights under the Charter. After presenting these two frameworks in the analysis that follows in Sections 2 and 3, the paper offers insights on how we could combine the two approaches to the benefit of both groups in Section 4. Specifically, the paper argues for more use of the Charter as a means of review for the rights of EU migrants, and economic considerations as a means for extension of the rights of non-EU migrants.

2.   The limitation of social rights of EU migrants

The social rights of EU migrants and their corresponding limitations date back to the establishment of Community law. National disputes centred on the limits of financial solidarity between Member States, the rights to be enjoyed by migrant workers and the national organisation of the welfare state lay behind the establishment of core legal concepts and principles of the free movement of workers.[15] From the 1970s, to the tumultuous litigation of the Court in the years following the economic crisis of 2008, residence rights and the corresponding equal access to social rights for EU migrants has always been central to the Court’s docket.[16] EU law scholarship has been equally occupied with following the developments, making sense of the case law and the obligations it creates for Member States, and envisioning ways in which such rights operate against the background of the provisions on EU citizenship and free movement of persons.[17] The following section will first present the relevant secondary law, while section 2.2 will engage with the case law of the Court.

2.1. Secondary law

In the relevant area of EU law two instruments are key when examining the relation of residence rights and equal access to social rights, as well as its their corresponding limitations.[18] First, the Citizens’ Rights Directive which was adopted to ensure the effective exercise of free movement rights drawn by the status of the EU citizenship under Article 21 TFEU.[19] The Directive harmonised the conditions of entry and residence of EU migrants as well as their family members. Since the Directive provides for residence rights for economically inactive EU migrants and job seekers (that is migrants that do not make an economic contribution to the host state), equal access to social rights can be limited. Article 24(2) of the Directive provides that Member States have no obligation to grant equal access to social assistance during the first three months of residence or to migrants who entered as jobseekers. The same provision allows Member States to restrict equal treatment regarding maintenance aid for studies to economically active migrants and their families and to only allow such aid to economically inactive migrants after the acquisition of a right of permanent residence. The reason why such limitations were introduced in the Directive is to avoid EU migrants becoming unreasonable burdens on the social assistance system of the host state.[20]

Essentially it is workers, self-employed migrants and their families that enjoy full equal treatment rights and do not fall under the derogation of Article 24(2) Citizens’ Rights Directive. The differentiation in this, and the broader attribution of rights under this Directive lies in the presumption that workers, by virtue of their status, cannot become a burden, but will rather be net contributors to the system. What is more, even if workers were entitled to equal treatment under Article 24, there is limited potential are that they would overburden national welfare systems, as they would be excluded from them for other reasons. Specifically, social assistance is usually aimed at supporting persons through mechanisms of solidarity so that they can have a decent livelihood. Workers and self-employed individuals would most probably be excluded on the basis of their finances, as they would have sufficient resources to ensure their livelihood without the need of state support.

In parallel to the Citizens’ Rights Directive, the Worker’s Regulation attributes more specific rights to EU migrant workers and their family members.[21] The Regulation was adopted as means to ensure the effective exercise of free movement of workers under Article 45 TFEU and codified earlier legislation in the field.[22] Without creating new rights compared to the earlier framework, Article 7(2) of said regulation provides for equal treatment for workers and their families as regards social and tax advantages in the host Member State. This provision has historically been interpreted broadly as a specific expression of equal treatment as prescribed in Article 45(2) TFEU and it has set the basis for extensive protection of social rights for EU migrant workers and their families.[23]

Overall, free movement of EU migrants develops with clearly construed limitations in secondary law to minimize the negative impacts of migrant movement on national economies. The limitation of rights under the relevant Directive is based on the objective of maintaining the financial equilibrium of the Member States and is construed with due regard to financial solidarity between Member States.[24] Both secondary law and case law, as will be explained in the next section, acknowledge a clear link between the economic contribution of an EU migrant and the more extensive social rights they are entitled to under the Workers Regulation. The economic function of the migrant is the source of more extensive social rights, as has been the case already since free movement of workers under Community law. At the same time the protection of public finances is put forward as the justification for the relevant limitations.

