All EU migrants are not equal when it comes to residency rights, writes Isabel Shutes, Assistant Professor of Social Policy at the LSE. The unpaid labour of women with young children, who take time out of paid work to look after them, is not recognised as “genuine and effective work” in EU case law. Consequently, they are at greater risk of losing their status as ‘workers’ and have to rely on having a partner who is a working EU citizen or being self- sufficient to claim residence rights. Brexit negotiators must avoid putting an extra, gendered burden on these women to prove their right to stay

Shutes, Isabel

LSE Research Online

When	unpaid	childcare	isn’t	‘work’:	EU	residencyrights	have	gendered	consequencesAll	EU	migrants	are	not	equal	when	it	comes	to	residency	rights,	writes	Isabel	Shutes,Assistant	Professor	of	Social	Policy	at	the	LSE.	The	unpaid	labour	of	women	with	youngchildren,	who	take	time	out	of	paid	work	to	look	after	them,	is	not	recognised	as	“genuine	andeffective	work”	in	EU	case	law.	Consequently,	they	are	at	greater	risk	of	losing	their	status	as‘workers’	and	have	to	rely	on	having	a	partner	who	is	a	working	EU	citizen	or	being	self-sufficient	to	claim	residence	rights.	Brexit	negotiators	must	avoid	putting	an	extra,	genderedburden	on	these	women	to	prove	their	right	to	stay.Free	movement	is	a	critical	issue	in	the	Brexit	negotiations,	and	the	future	rights	of	EU	nationals	living	in	the	UKare	of	prominent	concern.	But	it	is,	already,	much	less	free	for	some	than	for	others.All	EU	nationals	have	a	right	‘to	move	and	reside	freely’	within	the	EU	(Article	21,	Treaty	on	the	Functioning	of	theEuropean	Union).	However,	they	are	not	all	equal	in	terms	of	their	residence	rights	after	moving	to	anothermember	state.	EU	citizens	have	different	conditions	attached	to	their	right	to	reside	depending	on	their	status	as	aworker,	self-sufficient	person	or	family	member	of	an	EU	citizen	(Directive	2004/38).	Moreover,	these	statusesand	conditions	have	consequences	for	the	social	rights	of	EU	citizens,	and	for	claiming	permanent	residency	–consequences	that	are	gendered	(Shutes	and	Walker,	2017).Looking	at	free	movement	from	a	gender	perspective	requires	examining	the	ways	in	which	these	categories	andconditions	–	in	relation	to	work,	self-sufficiency	and	family	–	are	gendered.Photo:	bodik.cz	via	a	CC-BY-NC-SA	2.0	licenceLSE Brexit: When unpaid childcare isn’t ‘work’: EU residency rights have gendered consequences Page 1 of 3		Date originally posted: 2017-07-20Permalink: http://blogs.lse.ac.uk/brexit/2017/07/20/when-unpaid-childcare-isnt-work-eu-residency-rights-have-gendered-consequences/Blog homepage: http://blogs.lse.ac.uk/brexit/As	regards	the	category	of	‘worker’,	the	definition	of	work,	which	rests	on	EU	case	law,	is	exclusive	to	thoseengaged	in	paid	work	(Case	66/85	Lawrie-Blum	v	Land	Baden-Württemberg	[1986]	ECR	2121)	that	is	considered‘genuine	and	effective’	(Case	53/81	Levin	v	Staatssecretaris	van	Justitie	[1982]	ECR	1035).	While	unpaid	care	forfamily	members	strongly	shapes	migration	decision-making	within	Europe	(Ackers	2004,	Ryan	et	al.	2009),	freemovement	law	has	consistently	disregarded	unpaid	care	work	as	non-economic	activity	(O’Brien	2013).	Unpaidcare	forms	a	very	limited	basis	for	the	rights	of	EU	citizenship	(Ackers	2004).	The	status	of	carer	is	not	includedamong	the	categories	of	mobile	EU	citizens	who	have	residence	rights	(Article	7,	Directive	2004/38).	And	unpaidcare	is	excluded	from	the	definition	of	work	–	the	labour	of	those	engaged	in	unpaid	care	activities	is	notrecognised	as	‘genuine	and	effective	work’	–	on	which	basis	EU	citizens	can	claim	the	status	of	worker.	While	theEU	citizen	may	access	residence	rights	as	a	primary	carer	of	a	child	in	education,	those	rights	are	derived	fromthe	rights	of	the	child	of	an	EU	migrant	worker	to	education	in	a	member	state	(Article	10,	Regulation	495/2011).EU	citizens	with	younger	children	have	no	such	rights.	Furthermore,	the	primary	carer	does	not	have	a	right	topermanent	residence.Disregarding	care	is,	in	itself,	gendered	in	terms	of	its	under-valuation.	However,	making	residence	contingent	onwork,	self-sufficiency	or	family	status	is	also	likely	to	contribute	to	gender	and	income-based	inequalities	inaccess	to	security	of	legal	residence	among	EU	nationals	in	the	UK.Unpaid	childcare	is	‘not	genuine	and	effective	work’Our	research,	which	involved	interviews	with	providers	of	advice	services	to	EU	nationals	and	interviews	withfemale	EU	nationals	living	in	the	UK	(Shutes	and	Walker,	2017),	found	that	women	are	at	risk	of	exclusion	fromresidence	and	social	rights	as	‘workers’	because	the	type	of	work	in	which	they	are	engaged	is	not	recognised	as‘genuine	and	effective	work’	and/or	because	having	children	negatively	impacts	on	their	employment.	