ECJ Advocate General backs UK government’s social benefits test for migrants

An Advocate General of the European Court of Justice has backed the UK government in a legal case against the European Commission over the administration of a “right to reside” test for EU migrants.

The Commission argued the test, which came into effect in 2004, discriminates against EU migrants by providing an extra hurdle for some social benefits.

However, Advocate General Pedro Cruz Villalón said unequal treatment was justified by a need to safeguard the state budget.

It is now for the ECJ to decide the case – and it will likely follow the Advocate General’s opinion.

Welcoming the opinion, Anthea McIntyre, Conservative spokesperson on employment in the European Parliament, said: “This is very welcome news for Britain’s drive to combat benefits tourism.

“If adopted by the court it bodes very well for David Cameron’s renegotiation programme.”

The right to reside test is administered in addition to the “habitual residence” test which is already compliant with EU law.

That test requires migrants to prove they have a genuine connection with the UK as well as real job prospects.

If a migrant passes the right to reside test they can claim council tax benefit, housing benefit, child benefit and child tax credit.

However, one of the most controversial issues has been child support payments being made to migrants whose children stay in their original countries.

Advocate General Villalón said UK legislation “does not impose any condition additional to that of habitual residence, but rather examines the lawfulness of that residence under EU law, in connection with the grant of specific social benefits”, adding checks on applicants for particular benefits were proportionate.