2.2. The consolidation of the limitations in the case law

After the introduction of the EU citizenship provisions with the Maastricht Treaty, the Court of Justice of the EU proceeded in expansive interpretations of equal access to social rights for various nationals who could not establish residence rights under the secondary law of the time.[25] This was celebrated in scholarship as an indication of the potential of EU citizenship as an independent status, disconnected from statist limitations.[26]

In the relevant case-law, the Court did not invalidate the limitations prescribed in secondary law. Rather, while acknowledging the economic considerations that preclude the unlimited enjoyment of rights by EU migrants, it tried to expand protection by focusing on how such limits should be reviewed in light of the social and political objectives of primary law that established the legal status of EU citizenship.[27] In this early case-law, the Court made a differentiation between EU residence rights, which could be limited for economic reasons, and social rights stemming from EU citizenship, once a migrant finds themselves in a host state.[28] Member States could deny residence to economically inactive EU migrants who did not possess sufficient resources, in order to protect their national welfare systems from collapse. However, if they recognized a right of residence under national law, by virtue of this lawfulness of residence, EU migrants had to be protected under equal treatment provisions, furthering the objectives of social cohesion in the Member States. In this balancing of economic considerations as a limit to residence and social considerations behind treatment in the host state, the Court acknowledged the discretion of Member States to remove EU migrants who had recourse to the social assistance system, however such removal should not be the automatic consequence of having recourse to the social assistance system.[29] In different cases, different considerations were invoked by the Court as criteria to be taken into account when Member States carry the balancing act between granting social assistance and preserving the public finances of Member States.[30] In the relevant case law, as Jesse and Carter have suggested, the Court acknowledged the legitimate interest of Member States to protect their national welfare systems, but in practice it strengthened the position of EU migrants seeking access to social assistance.[31]

This approach of the Court did not last for long but rather shifted soon after the adoption of the Citizens’ Rights Directive.[32] The most representative case on the matter, and one that has been well examined in the literature is the Dano case.[33] In this case, the Court held that access to social benefits under equal treatment presupposed not lawful residence of any kind, but lawful residence in accordance with the conditions of the Directive.[34] By setting these conditions, the EU legislature aimed at preventing the movement of people who could pose risks to the social assistance system of the Member States.[35] According to the Court, if EU migrants did not comply with the conditions of the Directive on residence rights, they could not claim equal treatment under the EU primary law, as this would run contrary to the objective of secondary law, ‘namely preventing Union citizens who are nationals of other Member States from becoming an unreasonable burden on the social assistance system of the host Member State’.[36] The Court also suggested that by setting these conditions in Article 7(1)(b), the Citizens’ Rights Directive sought to prevent economically inactive EU migrants from using the host states’ welfare system as means to fund their subsistence.[37] This approach was confirmed in Alimanovic and later, in Garcia Nietto, which concerned access to benefits during the first three-month period of unconditional residence.[38] The Court confirmed that only residence that complied with the conditions set by the Directive qualified for equal treatment, and not any kind of lawful residence. The economic conditioning of a right to reside as a basis of equal treatment was confirmed more clearly in Commission v the UK.[39] The case concerned a UK law which required the existence of EU residence rights as a condition to access a child benefit. The UK would essentially screen applicants who claimed this benefit and then expel them if they did not meet the conditions of the Citizens’ Rights Directive regarding residence in the UK. While acknowledging that the requirement of legal residence under EU law constituted indirect discrimination, the Court found this justified.[40] Specifically, it held that such limitations were in line with EU law and could achieve the legitimate objective of protecting public finances.[41]

In parallel, more recent jurisprudential evolutions suggest that the Court draws a clear line between free movement of persons and free movement of workers, when it comes to reviewing limitations for access to social rights.[42] Historically, the Court has allowed for more privileged treatment of workers and former workers as regards residence rights for them and their family members.[43] This has been due to the assumption that free movement of workers requires the best possible conditions for the integration of people on the move, and this is achieved by allowing residence for their family members, whereas free movement of persons requires clearly construed limitations to minimize the negative impact of movement on national economies.[44] This extensive protection of residence rights for workers lies behind the more extensive application of equal treatment in access to social assistance for former workers. In Jobcenter Krefeld, the Court held that parents of children who enjoyed a right of residence under the Workers Regulation should have access to social assistance under the more favourable conditions of Article 7(2) of the same Regulation  and should not be covered by the limitations of the Citizens’ Rights Directive.[45] The case concerned JD a Polish worker residing in Germany with his daughters who were attending school there. Due to disruptions in his work, JD received social protection benefits for a period of nine months (subsidiary unemployment benefits and subsistence benefits for daughters), which were discontinued. Due to the length of the period during which JD was unemployed, the German authorities deemed that he could no longer retain the status of a worker, but he was rather considered a job-seeker. His right of residence at that stage was derived from the fact that his daughters were attending school by virtue of the Workers Regulation. So, the national court asked how the accepted limitations to equal treatment, which were meant to apply to job-seekers under the Citizens’ Rights Directive, should apply to persons who had the right of residence under the Workers Regulation, and who could no longer be considered workers.

