EU Migrants and the 'Unreasonable Burden': How Member States Deal with ECJ Case Law on Equal Treatment and Lawful Residence on the Ground

As one of the four fundamental freedoms of the EU, the free movement of persons was already enshrined in the Treaty of Rome. It was, however, granted exclusively to economically active EU citizens, implying that only these EU citizens had the right to equal treatment with national citizens concerning social rights. This group was extended, mainly by the European Court of Justice (ECJ), finally also granting broad rights to economically inactive EU migrants. Still, the right of residence is not unconditional. EU migrants who claim social assistance may no longer fulfil the conditions of lawful residence and may be expelled – in case they form an “unreasonable burden” on the social assistance system of the host Member State. A measure terminating the residence may, however, not be the “automatic consequence” (Grzelczyk, C-184/99). Little is known about how Member States deal with these vague legal provisions on the ground. In my contribution, I will investigate to what extent and under what conditions they comply with EU law/ECJ case law. A comparative study of German, Austrian and French immigration authorities’ practices (based on data on measures terminating residences, on interviews, mainly with case workers, on judgments and on documents) shows that Member States’ practices largely depend on salience as well as the acceptance of EU law/ECJ case law by national courts.