The UK government denies that the residence test is discriminatory, on the basis that requiring a habitual right of residence is a proportionate measure for ensuring that benefits are paid only “to persons sufficiently integrated in the United Kingdom”.
The UK government’s position is that those who are economically inactive should not become a burden on the welfare system “unless they have a minimum degree of connection” with the country.
In his findings, the Advocate General, Pedro Cruz Villalón, said that “the UK legislation does not impose any condition additional to that of habitual residence”. He added: “The right of EU citizens to move and reside freely within the territory of the member states is subject to the limitations and conditions laid down in EU law.”
The practice of discriminating against EU migrants in the UK by subjecting them to a residence test for benefit payments is legal, according to a preliminary European court ruling. The opinion put forward by the advocate general at the European court of justice in Luxembourg represents a significant step towards victory for the UK in its legal action with the European commission over the issue. The full court normally follows its advocates’ preliminary opinions. If the ruling is confirmed, the judgment will force the commission to abandon its claim. The action was triggered by complaints from citizens of other EU states who objected to the British authorities refusing them social benefits on the grounds that they did not have a right of residence.