As AG Pitruzzela mentioned in his Opinion, this case demanded that the Court clarify the limits of social solidarity.[46] And it did so by reference to the different objectives of free movement of workers and free movement of persons. In light of the objective of the Citizens’ Rights Directive, the limitation to equal treatment is established as a means to minimize the negative economic impact of attribution of rights to migrants. In the case at hand, the Court held that that there was an ‘appreciable distinction’ to be made between a EU migrant who worked in a Member State and had children in school there and then became unemployed (residence under Article 10 Workers Regulation), an EU migrant who resided in a Member State for less than three months (residence under Article 6(1) Citizens’ Rights Directive),[47] and an EU migrant who resided in a Member State as a first-time job-seeker (residence under Article 14(4) Citizens’ Rights Directive).[48] The latter two categories were those excluded from equal treatment in social assistance under Article 24(2) Citizens’ Rights Directive. The appreciable distinction which the Court mentioned essentially refers to the fact that an EU migrant has worked and contributed to growth in the first scenario. Due to this, their subsequent unemployment, together with the fact of having children in the host Member State, means that their claim to equal treatment should be accepted, as it would not adversely affect the economy of Member States.[49]

The differentiation between the accepted limitations for EU migrant workers and the accepted limitations in free movement of persons was confirmed in Chief Appeals Officers where the Court examined the question of equal access to social assistance by dependent relatives in the ascending line of EU migrant workers.[50] In this case, the Court confirmed that different justifications can be accepted for limitations to equal access to social rights for EU migrants and their family members depending on whether they are workers or not.[51] Specifically, the Court suggested that migrant workers contribute to the economy of the host state and relatedly, the limitation of their (or their family members’) social rights cannot be justified by considerations related to the protection of the national welfare system to which after all they have personally contributed by paying taxes. [52] The objective of Recital 10 of the Citizens’ Rights Directive in relation to an unreasonable burden potentially placed on the social assistance systems of Member States can justify the limitation of rights in the context of free movement of persons, but not in the context of free movement of workers. This finding is also reflective of the more privileged treatment secondary law reserves for economically active migrants and their family members as reflected both in the parallel existence of the Workers Regulation and the Citizens’ Rights Directive and in more specific provisions of the latter.[53] The above analysis shows that both secondary law and case-law acknowledge a clear link between the economic contribution of an EU migrant and the more extensive social rights they are entitled to, as well as between the accepted limitation of social rights and the protection of public finances.

3.   The Differentiated Social Rights of Non-EU Migrants

Contrary to the functional logic that dictated the attribution of social rights to EU migrants, the harmonization of access to social rights for non-EU migrants on equal terms with nationals of the Member States where they reside has been dictated under both a socially oriented and an economic logic. Specifically, at the time when the EU migration policy was being shaped, the EU was promoting an identity that was socially and culturally pluralistic, based on respect of human rights and human dignity.[54] At the same time, equality for non-EU migrant workers was linked to the observance of labour law, as a precondition for attracting migrants for highly skilled jobs, a demand the EU population could not meet.[55] As the Commission stated in a Communication in 2004, granting such equality in terms of wages and working conditions was in the interest of society, which could benefit fully from the contribution of migrants to the economic and social life, while at the same time this would ensure that economic exploitation would not fuel unfair competition in the Union.[56] The rights non-EU migrants enjoy under secondary law today are provided in different instruments based on the category of migration.

Specifically, the Single Permit Directive lays down a minimum core of rights for all migrants, resident in EU territory, regardless of whether such migrants draw their right to reside from national or EU law.[57] In the corresponding attribution of rights, we see the reproduction of the considerations of the EU institutions and the Court behind the rights of EU migrants at the initial stages of Community law. The first such consideration is that non-EU migrants contribute through their work to the EU project and, therefore, they should enjoy a set of rights.[58] Secondly, granting rights equal to those of the nationals of the host Member State to non-EU migrants ensures that there is no unfair competition between the Member States, but also between non-EU and EU migrants, thus avoiding social dumping and migrant exploitation.[59] In reproducing such considerations, the Single Permit Directive constitutes yet another attempt to align migration with the economic and social objectives of the EU. Note that a recast Single Permit Directive has been adopted in April 2024 and was presented by the Commission in 2022 with emphasis on fundamental rights protection for migrants in line with the case law.[60]

Next to the Single Permit Directive, the Family Reunification Directive adopted in 2003 applies to all legally resident non-EU migrants and excludes all migrants whose status is considered uncertain or temporary granting the former family reunification rights as means to promote economic and social cohesion.[61] The Family Reunification Directive provides certain social rights to the family members of the migrants under Article 14 with reference on equal terms as those applicable to the sponsor. However such rights will not be analysed further, as the focus of the article is on the limitations of social rights for EU and non-EU migrants to the exclusion of the derivative rights of their family members.[62] In parallel, a series of sectoral Directives include more specific provisions and grant rights of different kind and extent to researchers and students, highly skilled workers, intra-corporate transferees and seasonal workers.[63] These sectoral instruments provide for specific rights attached to each category of migrants. Finally, the Long-Term Residents Directive regulates the rights of non-EU migrants who have lawfully resided in a Member State for a period of five years. This Directive was introduced as means to promote the social objectives of the EU by ensuring fair treatment to legally resident non-EU migrants and to put in place an integration policy that would grand non-EU migrants rights and obligations comparable to those of EU migrants.[64] Recital 4 of the Directive mentions that the integration of non-EU migrants who have had a long residence in the EU is key in promoting the economic and social cohesion of the Union.[65] The following section will present the accepted limitations to social rights under these instruments, while section 3.2 will present how such limitations have been reviewed in the case-law.

