Gijsbert Vonk

Migration, Social Security and the Law: Some European Dilemmas

This article deals with the role of law in determining the position of migrants in the social security system against the background operation of specific migration policies. It is argued that the inclusion of migrants in the social security system can, in part, be explained in terms of the forces that have led to the gradual development of the right to social security. However, it appears that the quality of the treatment given to migrants in social security is strongly dependent upon the migration policies of the states concerned. It is not the existence of migration, but rather the perceived desirability of migration, which affects the legal position of migrants in social security. This has negative effects, in particular for asylum seekers, illegal immigrants and nationals from countries that are not covered by international social security obligations.

Social Security as a Public Interest: A Multidisciplinary Inquiry into the Foundations of the Regulatory Welfare state

Why is social security a public interest and how does this reflect on the role of the state? This fundamental question is answered differently by various disciplines. This article gives an overview of an economic, a public administration, a legal and a philosophical viewpoint. It is observed that while social security is strongly associated with the public interest, it is never argued that it is exclusively a state affair. Private arrangements also play a role. With the emergence of the ‘regulatory welfare state’ private and public responsibilities become more intertwined. In order to monitor the success of the regulatory welfare state, it is necessary to be able to measure the extent to which new forms of governance contribute towards realising social security as a public interest. In order to do so, we need, first of all, to gain a deeper understanding of the core principles of social security. These principles should be seen as objectives which should be adhered to whatever choices have been made as to the division of responsibilities between the state and private actors. We also need to gain an understanding of the effects of various regulatory instruments and the way they interact.

Access Denied: towards a new approach to social protection for formally excluded migrants

This article discusses some recent trends in the area of immigration and social security. Access to social security is rendered more difficult, particularly for irregular immigrants, while the scope of application of the social security system is more closely linked to the national border (retrenchment to the national borders). It is argued that these trends can be attributed to restrictive immigration policies and the implicit rejection of transnational citizenship. These factors also appear to affect the strength of the transnational informal social security networks of which migrant groups are members. The article calls for an alternative strategy for the social protection of irregular migrants based upon respect for human rights, extra-territorial responsibility of migrants and more socially inspired return policies.

Repressive welfare state, the spiral of obligations and sanctions

This article discusses the trend of introducing increasingly strict obligations and sanctions for social security claimants in Germany, the Netherlands and the UK. It is argued that this trend should be judged critically because it upsets the balance between rights and obligations for benefit claimants and may undermine the ‘elevating function’ of social security. Courts play an important role in maintaining the balance between rights and obligations. The article discusses recent case law in the three countries and also refers to a remarkable case at the Czech Constitutional Court of November 2012, which paves the way for a more fundamental approach to scrutinising repressive welfare state excesses.

Sailing the seven seas: A schematic overview of mechanisms that can be used to strengthen the social security protection of persons moving in and out of the EU

The purpose of this final contribution is to offer a broad schematic overview of ‘mechanisms’ that can be used to strengthen the social security protection of persons moving in and out of the EU. Seven mechanisms have been selected for discussion: national unilateral standards, EU unilateral standards, bilateral agreements, EU coordination of bilateral agreements, EU third country agreements, multilateral co-operation and global standards. The existence of this plethora of mechanisms, each with its own merits and shortcomings, casts a shadow over the possibility of a uniform EU regime for external social security relations. Any attempt to introduce such an approach can immediately be contradicted by alternative approaches and mechanisms which can be used both by the EU and by the individual Member States. It is suggested that more coherence in external EU social security coordination can perhaps be found in a conceptual way, by layering the seven mechanisms in a logical manner.

Homelessness As a Challenge for the European Union

This paper contains a broad overview of law and governance aspects pertaining to the problem of homelessness. The prevention of homelessness has become a constitutional imperative. Yet this does not mean to say the law always works in favour of the inclusion and emancipation of the homeless. Rigid exclusions remain, in particular for immigrants, and repressive policies are on the rise. In the meantime courts soften the worse consequences of these policies by offering human rights remedies. This paper addresses the question of how European policy can respond to this state of affairs. Is it feasible that the remaining restrictions applying in the field of freedom of movement and access to social rights could be lifted in order to give full protection to all mobile citizens, including those with insufficient resources of their own? Or is it possible to introduce common standards for the protection of the homeless in an EU instrument who are in a vulnerable situation, regardless of their nationality?