Migrant benefits: Top EU lawyer backs UK on 'right to reside' Published duration 6 October 2015 Related Topics Europe migrant crisis

image copyright PA image caption The UK's extra test for EU migrants is seen as proportionate in the new legal opinion

A top EU legal adviser has backed the UK government in a court battle with the European Commission over the UK's right-to-reside test for EU migrants.

The Commission argues that the test, introduced in 2004, discriminates against EU migrants, by setting extra conditions for certain social benefits.

But the EU advocate general said such unequal treatment was justified by the UK's need to protect the state budget.

Child benefit is among the payments affected by the right to reside test.

The UK's governing Conservatives - pushing for tighter rules on EU migrant benefits - welcomed the lawyer's opinion.

The European Court of Justice - the EU's top court - will now consider the advocate general's opinion before making a judgment on the case.

In most cases the Luxembourg judges rule in line with that opinion, and ECJ rulings are binding throughout the 28-nation EU.

UK immigration issue

The right to reside test came in after EU enlargement in 2004 caused an influx of migrants to the UK from Eastern Europe.

Net migration into the UK currently stands at a record high, reaching 330,000 in the year to March.

UK Home Secretary Theresa May told the Conservative Party conference on Tuesday that such a level of immigration undermined social cohesion and made it "difficult" for key services to cope.

Tuesday's legal opinion from the Luxembourg court is important for Prime Minister David Cameron because of his renegotiation of the UK's EU membership terms.

"This is very welcome news for Britain's drive to combat benefits tourism. If adopted by the court it bodes very well for David Cameron's renegotiation programme," said Anthea McIntyre, Conservative spokesperson on employment in the European Parliament.

image copyright Getty Images image caption The legal opinion is a boost for David Cameron coinciding with the Conservatives' party conference

The right to further restrict EU migrants' access to social benefits is a key part of the Conservatives' renegotiation, ahead of the UK's in-out referendum on EU membership. The vote is set to take place before the end of 2017.

But that push is opposed by some EU member states, especially Poland. It tops the list for foreign nationals in the UK, accounting for 13% of them, the Migration Observatory in Oxford reports.

The UK Conservatives insist that migrants should pay sufficient contributions before being entitled to state benefits.

Child benefit

The right-to-reside test is additional to the UK's habitual residence test which, according to the Commission, complies with EU law.

Migrants have to pass the habitual residence test to qualify for means-tested benefits, and it requires them to prove real job prospects and a genuine connection to the UK.

An EU migrant who qualifies under the right-to-reside test can claim housing benefit, council tax benefit, child tax credit and child benefit.

The migrant has to be economically active or able to support themselves and their family.

An October 2013 study found that jobless EU migrants formed only a very small share - below 5% - of those claiming social benefits in EU member states.

One of the most contentious issues has been UK child support payments to migrants whose children remain in their country of origin.

Advocate General Pedro Cruz Villalon advised the ECJ to dismiss the Commission's case against the UK on Tuesday.

He concluded that UK legislation "does not impose any condition additional to that of habitual residence, but rather examines the lawfulness of that residence under EU law, in connection with the grant of specific social benefits".

The UK's checks on applicants for certain benefits were proportionate, he said.

UKIP, which advocates the UK's withdrawal from the European Union, said the step was "useful in the short term".