3.1.  Accepted Limitations to Social Rights of Non-EU Migrants

Equal access to social rights is guaranteed in all the relevant Directives. However, instead of general equal treatment clauses, the framework in place now provides detailed enumeration of the areas where equal treatment must be granted, as well as the accepted limitations to these areas.[66]

The table below shows the areas where the Directives provide for social rights, as well as the accepted limitations to such rights.[67]

Table. Rights under the Migration Directives.

First of all, the Long-term residents Directive is the only instrument providing for equal access to employment and self- employed activities. However, Member States are allowed to limit equal access to employment for activities reserved for EU or EEA nationals, as well as regards positions which involve the exercise of public authority, thereby mirroring the relevant limitations of Article 45(4) TFEU. Next to this, unlimited equal treatment is guaranteed regarding working conditions; however, there is a lack of coherence in the way this is framed in the relevant Directives.[68] Despite the different framing, it is safe to assume that the right applies to all legally resident migrants without differentiation, as it constitutes an expression of Article 13 of the Charter.[69] Equal treatment as regards recognition of professional qualifications is also provided in all the Directives. The Legal Fitness Check suggested extending this right to applicants for permits who have not yet been authorized to enter/reside in the EU, as in some cases the recognition of professional qualifications is necessary for access to certain employment, as is the case for highly skilled workers and researchers.[70] In addition, all the Directives provide equal treatment as regards access to advice services afforded by employment offices apart from the Long-term residents one which makes no mention to the relevant right.[71] This exclusion is peculiar, however the general right to access employment services under the other directives should not come as a surprise in light of the continuous emphasis in different Commission documents on training the existing workforce to correspond to new needs and on ensuring that labour needs are covered by non-EU migrants already resident and active in the internal market.[72] Finally, all the Directives also provide for freedom of association and affiliation. The Seasonal Workers Directive makes explicit reference to the right to strike and take industrial action, including the right to negotiate and conclude collective agreements. In any case, the relevant right is a specific expression of Article 12 of the Charter, and as a result, it should not be differentiated between different categories of non-EU migrants, as the right is guaranteed to everyone regardless of their nationality.[73]

As to the rest of the areas mentioned in the table where equal treatment is required, they appear with different limitations and variations. Some can be explained due to other rights, enjoyed by non-EU migrants (whether they enjoy mobility rights or not, and what is the status under which they entered), while others are firmly based on economic considerations of averting risks from migration. Specifically, in the area of education, limitations appear in all the instruments, allowing Member States to exclude study grants from equal access to migrants.[74] What is more, Member States are given the possibility to set conditions of access to university and higher education.[75] In the Single Permit Directive, the text mentions appropriate language proficiency, payment of fees or specific educational prerequisites as possible conditions, and Member States can also limit access to education, if it is not linked to the specific employment activity of the non-EU migrant.[76] A similar possibility on limiting equal treatment regarding access to education or training directly linked to the employment activity also exists in the Seasonal Workers Directive.[77] Finally, the Single Permit Directive provides for the possibility to limit the application of equal access to education to non-EU migrants who are employed, or are registered as unemployed, and to exclude students.[78] In the area of education, the Fitness Check conducted in 2019 by the Commission that

While some [restrictions] appear ‘logical’, such as the restriction in the SPD [Single Permit Directive] that the right can be limited to those who are in employment or are registered as unemployed, the reason why others have been introduced in one or more Directives (but not in others) cannot be easily explained, such as the restrictions related to language proficiency and the fulfilment of specific educational prerequisites.[79]

Arguably, even such limitation is not really justified if we take into account the social aims pursued by the Directives. Apart from aligning migration with the economic objectives of the EU, the relevant instruments seek to secure fair treatment for migrants and to achieve some kind of social progress in the form of rights attributed to migrants. The emphasis put on education as part of the integration policies pursued at EU level to ensure social cohesion necessitates full equal treatment as regards access to education.[80]

