FACULTY OF LAW The European dimension to welfare rights advice Robin C A White NAWRA: 3 December 2004

Overview General remarks Human rights law –the use of Article 14 ECHR European Union Law –the impact of citizenship of the European Union

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Article 14 ECHR Prohibition of discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status

Article 14 and social security Benefits for widows but not widowers –The Hooper litigation and R(G) 2/04 Uprating pensions for those resident overseas –The Carson and Reynolds litigation Funerals abroad –CIS/1870/2003 contrast CIS/3280/2001

The Michalak framework Do the facts fall within the ambit of one or more of the substantive provisions? If so, was there a difference of treatment as respects that right between the complainant and the chosen comparator Was the chosen comparator in an analogous situation to the complainant’s situation? If so, did the difference in treatment have an objective and reasonable justification? Wandsworth LBC v Michalak, [2003] 1 WLR 617

The ambit of the Convention The Strasbourg approach –no violation of substantive right required –substantive rights broadly construed –probably covers indirect discrimination The United Kingdom approach –difficult to decide –stress on direct link to freedoms or rights in the substantive article

Choosing your comparator

What is status? The need for a personal characteristic? Isn’t it just about how easy it will be to justify any differential treatment?

Objective justification What is the aim of the difference in treatment? Is it legitimate? Is the differential treatment the least that will meet the legitimate aim identified?

Time for a new approach Are Convention rights engaged? Who is the comparator? Are the circumstances of the claimant and the comparator so similar as to require a positive justification for the less favourable treatment of the claimant?

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Three routes to EU entitlement Social and tax advantages for workers under Article 7(2) of Regulation 1612/68 Entitlement under the co-ordination regulation: Regulation 1408/71 –winter fuel payments Equal treatment of citizens of the Union

Citizenship of the Union Arts EC All nationals of the Member States are citizens of the Union Article 18 gives rise to direct effect: the Baumbast case A ‘fundamental status’

The case law Case C-85/96 Martínez Sala, [1988] ECR I Case C-184/99 Grzelczyk, [2001] ECR I-6193 Case C-138/02 Collins, Judgment of 23 March 2004 Case C-456/02 Trojani, Judgment of 7 September 2004 Case C-209/03 Bidar, Advocate General’s Opinion of 11 November 2004

The case of A8 nationals Czech Republic Estonia Hungary Latvia Lithuania Poland Slovakia Slovenia Enlargement and the transitional periods –3+2+3 The new habitual residence test The impact of citizenship

A reference White, R, ‘Residence, Benefit Entitlement and Community Law (2005) 12 Journal of Social Security 10-25