Tuesday 14. July 2020
#172 - June 2014


Sorry: you will have to leave because you are an “unreasonable burden”


The right to reside on the territory of a host EU country is not unconditional and any EU citizen can be expelled if he or she fails to meet its residency requirements or constitutes a heavy burden on its welfare system.

The debate on freedom of movement within the EU has increased since the Bulgarian and Romanian citizens have been able to exercise that right since January this year. Recent media information has increased the concern of European citizens, perceiving that the revered freedom of movement is full of legal limitations and restrictions that are being activated by some Member States.


For example, Belgium in 2013 expelled 2,712 people from different countries of the Union on the grounds that they have become an unreasonable burden on its social protection system; and not only Bulgarians and Romanians, but also Spanish, Dutch and Italian citizens. Furthermore, the German government has set up a commission to study the issue and seems to be walking the same path. When presenting the report of the commission, Interior Minister Thomas de Maizière argued that in some German regions there had been a worsening of social problems and an increasing burden on schooling, housing and healthcare due to EU immigrants. A question is coming more and more frequently to the minds of ordinary EU citizens: can a host EU Member State put “obstacles” on their freedom to move and reside? The immediate legal answer is: certainly yes, if they want to reside more than 3 months in that country.


Free movement: a legal (and limited) right

Directive 2004/38/EC (“Freedom of movement Directive”) provides in Article 7 the possibility to restrict the right to reside in a host EU country, such that after three month’s stay, there are clear conditions depending on the status of the EU citizen (worker, student, etc.). In the case of workers (including temporary ones) and self-employed persons, they have the right to reside without any conditions other than being a worker or self-employed person (apart from some administrative formalities); that status is also retained if they are: a) unable to work as the result of an illness or accident; b) in duly recorded involuntarily unemployment and have registered as job-seekers with the relevant employment office; or c) are following training. Moreover, workers and self-employed persons cannot be expelled for the sole reason that they receive social assistance benefits.


On the other hand, economically inactive persons (e.g. unemployed, retired, etc.) must have sufficient resources so as not to become a burden on the host EU country’s welfare system during their period of residence and to have comprehensive health insurance cover. The right to reside may be terminated once the EU citizen becomes an “unreasonable burden” on the welfare system (a concept subject to diverse interpretations), and in such a case, the authorities of the EU host country may proceed to her or his expulsion. Nevertheless, the fact that an economically inactive EU citizen applies to the host Member State for social support when he or she is in need, is not per-se a legal ground for the termination of that right to reside, and the application must be examined in accordance with his or her circumstances, the duration of the residence and the amount of aid granted.


In extreme cases, where an EU citizen becomes socially and economically vulnerable (for example, homeless) in another EU Member State, the EU has put in place the Fund for European Aid to the Most Deprived (adopted last 10 March 2014). Over €3.8 billion will be allocated to the Fund over the 2014-2020 period, and Member States will be responsible for paying 15% of the costs of their national programmes, with the remaining 85% coming from the Fund. This new instrument will also help Member States to avoid EU citizens from being expelled when they have become socially and economically weak for some time in their host EU country.


Finally, the right of residence in another EU Member State is not a “single use” right. Even in the case where an EU citizen has been expelled, the host EU country cannot impose a ban on re-entry and he or she can return back at any moment and exercise the right to reside if the required legal conditions are again met.


It is clear that the concept of European citizenship has not been completed. It is currently a partial concept, linked to employment status (in the broadest sense). It is perhaps for this reason that there have been too confusing and overly high expectations of EU citizens concerning the right of residence when the reality is that it has a restrictive legal regime, especially in situations of labour inactivity. There is a large freedom of movement of EU citizens when they work, but freedom is strongly limited when they are economically inactive.


Now that the limits of the right of residence are suffered directly by citizens who have been expelled and these limitations are now known to the public in Europe, there is the risk of populist misuse of this situation. It would have been helpful for everyone to get accurate information from the beginning concerning the reality of the law, including its current boundaries, in order to avoid anti-European frustrations. It is the responsibility of public authorities at all levels to prevent a misunderstanding of the benefits of the EU that could easily lead to an unwanted return to the past.


José Luis Bazán


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