In	thosecases,	women	are	largely	dependent	on	being	the	spouse/partner	of	an	EU	citizen	in	work	to	access	residencerights.	But	their	partner	may	not	be	an	EU	citizen	who	has	moved	to	the	UK	–	they	may	be	in	a	relationship	with	aBritish	or	non-EU	national	–	or	they	may	be	a	lone	parent	who	is	unable	to	access	rights	and	other	resources	viaa	spouse/partner,	whatever	their	nationality.	In	the	absence	of	work	or	marriage/partnership	to	the	‘right	kind’	ofcitizen,	women	are	faced	with	the	burden	of	providing	evidence	that	they	are	self-sufficient.	They	are,	in	effect,penalised	for	gender	inequalities	in	work,	care,	and	income.Wider	research	shows	women	are	more	likely	to	experience	periods	of	time	out	of	work	(or	reduced	workinghours)	due	not	to	unemployment	but	care,	are	more	likely	to	be	in	lower	paid	work	and,	relatedly,	are	more	likelyto	rely	on	social	benefits	as	a	relative	share	of	income	(Bennett	and	Daly	2014):	work	and	self-sufficiency	aregendered.	At	the	same	time,	women	are	more	likely	to	be	lone	parents,	who	may	or	may	not	be	able	to	rely	onthe	status	of	(former)	wife/civil	partner	of	an	EU	national.	Family	change	is	also	more	likely	to	impact	on	women’semployment	and	income	as	lone	parents,	who	are	at	greater	risk	of	living	in	poverty	cross-nationally	(Misra	et	al,2007).	Gender	inequalities	in	relation	to	work,	care	and	family,	as	well	as	issues	concerning	childcare	provision,thus	have	significant	implications	for	female	EU	nationals’	access	to	residence	rights	in	the	UK	that	depend	oncontinuity	of	labour	market	participation,	self-sufficiency	or	family	status.Debates	with	respect	to	citizenship	and	gender	equality	have	pointed	to	the	fundamental	limits	of	subordinatingcare	to	paid	work	as	a	valued	social	activity	and	as	the	basis	for	claiming	rights,	and	specifically	rights	to	freemovement	(Ackers	2004).	A	more	gender	equitable	approach	requires	facilitating	a	right	to	care,	including	time	tocare,	as	opposed	to	the	assumption	that	all	care	can	be	de-familialised	through	childcare	provisions	(Lewis	2009,Knijn	and	Kremer	1997).	It	also	requires	access	to	social	protection	which	is	not	conditional	on	labour	marketparticipation	or	family	dependency	(Rubery	2015b).	Basing	access	to	social	rights	on	work	ormarriage/partnership	both	limits	women’s	access	and	contributes	to	women’s	greater	risk	of	poverty	(Bennett	andDaly	2014).LSE Brexit: When unpaid childcare isn’t ‘work’: EU residency rights have gendered consequences Page 2 of 3		Date originally posted: 2017-07-20Permalink: http://blogs.lse.ac.uk/brexit/2017/07/20/when-unpaid-childcare-isnt-work-eu-residency-rights-have-gendered-consequences/Blog homepage: http://blogs.lse.ac.uk/brexit/In	the	context	of	Brexit	and	the	negotiation	of	EU/UK	citizens’	rights	(inside	and	outside	the	UK),	it	is	thereforecritical	that	the	gender	implications	of	the	conditions	for	acquiring	legal	residence	and	social	rights	are	addressed.Our	research	indicates	the	difficulties	that	the	approach	taken	in	the	UK	already	poses	in	terms	of	therequirements	for	demonstrating	the	status	of	worker,	family	member	of	an	EU-citizen	worker	or,	in	the	absence	ofwork	or	marriage	to	an	EU	citizen,	self-sufficiency.	Women	out	of	work	with	pre-school	children,	who	are	not	in	arelationship	with	an	EU	citizen-worker,	face	the	double	burden	of	proving	‘self-sufficiency’	through	no	access	tosocial	benefits	and	through	comprehensive	sickness	insurance.	That	approach	thus	raises	serious	implicationsfor	the	gendered	impact	of	the	residence	requirements	on	who	is	able	to	secure	rights.Making	EU	citizens’	rights	to	residence	contingent	on	work,	self-sufficiency	or	family	–	now	and	beyond	Brexit	–	islikely	to	contribute	to	gender	and	income-based	inequalities	in	access	to	security	of	legal	residence	in	the	UK	–placing	low-income	female	EU	nationals	with	young	children	at	particular	risk	of	exclusion	from	those	rights,	whileplacing	all	EU	nationals	in	precarious	work	in	insecurity.This	post	is	based	on	Shutes	and	Walker	(2017)	“Gender	and	Free	Movement:	EU	Migrant	Women’s	Access	toResidence	and	Social	Rights	in	the	UK“,	Journal	of	Ethnic	and	Migration	Studies	(published	online	26	June	2017).It	represents	the	views	of	the	author	and	not	those	of	the	Brexit	blog,	nor	the	LSE.Isabel	Shutes	is	Assistant	Professor	of	Social	Policy	at	the	LSE.LSE Brexit: When unpaid childcare isn’t ‘work’: EU residency rights have gendered consequences Page 3 of 3		Date originally posted: 2017-07-20Permalink: http://blogs.lse.ac.uk/brexit/2017/07/20/when-unpaid-childcare-isnt-work-eu-residency-rights-have-gendered-consequences/Blog homepage: http://blogs.lse.ac.uk/brexit/

When unpaid childcare isn't 'work': EU residency rights have gendered consequences

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