Why the EU emergency brake on migrant benefits is sexist

It could take women, who are more likely to be in part time or short term jobs, far longer than four years to be recognised as a worker in the UK

Women with childcare responsibilities will be harder hit by the emergency brake clause negotiated by David Cameron. (iStock/Christopher Futcher)

Since the plan on re-negotiating the UK’s position in the EU was published, there has been a lot of talk about whether it offers a good enough compromise to placate eurosceptic politicians. Of particular interest has been the proposal to apply an “emergency brake” to limit access to in-work benefits for EU migrants.

There’s been scant mention, though, of the victims of the proposed measures. Not only does a brake on in-work benefits constitute a dramatic licence to discriminate against EU nationals – it is sexist.

The majority of tax credits in the UK go to women, therefore women and children will be more acutely affected by the clamp down.

While the precise details of the brake are yet to be refined, what we do know is that it limits access to in-work benefits for “up to” four years.

In-work benefits are extremely important for working parents and are vital for lone parents – overwhelmingly women – on low incomes. This makes the European ideal of free movement considerably less free for women. Their ability to live and work in the UK becomes contingent on them not becoming mothers – especially not single mothers.

If this brake is applied, many women will find it impossible to continue working, since they need help with the cost of childcare.

It has already been noted that EU nationals are unlikely to claim benefits in their first couple of years in the UK. Women migrants will now be invited to assume a four-year risk of poverty, unless they refrain from having children. This is, in effect, a sterility pact. If breached, those who cannot afford childcare costs will have to give up work, leading to destitution or departure.

The draft decision includes the suggestion that access to benefits be graduated rather than banned entirely. This has led some to suggest that the benefit ban may be shorter than four years. But the chances are that in practice it will be longer.

Study of the recent welfare changes shows that the UK authorities tend to make parsimonious interpretations of “lawful residence” and “work”.

Part-time work, short-term work and atypical work are often disregarded, while gaps between jobs can restart the clock. So it could take a long time to get recognised as a worker in the first place, and then much longer than four years to accrue the requisite continuous period of work. This has already been happening as the recent UK welfare reformstargeting EU migrants kick in, redefining work.

The cases we have seen in the EU Rights Project are deeply disturbing. Working women have been re-defined as “not workers” and deprived of key benefits. They have struggled to feed, clothe and house children, let along pay for childcare.

There is evidence of women who have no other recourse, taking up sex work at night in addition to their day jobs, and others being made homeless. Some women, having lived and worked in the UK for over a decade, are trapped in abusive relationships, and face the choice of keeping their children in a dangerous situation, or of leaving to become homeless and destitute.

These cases are mounting up already. The emergency brake proposals will cause them to pile ever higher, since they extend these restrictions to women who manage to pass the test to be defined as workers. As it stands, four years is a long time, but if work is narrowly defined, and stringent continuity conditions are imposed, the ban will amount to a lot longer than four years in practice.

We should heed warnings from the damage caused by changes already implemented before pressing ahead with economically unnecessary proposals that deepen child poverty and homelessness, and push women over a welfare cliff edge.

The emergency brake on in-work benefits creates a sexually asymmetric concept of free movement: women can only enjoy the rights supposedly afforded to all European citizens so long as their bodies do not betray them.

Charlotte O'Brien is a senior lecturer in law at the University of York

This article was first published by The Conversation UK on 4 February 2016