Another area of tension is access to social security, social assistance, and social protection, which are differentiated between the categories of non-EU migrants. The Legal Fitness Check suggested that the limitation of access to social security in employment related Directives is justified, as this is linked to the condition that migrants have sufficient resources to not become a burden.[81] Equal treatment applies to social security as a recognition that workers contribute by their work and tax payments to public finances, and to serve as a safeguard against unfair competition that may result from exploitation.[82] Social assistance, in contrast, was deliberately excluded from the relevant Directives because incoming migrants should have sufficient resources not to require financial support.[83] Social assistance and social protection is secured only for long-term residents, but even in their case, it can be limited to core benefits. This was not what the Commission had aimed for in the original proposals while it also suggested the removal of such limitation in the proposal for a recast Long-term residents Directive.[84] As regards the Directives that also provide rights to free movement in the EU, limitations can be introduced, and equal treatment can be limited to the Member State where the migrants have their registered place of residence.[85]

It should be noted that all these Directives operate against the background of Article 20 of the Charter, which provides for equality before the law within the scope of EU law. Unequal treatment is thereby allowed to the extent it can be justified. Relatedly, the Legal Fitness Check suggested that EU migration law, in the way it is formed through the relevant Directives, could be described as a ‘fine-tuning of legitimate differentiated treatment’.[86] Looking at the way equal treatment is dissected and diluted in the relevant provisions, it is clear that limitations are inserted in order to avoid repercussions of granting rights to public finances. In cases where equal treatment comes with no cost for national economies, there is no reason to discriminate. However, in light of the parallel pursuit of economic and social objectives in these instruments, the question that remains open is to what extent social cohesion can be guaranteed when equal treatment is intentionally limited to deprive migrants from EU law protection.[87] The next section will look at how the relevant limitations have been judicially reviewed in the case law of the Court.

3.2.  The Judicial Review of the Limitations

Contrary to the legislative intention to differentiate social rights between different categories of migrants and to dilute equal treatment by allowing for limitations in order to avoid presumed economic repercussions, the Court has followed a consistent approach and has guaranteed the rights of migrants by reviewing different national limitations in light of the Charter. Economic considerations are not absent from the case law of the Court, and the Court acknowledges how these have shaped the rights of migrants. Nevertheless, it consistently emphasizes the protection afforded by the Charter to consolidate the rights of non-EU migrants. Against the incoherent economic obsession with conditioning the rights of migrant workers in secondary law so that they do not pose risks for the economy discussed earlier, the Court has put forward a positive vision related to the rights all migrants should enjoy under EU law. This concerns not only migrants covered under secondary law but also those whose residence status in Member States is irregular.

Specifically, in Tümer the Court had to interpret the scope of application of Directive 80/987/EEC on the protection of employees in the event of insolvency of their employer.[88] Tümer, a Turkish national living in the Netherlands, had worked for a company that was declared insolvent. His application for insolvency benefit was rejected on the ground that he was not legally resident in the Netherlands. In that case, the Netherlands argued that since the Directive was based on Article 137 EC, which provided the Union with competence to adopt Directives with a view to achieving social objectives related to the improvement of working conditions, it could not apply to non-EU nationals, even legally resident ones.[89] If legally resident migrants were to be protected, the state argued that the concept of employee could be construed under national law to exclude migrants whose residence is irregular.

AG Bot suggested that excluding non-EU migrants workers from protective measures adopted for employees would not be compatible with the purpose of EU social policy, as it would encourage the recruitment of foreign labour in order to reduce wage costs.[90] Additionally, with reference to Germany and others v Commission, he emphasized that the Court had already acknowledged the relation of the Union’s social policy to the policy that applied to workers from third countries.[91] The AG proceeded to suggest that the crucial factor triggering obligations under the relevant Directive was the employment relationship of a person to an insolvent employer.[92] Importing a condition of nationality in the scope of the Directive would go against its objective to guarantee all employees in the EU a minimum level of protection.[93] He then went on to examine whether there was discretion on the part of Member States to exclude irregularly resident migrants. In this examination, he suggested that since the employee status was the crucial status, making it conditional to legal residence would go against non-discrimination.[94] The AG suggested that irregularly resident migrants who had worked and paid contributions were in a comparable situation to other employees, and there was nothing to justify a differentiated treatment.[95]

The Court confirmed the AG’s approach and noted that the EU social policy was concerned with promoting the living and working conditions of both nationals of the EU Member States and non-EU nationals.[96] It held that Member States could not define the term ‘employee’ in such a way as to undermine the social objective of the Directive.[97] As a result, the Directive was found to preclude national laws, such as the Dutch one, which strip migrants with irregular residence of protection. As long as somebody is in employment, the social rights they derive therefrom should not be undermined because their residence is not regularised. This case is significant in showing the application of EU social policy for all migrants engaged in the EU development project. What is more, it is crucial for understanding how the economic contribution made by migrants’ work is at the heart of the protection afforded by EU law in ways similar to the protection afforded to EU migrants.

