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But a deal has not yet been reached and there are some areas that are likely to be fiercely contested by other EU member states in the coming weeks and still appear to face legal hurdles.

Areas where the UK is likely to achieve reform:

Indexing the payment of child benefit to EU citizens with children living in other EU countries according to the standard of living in the country where the child resides. Here the Prime Minister is likely to find support in other EU member states, as there are signs that the Commission was planning a similar measure already as part of its labour mobility package.
Clarification of the rules on restrictions to free movement on public security grounds. The Prime Minister is unlikely to find much disagreement on this clarification, as it does not appear to significantly diverge from current practice.

Areas where more work is needed:

The emergency brake on in-work benefits. While the European Commission has declared that the UK’s current situation would justify the UK triggering the emergency brake to restrict EU migrants’ in-work benefits, the draft decision indicates that the Council would have to authorise any decision to pull such a brake. Moreover, it is unclear whether EU member states would support an emergency brake, given their prior concerns about discrimination.
There are also some key points in the text that are unclear or left blank. In particular, it is unclear for how long the emergency brake would last once triggered and how a “graduated” limitation on in-work benefits – with access increasing as the connection between the worker and the member state’s labour market – would work in practice.
Interpretation of current rules on ‘social assistance’ benefits. The decision includes a statement that benefits intended to facilitate access to the labour market of a member state may also be restricted for EU migrants if their predominant function is to cover minimum subsistence costs, reflecting the recent European Court of Justice decisions in Dano and Alimanovic. But if the UK were to restrict jobseeker’s allowance on this basis it may face legal challenge, given this would conflict with previous European Court of Justice case law on jobseeker’s allowance.

Marley Morris, Research Fellow at IPPR, said:

“This draft decision shows progress towards a deal in February, but it is still likely that the major sticking point for other EU member states will be on restricting access to in-work benefits for EU nationals. The challenge for the Prime Minister will be to secure a deal that is substantial enough to secure public support but that is considered by other EU countries as fair and non-discriminatory.”

Contact:

Sofie Jenkinson – s.jenkinson@ippr.org 07981 023 031

Notes for editors:

IPPR has published two briefings on how the Prime Minister can negotiate changes to EU free movement rules as part of the current negotiations:

On changes to EU migrants’ access to benefits: http://www.ippr.org/publications/freedom-of-movement-and-welfare-a-way-out-for-the-prime-minister

On changes to free movement rules relating to crime, public services, labour markets, and integration: http://www.ippr.org/publications/unlocking-the-eu-free-movement-debate