Legal Perspectives on Social Assistance Benefits and Residency Rights for EU Citizens

Sophie’s temporary social assistance benefit

The Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States is applicable in this situation. especially in the context of law dissertation help. It relates to the right of EU citizens and their family members to reside as well as the issue of social benefits as linked to this right. Right to social benefits may be treated as a condition to have the right to legal residence whereas only applicants having a right to reside may be entitled to equal treatment for access to social benefits. Regulation 492/2011 is also applicable here, Article 7(2) of which provides for parity between workers for social and tax advantages. This right was held to be essential to avoid obstruction of free movement of workers within EU states in Terhoeve v Inspector van de Belastingdienst Particulieren/Ondernemingen Buitenland, (1999) C-18/95. Temporary social assistance benefit can be covered by this as per the decision of the court in Hoekstra & Case 22/84, Case 75/63. The national jurisprudence developed in Germany indicates that EU citizen, even without work, are entitled to social benefits for 6 months and temporary assistance can be given for a period of 1 month. Meanwhile the European Court of Justice has held that the EU citizens living in Germany are only able to collect Hartz IV form of benefits that are in the nature of unemployment benefit of €399 a month and can be received only for a period of six months. EU citizens can only claim benefits like social assistance for equal treatment with nationals if their residence in the territory complies with the conditions of Directive 2004/38/EC as per Jobcenter Berlin Neukölln v Nazifa, Sonita, Valentina and Valentino Alimanovic, Case C-67/14. In the same case, the court has held that for the purposes of granting assistance in such situations, an EU citizen retains the status of worker even after losing their job for a period of six months and can rely on principle of equal treatment and is entitled to social assistance as per the provisions of Article 7 (3) of the Directive 2004/38/EC. This means that the person will be categorised as a worker if they are recorded involuntary unemployment after having been employed for more than one year. This is applicable to the case of Sophie.

In this case, rejection of temporary social assistance benefit because she is not a worker is incorrect considering the provisions of Article 7 (3) of the Directive 2004/38/EC and the jurisprudence discussed above.

Clara’s Expulsion Order

Under the EU law, when an EU national is working abroad in another EU country, their family members have the right to reside and work in that country, regardless of their nationality and their children have the right to be educated in that country. This is provided under the Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. As per the Directive, beneficiaries may include family members and common law partners under Article 3(2)(b). It is also relevant that after their divorce, they share the custody of their daughter Mia and that Clara has decided to stay at home so that their daughter is looked after and Sophie is financially supporting them. Article 13 of the Directive specifically relates to the right of residence in the event of divorce. A divorce from the partner does not mean that the EU spouse loses their right of residence in that country. For an EU citizen, a divorce from their partner does not affect their right to stay in the host EU country, of the conditions for such stay are met by the divorced partner in their own right. Article 13 provides that such partners shall not lose right of residence if the marriage has lasted at least three years, including one year in the host Member State, or where the partner has custody of the any children. Therefore, divorce in itself cannot lead to the loss of residence. However, the partner may be required to show that they are workers or self-employed persons or have sufficient resources for themselves and their family members not to become a burden on the social assistance system. If the partner is not a student or a worker, then they have to prove that they have comprehensive sickness insurance cover and sufficient resources to enable their stay in the host nation. The right of residence cannot be claimed if the individual claiming it cannot establish that they will not be a burden on the social assistance system. However, if Sophie can get temporary assistance, then she can support Clara and Mia. Under Article 7 (3) of the Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, if a Union citizen is no longer a worker or self-employed person, they shall still retain the status of worker or self-employed if they are recorded involuntary unemployment after having been employed for more than one year. In this case, Sophie has worked for more than two years with the law firm before losing her job. Although, she can no longer afford to support herself or her family, she is still considered to be a worker for the purpose of residency rights under Article 7 (1). As her beneficiaries, Clara and Mia also have the right of residence.

Clara’s expulsion decision from the German government asking her to leave the country because she is divorced from her EU-national wife and thus has no right to residence is therefore not appropriate and can be challenged by Clara.

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