Next to this case, the Court has also handed down rulings reconstructing equal treatment and limiting the effects of secondary law for the rights of migrants. The line of reasoning that underlies the relevant case law was set in Kamberaj, which concerned discriminatory conditions for access to a housing benefit by a long-term resident. In that case, the Court held that while the provisions of the Long-term residents Directive provided for equal treatment in access to social security, social assistance and social protection as defined in national law, these concepts could not be defined unilaterally by Member States without the risk of undermining the effectiveness of the Directive.[98] The interpretation of what constitutes social security, social assistance and social protection under national law needs to comply with the Charter. Article 34 of the Charter guarantees equal treatment regarding access to specific social benefits in order to guarantee decent living to all those who lack sufficient resources.

In light of this, the Court held that national courts should interpret the relevant concept of social assistance in the Long-term residents Directive in light of the Charter in order to assess whether benefits of different kinds fell under the categories of benefits where equal treatment should be provided.[99] The Court further stated that the limitation allowed under Article 11(4) of the Directive should be interpreted strictly in light of the social purpose of integration.[100] It also clarified that the provision of the Directive which allowed the limitation of equal treatment only to core benefits could not be invoked on a case-by-case basis. Rather, such a limitation needs to be expressed clearly at the time of implementation of the Directive in national law.[101] It further suggested that the meaning and scope of core benefits for the purposes of equal treatment should be construed with reference to the purpose of integration as the objective for long-term residents.[102] It thus held that core benefits are benefits that enable individuals to meet their basic needs such as food, accommodation and health, and should be aligned with the minimum benefits covered by the Charter.[103]

A similar reasoning was followed by the Court in relation to rights under the Single Permit Directive in Martinez Silva.[104] In that case a migrant worker was excluded from a grant that was provided to households with at least three minor children and income below a minimum amount. The Single Permit Directive provides for equal treatment not in line with national law, but with reference to social security as defined in Regulation 883/2004 and, more specifically, the family benefits covered under Article 3(1)(j) thereof.[105] The Court found that the benefit at issue fell under Article 3(1)(j) of Regulation No 883/2004, with reference to previous case law where it had held that family benefits covered all kinds of benefits which are automatically granted to families on the basis of objective criteria without discretionary assessment of personal needs, and which are intended to meet family expenses, as a public contribution to the family’s budget to alleviate the burdens involved in the maintenance of children.[106] Once more, the Court pointed to the possibility to derogate from equal treatment provided in the Directive, but it held that such a possibility existed only if the Member State explicitly chose so at the transposition of the Directive.[107]

The line of case law developed in Kamberaj for long-term residents, and applied in Martinez Silva under the Single Permit Directive, has been since confirmed regarding different types of benefits claimed by non-EU migrants.[108] The Court has followed a clear line of reasoning in promoting the equal treatment for this group. When it comes core benefits, to determine if they need to be granted under equal treatment conditions, Member States need to comply with the Charter and particularly Article 34 thereof. If a benefit serves the purpose set out in Article 34 of the Charter, then non-EU migrants can in no case be excluded therefrom. The central evaluation then seems to concern the purpose of the benefit: does it aim at making life liveable and ensuring a decent existence for all? If so, it needs to be granted to all migrants at the same way in which it is granted to nationals. As regards long-term residents this is guided by the objective of integration, whereas as regards all migrants covered under the Single Permit Directive this is due to the objective of ensuring fair treatment. Then as regards permissible limitations to equal treatment provided under the Directives, Member States must explicitly exclude migrants therefrom by applying them when they transpose the relevant Directives. It is only in such cases that the Court could consider that the relevant discriminatory attribution falls within national law and the relevant measures cannot be reviewed for compliance with the Charter.

In this case law, we see that the Court puts forward the social objectives served by secondary law (integration of long-term residents and fair treatment for all legally resident migrants) not as a byproduct of the economic contribution of the migrants, but rather under a positive vision of social justice in line with the social objectives of primary law. In doing so, the Court connects the protection of migrants under EU law with the evolution of the legal order and the incorporation of human rights guarantees under the Charter. By correlating the limitations allowed under secondary law to the provisions of the Charter, it dictates minimum safeguards of fundamental rights protection, thereby limiting the space for derogation by Member States and the EU legislator.[109]

