From Kafka to Kafka: EU Citizenship and National Welfare Bureaucracies

by Dion Kramer and Anita Heindlmaier

Conceived in Maastricht almost thirty years ago, EU citizenship was initially thought of as a mere symbolic addition to existing rights. In the following decades, interventions by the European Court of Justice led many to believe that EU citizenship could emerge as a truly fundamental status capable of conferring concrete social rights to EU citizens crossing borders within the European Union. This promise of a social citizenship beyond the nation-state is currently less tenable. The aftermath of the Great Recession and Brexit have shown the limits of EU citizenship as a status delivering to those most in need of its protection.

Yet EU citizenship does more than allocating social rights across borders. As a constitutional status, it has effectively destabilised decades of institution-building and reshuffled national administrations in their handling of welfare claims by foreigners. This process of adjustment has been slow and the impact has greatly varied from Member State to Member State depending on national idiosyncrasies. In practice however, the Court’s desire – to remove any administrative obstacles that might stand in the way of exercising free movement rights – does not necessarily create a better position for EU migrants within national welfare bureaucracies.

The Court’s Contempt for Member State Bureaucracies

The substantive social rights of Union citizens have been widely documented and analysed. While Union migrants are generally seen as ‘privileged’ immigrants with a strong position in their welfare state of destination, the right to equal treatment in that state is far from unconditional. Union citizens can be required to be either economically active or self-sufficient in order to enjoy a right of residence after three months of being there. Over the past decade, Member States have increasingly discovered how to use these so-called ‘residence conditions’ against Union citizens who apply for non-contributory social benefits like social assistance. As a result, lawful residence – rather than equal treatment – has largely become the linchpin for cross-border welfare access in the European Union.

Less academic attention has been directed to the administrative implications of another crucial feature of citizenship law. Building on a line of jurisprudence dating back to the 1970s, the European Court of Justice has constitutionalised the status of EU citizenship: Union citizens do not enjoy their rights on the basis of administrative decisions by national authorities but directly on the basis of the Treaties. The idea behind is that breaking the formalistic and arbitrary power of national bureaucracies would remove obstacles to free movement and boost EU citizens’ ability to enjoy their substantive rights in their Member State of destination. Codifying this case law, the Citizenship Directive prohibits Member States from making any ‘administrative formality’ a precondition for exercising free movement rights under the Treaty.

From Kafka…

Theoretically, the constitutional status of EU citizenship should imply a major overhaul of how welfare state bureaucracies deal with foreign citizens. When confronted with foreign citizens, the first thing welfare officials used to (and still do in most Member States) is to ask for residence documentation like permits or certificates or verify their residence status in databases. Typically, EU citizens would have to register after three months with migration authorities (or other authorities) and provide evidence that they satisfy the residence conditions under EU law. Relying on the authority of migration authorities regarding the ‘residence status’ of the applicant, welfare officials subsequently make a decision on granting benefits.

What are the practical implications of this bureaucratic model? Clearly, EU citizens who successfully manage to navigate the immigration procedures at an early stage have a high chance of obtaining access to the welfare state at a later stage, as they are equipped with the correct documentation and registration status. However, those Union citizens who, for whatever reason, failed to register at the first place or have difficulties assembling the required paperwork might be denied the possibility to claim their substantive rights under EU law. It is at this point that bureaucratic rationality and predictability risk slipping into Kafkaesque alienation and dehumanization: ‘faceless’ bureaucrats prioritise a commitment to forms and procedures over the substantive serving of EU citizens’ rights.

Such a commitment to ‘procedures’ is clearly at odds with EU law, which prohibits Member State authorities from relying on such ‘administrative formalities’. Germany and the Netherlands therefore made the strategic decision to stop monitoring Union citizens’ compliance with free movement law ‘at entry’ and to abolish corresponding residence documentation in the early 2010s. No longer issuing ‘worthless’ documents would mean less work for migration authorities and cause less confusion in the wider state administration and for Union citizens themselves. Our research shows, however, that not all Member States made a similar move. In Austria, for example, decision makers cling to such formalistic procedures believing they are effective instruments to keep ‘control’ over who resides in the country. It also seems that countries where Union citizens have more difficulties mobilising their ‘constitutional’ status before national courts prefer to maintain a commitment to the ‘form’. Sweden is probably the most notorious example, where becoming a formalized resident requires obtaining a personal ID number (personnummer), which can be notoriously difficult. Once in possession, however, the personnummer serves as the basic proof of the individual’s inclusion in the largely residence-based Swedish welfare state.

… to Kafka

Our research suggests, however, that the abolition of registration procedures and residence documents does not necessarily make the situation of the Union citizen any less ‘Kafkaesque’. Union citizens come and go, work, study, fall in love, live their lives, without at any point having to prove their residence status under EU law. As a result, the residence status of Union citizens remains ‘unknown’ and can actually fluctuate by the day depending on their circumstances. This changes radically when they apply for social assistance or other welfare benefits: it is at this point, when engaging with the welfare state, that the right of residence will be examined and ‘officially’ determined by the authorities, retrospectively from the day of arrival on the state’s territory.

In Germany (and the UK), social authorities have largely taken over the competence of migration authorities to verify Union citizens’ rights of residence. Social authorities can now control ‘at the gate’ by testing compliance with the residence conditions when taking a welfare decision. The right of residence has become a purely legal fiction for determining social membership and does no longer carry the wider juridical implication of (un-)authorised presence on the state territory. Certain Union citizens are ‘tolerated’ on the territory of the Member State but do not have access to social benefits.

In the Netherlands, however, social authorities cannot simply reject welfare applications by claiming that Union citizens do not have a right of residence. Instead, they are required to grant social assistance and subsequently report this to the migration authorities which are solely authorised to verify the right of residence and subsequently take removal measures. In other words, Union citizens are initially treated equally with respect to access to social assistance, but their official interaction with the welfare state can have potentially far-reaching residential consequences. This bureaucratic system resembles Kafka’s ‘Before the Law’. In this parable, a ‘man from the country’ seeks access to the law which is represented as an open gate guarded by a gatekeeper. Faced with the prospect of ever more powerful gatekeepers in the rooms ahead, the man decides not to enter ‘the law’ at all. Union citizens face a similar ‘gate’ towards their social rights when applying for assistance with the social authorities: while the gate is open and social assistance will be granted, accessing it triggers a subsequent examination of their conduct by the migration authority that might eventually result in a termination of residence and an order to leave the country. Similar to Kafka’s parable, the law applies forcefully in its openness and can deter Union citizens from trying to exercise their social rights in the first place.

Conclusion

Union citizens applying for social assistance in another Member State find themselves in a rather awkward position between migration and welfare state bureaucracies. Their right to equal treatment in the welfare state largely depends on their right of residence, but their application for social benefits can trigger the loss of their right of residence. But how to administer rights when the European Court of Justice holds national bureaucratic procedures in contempt and allows Union citizens to invoke their substantive European rights directly before courts and national administrations?

It follows from our research that Member State bureaucracies respond remarkably differently to this administrative puzzle. Strikingly, however, it seems that in none of the different bureaucratic systems the Union citizen is clearly ‘better off’ in terms of actual access to the welfare state. Bureaucratic borders are removed, reshuffled and newly erected. All of this suggests that breaking the formalistic power of state administrations through the constitutional status of EU citizenship does not necessarily serve the exercise of EU social rights.

This blog post is based on an article published in the Journal of European Social Policy.