European Court Still in Charge of Our Social Security and Borders

Commenting on the European Court’s decision on social security, Iain Duncan Smith, Secretary of State in the Department for Work and Pensions at the time the challenge was brought, said:

‘It’s absurd that we have to to run every nut and bolt of domestic policy past Luxembourg, and then engage in lengthy and expensive court battles if they decide they don’t like what our democratically elected Government is doing.

‘As well as the cost to taxpayers of fighting these lengthy drawn out cases, it’s clearly an illegitimate challenge to our sovereignty. Although David Cameron didn’t want to admit it, this case and others like it are proof positive that the unelected European Court of Justice is now supreme above our elected Parliament. They decide the rules and the only way to prevent this kind of intervention in future is to Vote Leave on 23 June.’

Commenting, Anne-Marie Trevelyan said:

‘The Prime Minister made a solemn promise to the British people in our manifesto which, sadly, the EU makes impossible to honour. EU migrants will still be able to receive child benefit and even export it abroad. Today’s judgment does not change that. Rather than admitting that the EU prevents the UK from controlling our welfare system, our borders and our economy, promises have instead become aspirations; commitments have become ambitions.

‘We have consistently been defeated and sidelined in the meddling European courts. Judgments have made the cost of living more expensive, undermined our borders and put UK security at risk. If we want to take back control from the EU courts we have to Vote Leave on 23 June.’

The European Court has today handed down its judgement in Commission v United Kingdom, Case C-308/14.

• David Cameron has failed to meet his manifesto promises on child benefit because of EU law.

• After this judgement, all EU citizens will still retain the right to come to the UK, despite Cameron’s promises.

• The Commission has pursued this costly action despite a clear finding four years ago by the UK Supreme Court that the ‘right to reside’ test was lawful.

• The judgement is of little assistance to the UK, because it cannot systematically check whether EU citizens are lawfully resident in the UK, as the Advocate General and the Court have confirmed.

• Even taking into account today’s ‘victory’, the Government still loses over three-quarters of cases in the European Court. It has increased the price of beer, undermined the UK’s border controls and weakened our security.

• It appears this case has been scheduled for immediately before the referendum in order to deliver a ‘victory’ for the Government just before the poll.

David Cameron has failed to meet his manifesto promises on child benefit because of EU law.

The Conservative Manifesto promised: ‘If an EU migrant’s child is living abroad, then they should receive no child benefit or child tax credit, no matter how long they have worked in the UK and no matter how much tax they have paid’.

David Cameron’s renegotiation will still allow the export of child benefit. The deal says new EU legislation could give member states ‘an option to index such benefits to the conditions of the Member State where the child resides’. This also only applies to new claimants and makes clear the export of child benefit will continue.

Cameron also promised that EU migrants would not be able to claim child benefit during their first four years in the UK. The 2015 Conservative Manifesto stated: ‘We will insist that EU migrants who want to claim tax credits and child benefit must live here and contribute to our country for a minimum of four years’.

Since child benefit, unlike certain tax credits, is not a ‘non-contributory in-work benefit’, it would appear the emergency brake will not apply to it, meaning the Conservative Manifesto has likely been broken.

The Government does not claim that the ’emergency brake’ will apply to child benefit. The Commercial Secretary to the Treasury, Lord O’Neill of Gatley, has conceded that: ‘Details of the proposals for restricting in-work benefits for EU nationals will be subject to further negotiation and we cannot speculate on these’. The Minister was unable even to state which benefits the ’emergency brake’ might apply to.

After this judgement, all EU citizens will still retain the right to come to the UK, despite Cameron’s promises.

The EU Treaties provides that: ‘Every citizen of the Union has the right to move and reside freely within the territory of the Member States’. This is entirely unchanged, either by Cameron’s renegotiation or by the judgement today.

In his 2014 conference speech, Cameron said: ‘Numbers that have increased faster than we in this country wanted at a level that was too much for our communities, for our labour markets. All of this has to change – and it will be at the very heart of my renegotiation strategy for Europe. Britain, I know you want this sorted so I will go to Brussels, I will not take no for an answer and when it comes to free movement – I will get what Britain needs’.