4.   Combining the approaches?

Having reviewed the framework of accepted limitations to social rights of EU and non-EU migrants the following can be said. On the one hand limitations to social rights for both EU and non- EU migrants are closely connected to an economic logic. The emphasis on unreasonable burdens to national welfare systems and potential negative economic effects of migration dictate the accepted limitations to social rights. After all social rights are attributed due to the contribution one has made to the EU development project. While this understanding is common between the two frameworks, the reason why social rights are attributed to non-EU migrants as well as the judicial review of the limits applicable to such rights is not exclusively economic. Specifically non-EU migrants are attributed social rights also with a view to social cohesion and integration (an integration that is presumably more easily achieved by EU migrants). This means that when such limitations are reviewed the potential burdens to national welfare systems are weighed against the Charter, thereby ensuring equal access to a minimum set of social rights that can guarantee a dignified life for all those who fall within the scope of EU law. This approach of the Court stands in stark contrast to the interpretations followed on EU migrants’ rights, where it has accepted a consolidation of balancing of economic and social objectives by the EU legislature as expressed in the Citizens’ Rights Directive. The differentiation could be connected to the maturity of the legal framework on EU migrants, which has been constantly transforming since the 1960s. Secondary law on migration, on the other hand, is very recent and has developed in an ‘environment in which national jealousies and priorities are never far from the surface’.[110] In any case, regarding disputes on limitations of social rights of non-EU migrants, the Court consistently reviews national law in light of a more positive vision of what individual rights should look like in a legal system whose constitutional architecture is completed by the adoption of the Charter.

What are we to make of these opposing, yet overlapping logics? Most importantly what are we to make of the overlap behind the reasons why rights are attributed, at the time when limitations to such rights are justified in view of economic considerations for EU migrants but reviewed in light of human rights considerations for non-EU migrants? Such a differentiation would be acceptable if, unlike what the CJEU case law suggests, we were to accept that EU migrants do not ‘enjoy a different status and rights of a different kind’, arguably higher compared to non-EU migrants.[111] However the Court has consistently emphasised this difference and it has avoided applying its free movement reasoning even in cases concerning long-term residents whose status was supposed to grant them with ‘a set of uniform rights which are as near as possible to those enjoyed by citizens of the European Union’.[112]

Taking as a starting point EU law as a complete system of legal remedies complemented with a Charter of Fundamental Rights as a basis for judicial review, the next section suggests that the Charter should gain more ground as a basis of review of limitations to social rights under the Citizens’ Rights Directive.[113] Following, section 4.2 discusses the limitations of the EU legal system due to the attribution of rights in the form of equal opportunities, but also the financial solidarity justification as a reason for attribution of more extensive social rights to EU migrants. That section suggests that despite these limitations, there is a basis for revisiting some of the current accepted limitations to social rights under secondary law for non-EU migrants. The suggestions put forward do not aim to overhaul the current functional approach to social rights in EU law. Rather the argument develops by suggesting that even with a functional approach to social rights, the current framework can and should deliver more for both EU and non-EU migrants.

4.1.  The potential for Charter rights to guide both frameworks

As demonstrated earlier in section 3.2 the Charter has been extensively used when it comes to judicial review of limitations to the social rights of non-EU migrants. The extensive use of the Charter is aligned with the theoretical approach of Thym on EU migration law as a legal area whose constitutional point of reference is a cosmopolitan outlook.[114] According to Thym, the cosmopolitan outlook describes a migration governance that can ‘combine migratory opportunities for the economically motivated with the pursuit of legitimate concerns of democratic self-government’ of the Member States.[115] These concerns, he argues, can be economic, social and cultural such as protecting less qualified domestic workers or supporting linguistic integration.[116] The cosmopolitan outlook suggested by Thym essentially describes the curtailment of absolute state discretion on migration due to considerations related to migrants as human beings, whose rights should be protected.[117] On a first level of analysis, Thym’s approach can explain the differentiation in judicial review to social rights limitations as distilled from sections 2.2. and 3.2 respectively if we look at the EU legal system in relation to domestic law and the different restraints it creates for national legal orders.

However, if we look at EU law from an internal perspective related to the structure of the EU legal order and its constitutional characteristics, it is counterintuitive that the Charter does not play an equally important role for those holding the status of EU citizenship.[118] A typical constitutional framework would demand full and equal protection of fundamental rights for citizens, with limited/curtailed protection for aliens. However, in EU law the protection of fundamental rights is determined by whether a legal dispute falls within the scope of EU law. As a result, the way in which fundamental rights application has developed in the case law challenges ‘common wisdom about the way in which a political entity engages with the fundamental rights of citizens and foreigners’.[119] This particularity creates paradoxes for the interaction of EU citizenship and migration law with the EU constitutional framework, which have been examined in different contributions by Iglesias Sánchez.[120] In her work, she has shown that the specificity of the EU fundamental rights protection regime, combined with the EU competence on citizenship and migration does not correspond to expectations based on how the categories of ‘citizen’ and ‘foreigner’ would normally shape fundamental rights protection.[121] While Iglesias Sánchez does not contest the different normative background identified by Thym, she shows that, in some respects, EU migration policy goes further than free movement law as regards the application of EU fundamental rights.[122] Without contesting the differentiation between free movement and migration regulation under primary and secondary law, I suggest that social rights limitations should be more rigorously reviewed in light of Article 34 of the Charter for all categories of migrants, especially the EU ones. Given the extensive use of the Charter to review the limitations imposed to social rights under secondary law for non-EU migrants, the constitutional architecture of EU law demands an equally extensive use of the Charter also for EU migrants.

