Over the last few months, a number of Member States have raised the issue concerning EU citizens who have exercised their right to free movement and found themselves destitute in the host country. Some Member States have expelled, or threatened to expel, such EU citizens without taking into account the procedural safeguards acknowledged by the EU acquis on free movement
Free movement is one of the foundations of the EU. However, despite being highly regulated and building on extensive case-law, some Member States, especially since the beginning of the economic downturn, want to grant the rights stemming from the EU acquis on free movement only to economically active persons and consider destitute European citizens as a burden of which countries of origin should take care.
In 2010, the UK Border Agency introduced a pilot scheme to deport Eastern Europeans found sleeping in parts of London, Oxford, Reading and Peterborough. This scheme enables the UK government to deport people forcibly if they have been in the UK for longer than three months and have no prospect of working or studying. The agency issues individuals with written notices, informing them they must appear at a local police station for an interview to determine whether they have the right to remain in the country. One month into the scheme, more than 200 people had been considered under the pilot, roughly 100 had been served with removal notices and 13 people deported.
On the night between 7th and 8th December 2010 the Danish police conducted a targeted arrest of 69 homeless people accommodated in a privately funded shelter for homeless people, specialised in providing assistance to non-Danish citizens. Following this raid, 47 persons were held back for approximately 2 weeks while their cases were under review. 30 of them were EU citizens and all were repatriated, most of them on the grounds that they were not self-sufficient. This fact was also the subject of a written question asked by Swedish MEP Cecilia Wikström to the European Commission.
The Irish Government flew 548 destitute EU citizens back to their country of origin in 2010 as unemployment among migrant workers remained at very high levels due to the economic downturn. The number of EU nationals flown home under the State’s “Return Flights for Destitute EU Nationals” scheme in 2004 was 149. Returns peaked at 757 in 2008 before falling to 548 in 2010. Most of the EU migrants sent back under the repatriation scheme were refused social welfare benefits in the host country and were considered ineligible to access long-term homeless accommodation.
The Dutch Government has recently proposed to amend the directive 2004/38 on free movement asking for the establishment of a stronger link between the possession of an income and the residence rights. Moreover, Marnix Norder, The Hague city councillor publicly warned of a “tsunami” of Eastern Europeans and declared that unemployed EU citizens must return to their country of origin.
Ivo Belet, Belgian MEP, has also recently raised this issue through a question for written answer declaring: “A number of Member States, including Belgium, are facing a growing number of immigrants who are citizens of East European Member States (…) Host member States, and in particular local authorities, cannot cope with the influx”. Mr. Belet asked the Commission whether it would be possible to have a coordinated approach to this problem, to enable better procedures for verifying residence conditions and to define “unreasonable burden on the social assistance system”.
European Union is still silent on this issue. Commissioner Reding replied to Ms Wikström but in her answer she did not mention the test of proportionality provided by art. 28 of the directive 2004/38, according to which three sets of criteria have to be taken into account in order to determine whether a person has become an unreasonable burden (duration, personal situation and amount of aid granted). Nor did Ms Reding take into account the fact that the homeless expelled by Denmark after the raid last December were accommodated in a private funded shelter and subsequently were not a burden for the social assistance system.
Will this issue be solved through the development of the interpretation of European citizenship? Will EU set clearer rules as requested by a recent FEANTSA press release? What is sure is the unlawfulness of arbitrary expulsions which do not respect the procedural safeguards as set by the directive 2004/38: art 14 – “an expulsion measure shall not be the automatic consequence of a Union citizen’s recourse to the social assistance system of the host Member State”; art. 28 – “before taking an expulsion decision, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin”.