The deeply misguided ‘emergency brake’

Border

The headline act of the proposed deal on British membership of the EU is the ‘emergency brake’. This will allow member states to restrict access to in-work benefits for nationals of other EU countries where the inflow of workers is of an ‘exceptional magnitude over an extended period of time’.

Comment has focused on benefit entitlements being phased in within the four year period and that member states must seek the authorisation of the council before applying this brake rather than having an automatic entitlement to it.

The biggest issue, however, is likely to be the link drawn between benefits and migration flows. David Cameron has often talked of the former acting as a pull for the latter. The draft proposals reinforce and twist this narrative. The relationship acts now as a trigger for the activation of the brake. It is only a partial trigger, however.

For the brake to be pulled, the inflow must lead to either essential aspects of the social security system being affected, serious difficulties which are liable to persist in the employment market or excessive pressure on public services. In addition, the relationship also acts to release the brake. If migration either falls or does not lead to any of these effects, presumably, the brake can no longer be lawfully applied.

This relationship is deeply misguided. And, if intended to settle the United Kingdom’s place within the European Union, it is likely to end in tears.

First, the extent to which welfare provision acts as a draw for migration is arguable. In other regional arrangements around the world, widespread migration, both regular and irregular, takes place, notwithstanding the presence of only scant welfare provision: ASEAN nationals to Malaysia and Singapore, Mexican citizens to the United States and Mercosur-(South America’s trading bloc) citizens to Argentina. However, we need not look abroad to see this.

In 2004-2005, for example, a variety of practical and institutional reasons, it was difficult for citizens from Central and Eastern Europe to claim benefits in the UK. In those two years, 194 successful claims were made for income support, job seekers’ allowance or pension credits whilst 330,855 citizens were still registered as arriving from these states to work.

Secondly, making this relationship a legal precondition for action renders any such action a hostage to fortune. It will have to be shown that destabilisation of social security systems, public services or labour markets occur because of EU economic migration.

Increases in the population can, of course, put pressure on public services and labour markets, but net migration of EU citizens in the year to June 2015 was 180,000: an increase of less than a third of one percent in the population. Is it possible to argue before a court that this has had such destabilising effects particularly as net migration from non EU states is higher? To be sure, the commission has certified the UK already meets the test, but it has not disclosed its reasoning or figures. These will be put under the microscope if there is a legal challenge.

Thirdly, few opposing current levels of EU migration make the melodramatic claims that it is threatening essential aspects of the British social security system, creating persistent and serious difficulties in British labour markets or placing excessive pressure on its public services. Claims tend to be more nuanced than that. Consequently, a justification for restrictions is being made which cuts across and is largely deaf to the claims from both sides of the argument.

Stephen Booth, co-director at Open Europe, and I wrote a paper making the case for restrictions on benefits which is often associated with the genesis of the government’s proposals on this. We argued it could be done through secondary legislation – something the government and EU Institutions now agree on. The premise of the paper, at least as I saw it, is a different one from that of the government. It was about the revitalisation of national citizenship and EU citizenship. Its central concern was that both were being impoverished by insufficient care being paid to the relationship between the two.

Aspiration and integration 

EU citizenship does not establish some pact of solidarity between citizens from the different member states. Otherwise, we would transfer benefits to the most destitute in the poorest member states. Its centre of gravity is about rewarding mobility. More particularly, as my colleague Floris de Witte, assistant professor at the LSE, notes, it gives us the possibility to aspire more broadly than before. Mobility can secure us love, bounty, friendship and dignity where none was previously available

However, it offers little to the immobile. These get only what is left for them by the mobile. These may be significant, nothing or – as is the case with the emigrant state suffering skills shortages or the host town suffering public housing shortages – less than nothing.

In a migratory world, national citizenship provides a source of dignity and status to the immobile by indicating that they are particularly special because they have not moved. If I move to Italy for a year, I lose most of my British citizenship entitlements: place on the housing list, possibility of tax credits or universal credit, etc.

This failure to develop a narrative of national citizenship, which must be respected by the union is particularly tarnished in the case of EU citizenship. The latter grants the central benefits of national citizenship, to those who have done little more than hang their hat here by worked for a few hours for a couple of weeks. It gives the appearance of allowing free riding and rewarding non-engagement by the mobile: memes which have dominated the debate within the United Kingdom.

We sought to cut the Gordian knot by proposing that other EU citizens only be granted the central benefits of national citizenship, entitlements very different from human rights, after three years of residence. By then, they will have generated benefits for the host society that entitles them to be regarded as correspondingly special. I talk here, particularly, of the friendships, perspectives, commitments and narratives that someone brings when one calls a place a home over time, rather than the more material ones of taxes and labour.

On this view, the debate on benefits could have provided a happier basis for EU citizenship as aspiration followed by recognition of social integration. More tantalisingly, it could also have provided a window for reflection about what national citizenship is about. The latter’s attraction is its setting out of provision that acts as a daily reminder of the worth of fellow citizens and of the country: be it proper housing, a decent wage, social assistance that allows dignity for those without work. The debate on benefits allowed the possibility to think in very practical terms as to the measure of what these might be and as they are only available to British citizens and those who call the United Kingdom their home, the quality of the mutual respect we hold for each other.

It would have been a debate, in short, about social integration and mutual recognition of the worth of the mobile and the immobile.

Instead, the measure has been cast by the government as something to keep foreigners out. Its tone will alienate those who rather like the presence of foreigners within the UK. Its regulatory ineffectiveness will displease those who would rather they were not here.

This piece was written by Damian Chalmers, senior fellow of the UK in a Changing Europe and Professor of EU Law, London School of Economics and Political Science.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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