4.2.  Financial solidarity dictating the outer limits to social rights for all migrants

At the same time however, the extension of judicial review in light of the Charter is the maximum that can be demanded for EU migrants. This is because the very basis of their rights is based on considerations of financial solidarity between the Member States.[123] By engaging in a common project of growth, Member States have accepted that they may have to incur the costs for an EU migrant because of the economic benefits they collectively derive from the EU project. After all, a host state’s citizens can migrate to another Member State, too, and will enjoy benefits there. This case for financial solidarity, no matter how strong, has not gone very far since the enlargement of the EU in the new millennium. If anything, the diverse nature of Member States’ economies set the basis for limiting social rights of EU migrants to ensure that the strong welfare states of the West and North would not have to carry the burden for the migrants from the South and East. Regardless of whether this claim had any factual basis, this narrative redefined the degree to which EU states are ready to recognize a full extension of social rights even to the nationals of Member States that are already part of the collective project of growth.[124]

Linking rights to broader questions of justice, Somek has suggested that in a transnational market setting, the distribution of resources becomes irrelevant, and the relative treatment of individuals and equal opportunities are afforded central place.[125] According to Somek, in the EU, the only distributive mechanism of relevance is the market, and it has a justice-disabling effect.[126] Looking at the market to correct inequalities, the concern is not on redistribution, but rather on equal access to opportunities.[127] In the EU context, questions of justice become questions of rights, with an emphasis specifically on non-discrimination.[128] In such a set-up, human rights do not need to be followed by strong legislative measures and can be promoted judicially by courts. The debate shifts from questions of justice to questions of inclusion in the form of ‘the elimination of arbitrary factors that prevent voluntary access by those who meet non-arbitrary conditions’.[129]

The emphasis on inclusion in the form of rights attribution, as suggested by Somek, is apparent in the development of EU migration law. This development has been based on the attribution of mobility and equal treatment rights to people as a means to achieve social progress. Given this, the inclusion of non-EU migrants who do not negatively impact growth (by being self-sufficient and not having recourse to the social assistance system of Member States) could be demanded under EU law. This would mean revisiting the remaining limitations of social rights prescribed in the Long-term residents Directive. This is partly what the Commission aimed for in the proposal for recasting the Long-term residents Directive which suggested the removal of the possibility to limit equal access to social assistance to core benefits.[130] As the negotiations for the recast have ceased, it seems unlikely that the currently permissible limitations to equal treatment will be removed in the near future.

At the same time, taking the economic function of social rights at face value would demand the attribution of the same social rights to all non-EU migrants as long as they are engaging in work. In this regard, the current patchwork framework and the differentiation it introduces to accepted limitations is not based on the contribution someone makes by their work, but rather on how urgently a migrant’s contribution is needed for the EU economy.[131] The model on which EU law furnishes rights to migrants is based on inclusion in the form of absence of discrimination on grounds that cannot be justified. The attribution of more rights to migrants who are more needed is both arbitrary and out of line with a long-term planning around migration law. We might know what type of migrants the EU economy needs today, but we cannot predict what type of migrants will be most needed in the future.

At the same time, in view of the economic basis underlying the attribution of social rights, an extension of social rights for non-EU migrants in a way comparable to those of EU migrants (thus including economically inactive non-EU migrants who are not yet long-term residents) is harder to justify. That is because the states of origin of such migrants are not directly involved in the EU project of growth. In past bilateral agreements between the EU and third countries, economic or trade cooperation dictated the attribution of social rights to migrants from the associated states.[132] However, after the setting in place of an autonomous EU migration policy that attributes rights to non-EU migrants based on their residence, such clauses have disappeared. One might also say that they are no longer needed. How would such an extension of social rights be justified? In this case, it could only take place by a commitment to advancing the social objectives of the EU project in line with the approach followed by the Court in the case law, and with a stronger emphasis on human rights as a tool not only for progress, but also for integration of the migrant in the national community under a long-term view of the place migrants will occupy in future EU societies.

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European Papers, Vol. 10, 2025, No 1, pp. 163-190
ISSN 2499-8249 - doi: 10.15166/2499-8249/829

* Postdoctoral researcher in EU Law, Faculty of Law, Lund University, alezini.loxa@jur.lu.se.