The Commission has pursued this costly action despite a clear finding four years ago by the UK Supreme Court that the ‘right to reside’ test was lawful at great expense to the taxpayer.

In March 2011, the UK Supreme Court considered almost identical arguments in the context of eligibility for state pension credit. By a 4-1 majority, the Supreme Court held that the test was lawful.

The Government claims that: ‘Departments do not quantify the cost of time spent by government officials throughout the infractions process’.

The judgement is of little assistance to the UK, because it cannot systematically check whether EU citizens are lawfully resident in the UK, as the Advocate General confirmed.

EU law forbids systematic verification of whether EU citizens are lawfully resident in the UK. It states that ‘this verification shall not be carried out systematically’.

Advocate General Pedro Cruz Villalón stated clearly that EU law ‘precludes national legislation from adopting any approach that might be tantamount to presuming that, after the first three months of residence and before he has acquired a permanent right of residence, [an EU] citizen is unlawfully present in that territory, so that it would systematically be for the person in question to prove that this is not the case. As a matter of principle, the opposite presumption should, in fact, be made’.

The Court found the right to reside test was lawful precisely because ‘this verification is not carried out systematically by the UK authorities for each claim’.

Even taking into account today’s ‘victory’, the Government still loses over three-quarters of cases in the European Court. It has increased the price of beer, undermined the UK’s border controls and weakened our security.

The UK loses three-quarters of cases in the European Court. Even taking into account today’s ‘victory’, the UK loses more than three quarters of cases in the European Court. Since the UK joined the EU in 1973, it has lost 101 out of 132 cases before the European Court in which it has been a party, a failure rate of 76.5%. Since David Cameron became Prime Minister in May 2010, the UK has been defeated on 16 occasions: a failure rate of 76.2%.

The European Court has increased the price of beer. On 12 July 1981, the ECJ ruled that the UK’s low duty on beer ‘afford[ed] protection to domestic beer production’ and was therefore illegal under EU law. In his 1984 budget statement, the Chancellor of the Exchequer, Nigel Lawson, said ‘we lost; and I am now implementing the judgement handed down by the court last year. Accordingly, I propose to increase the duty on beer by the minimum amount needed to comply with the judgement and maintain revenue: 2p on a typical pint of beer’.

The UK’s border controls are under constant attack from the European Court of Justice. In December 2014, the European Court said that the UK cannot require family members of EU citizens from other EU member states to have a permit issued by UK authorities. This is despite the fact that a High Court Judge had found permits from other EU countries to be systematically forged, stating ‘Systemic abuse of rights and fraud calls for systemic measures’. The European Court’s rulings make it easier for terrorists and criminals to enter the UK using forged documents.

The 2014 judgement of the European Court also means that the UK cannot require persons purporting to be EU citizens to have a document issued by the British Government which attests to that status ‘in pursuit of an objective of general prevention’ of terrorism and serious crime. This constitutes a threat to the UK’s security, in light of the fact that ‘eight Schengen countries were on the list of the top 10 nations reporting stolen or lost passports in Interpol’s databases’, according to the former Secretary General of Interpol, Ronald K Noble. The Italian ID card, for example, is made of laminated card. In April 2016, Frontex noted that: ‘The number of persons aiming to get to the UK with fraudulent document significantly increased (+70%) compared to 2014. This trend is mostly attributable to the increasing number of Albanian nationals often misusing Italian and Greek ID cards followed by Ukrainian nationals abusing authentic Polish ID cards’.

It appears this case has been scheduled for immediately before the referendum in order to deliver a ‘victory’ for the Government just before the referendum.

The Commission brought its action on 27 June 2014.

Advocate General Pedro Cruz Villalón delivered his opinion on 6 October 2015, in the middle of the Conservative Party conference.

This case has taken 23 months and 18 days from the launch of proceedings until judgement. The average time taken for a ‘direct action’ (such as where the Commission sues a member state) in 2015 was 17.6 months. This means this case has taken six months longer than usual to decide.