The Waiting Game – Migrants may face 4 year wait for benefits

26 Jan, 2016

It was recently announced that the UK government is calling for migrants to have to wait four years before they can claim tax credits, in a bid to reduce immigration. To find out how feasible this is, and what impact it would have on Immigration Law, Lawyer Monthly speaks to Katie Harris, Solicitor at Mackrell Turner Garrett.

 

Q: What are your initial reactions to the Government’s announcement?

 

David Cameron formally set out the government’s objective to restrict EU migrants’ access to in-work benefits, such as tax credits, in a recent letter to the president of the European Council, Donald Tusk.

 

He stated that although the UK believes in an open economy, it is finding it increasingly difficult to cope with all the pressures that free movement can bring – on our schools, our hospitals and our public services.

 

He notes that with our net migration running at over 300,000 a year, immigration policy must be changed to alleviate this pressure on the UK.

 

David Cameron insists that the UK be allowed to restrict in-work benefits for EU workers until they have lived in the UK for 4 years.

 

Whilst the Prime Minister may be feeling the pressure to curb EU immigration, implementation of this particular proposed policy is problematic for a number of reasons explained below.

 

Q: Do you think the law will be passed? How quickly?

 

The major stumbling block with this type of policy is that its implementation would cause EU migrants to be treated less favourably than UK citizens.  Discriminating against EU workers, whether deliberate or inadvertently, goes against one of the EU’s founding principles – the freedom to live and work anywhere in the EU.

 

Applying a blanket policy to EU migrants alone is likely to be challenged in the courts by the European Commission under EU anti-discriminatory laws.

 

Indeed, the European Commission has already taken the UK Government to court over alleged breaches of EU anti-discrimination laws when Labour introduced the right to reside test back in 2004; a test that led to citizens of other EU states being refused social benefits on the grounds that they did not have a right of residence in the UK.

 

Such cases, which are ultimately heard in the European Court of Justice – the EU’s top court – can take years to conclude.

 

The Government will have to be careful and precise when implementing any current proposed policy to avoid such a challenge and to avoid a lengthy and expensive battle against the European Commission.

 

Q: If it is passed, how effective do you think it will be in cutting immigration to the UK?

 

The policy is based on the assumption that the attractiveness of the UK as a country to live and work is influenced in some degree by the attractiveness of its welfare system.   If the policy is intended to have a dramatic effect on net migration, it assumes that there many migrants coming to the UK that would be persuaded not to come to the UK if it were more difficult to claim benefits.

 

How influential and effective this policy will be is therefore ultimately dependant on the factual accuracy of that assumption.

 

The attractiveness of the UK is of course determined by other influential factors which are responsible for driving the influx of migrants to the UK.  The UK’s economic recovery makes it a destination for many EU migrants seeking work, with unemployment rates high in their native country. It is an attractive place for people to study, having some of the best universities in the world.  The UK will of course be more attractive for those that speak English, which is a typically universal language.  Ultimately becoming a UK citizen allows access to a British passport; one of the most powerful in the world in terms of unrestricted travel around the globe.

 

Accordingly, although curbing any potential for welfare shopping is favourable, it is unlikely to be the UK’s benefit system (which is arguably not actually overly generous compared with other EU countries) that attracts the majority of migrants to the UK and for that reason there are doubts over the effectiveness of such a policy in dramatically reducing net migration.

 

Q: What other impact will this move have? Positives and negatives?

 

It is also likely that the policy will have an impact on the British people.  The first reason for this is that, in order to circumvent the EU anti-discrimination laws, it is likely that the Government would also have to apply restrictions to UK citizens.  One option that has been canvased is to implement a 4 year residency rule for Britons, meaning that even if they had lived in the UK all their lives, from their 18th birthday they would be ineligible for the benefits until they reach 22 years old.

 

It may also impact on British people who have a foreign partner/spouse or parent.  Potentially, those families may be classed as “non-UK families” and be subject to the restrictions.

 

Positively, the policy may at least be seen by some – particularly those in the press – as an attempt by the Government to negotiate a better position for the UK within the EU.  However, in reality the effect on net migration may actually be negligible.  Further, a policy that prevents EU migrants from drawing from a welfare system that they are actively contributing to, is questionable.

 

Q: Do you feel there are any other ways in which immigration to the UK could be reduced?

 

Other options to reduce net migration to the UK include cracking down on those who obtain entry to the UK illegally, and implementing tougher and longer re-entry bans for those that attempt to enter the UK dishonestly. Longer bans, for example, should be given to those people who collude in sham marriages or those who abuse student visas.  Stronger powers prevent criminals from entering the UK and to stop them coming back would also help.

 

Q: Do you agree that immigration does need to be cut? Please explain.

 

Net migration needs to be controlled at a level that is sustainable for the UK.  However, with the UK economy on the rise, more and more people will want to come to the UK.  The attractiveness of the welfare system is a micro “pull factor” for migrants.  The larger pull factor will ultimately be that the UK is a great place to live.

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