Memorandum to Mrs Agnieszka Kowalska, Deputy Director for European Affairs at the Polish Ministry of Foreign Affairs in Warsaw.
It is known that the continued participation of the United Kingdom as a full member of the European Union remains an important objective in Polish foreign policy, as long as it does not lead to a need to renegotiate the EU treaties. The two countries have many common strategic interests in security, energy and in protecting the interests of EU countries that are so far outside the euro zone.
The list of demands for her EU partners from the British government is not very specific because it is dependent to some extent on:
a / the whims of the general public in Britain and particularly from the growing reluctance of older voters to tolerate uncontrolled access to the UK labour market and to the UK health and welfare services and social benefits by people from abroad, regardless of whether or not they are EU citizens
and b / on objections from businesses, and above all from small businesses, protesting against the excess of regulations set by the European Parliament.
British concerns regarding "ever closer union" stem directly from the fact that this slogan automatically motivates officials and members of the European Parliament to create new rules and directives on harmonization of everyday products and services that seem completely superfluous. And besides the British feel that this threatens their sense of national sovereignty which they had managed to retain even during the Second World War, when Britain was the only European country participating in that war that never had to survive the humiliation of defeat and occupation. For sure this statement could restructured into a similar formula that gives subsidiarity to the clause by adding a phrase, such as “at the appropriate pace for each EU member country”.
The British government would even like reverse some of the Directives, particularly as regards employment rights within the Social Charter, but any changes (and especially a withdrawal from the Charter) would not have received the support from the opposition parties in the UK, particularly Labour and the SNP, and without their support, Prime Minister Cameron could actually lose the referendum. And besides, mechanisms for toning down or excluding irksome clauses and regulations already exist provided that a sufficient number of other EU countries would agree to support such changes.
In the case of free movement of workers across EU borders, the British government is already aware that it can no longer undermine the basic principle of the right and entitlement of every EU citizen to receive benefits and services of the country they have settled in provided such provisions are the right of that country's own citizens. There can be no discrimination between nationals and other EU citizens. British public opinion is not so resentful of access to its own benefits to anyone, regardless of nationality, if they were known to have already made a contribution to the prosperity of the country by working here and paying national insurance (NI), as well as income tax and council tax. The most intense objections relate to recipients of benefits which are obtained within the first weeks of arrival in the UK, and these include access to benefits for the unemployed or working at low wages (e.g. income support, job seekers allowance, working tax credit), housing benefit, Child Benefit and Child Tax Credit, without previously having made any contribution to the state exchequer. British voters suspect that the amount arriving to work and claim benefits from other EU countries is getting out of the control of the UK authorities and that the main motivation for such arrivals are generous (in their own opinion) benefits which have not yet been merited. In any event, such a perception of abuse of benefits and possible fraud persists, and when statistics are produced showing that the percentage of such abuses are rare, the public remains sceptical.
Poland is also acutely aware of the need to stabilize the current excess of 140,000 young Poles a year travelling abroad permanently to other EU states. These departures exacerbate the threat of long-term demographic decline in Poland. If these people going abroad for work send part of their income back to Poland for their families then their departure still remains a relatively positive phenomenon; but if their intention in going abroad is merely to take advantage of more generous benefits then this will not benefit Poland in the long term. These people not only create a loss to the Polish economy and to the economy of the country of destination, but also harm the reputation of other hard-working Poles abroad. In this situation, I believe that it is both in the interest of the Polish authorities and the British government to reduce the amount of further departures from Poland of so-called Polish "benefit tourists", and to restrain their temptation to make use of those British benefits when in this country.
Of course, because of the cardinal EU principle about the free movement of EU workers from one country to another without discrimination against their rights and access to local services, I propose another solution that could begin as a bilateral practice between the British and Polish authorities and which could in turn, be enhanced and undertaken by other EU countries, bilaterally first, and later on multilaterally.
So, it is proposed that any application for Polish benefits by UK citizens and for British benefits by Polish citizens made within 12 months of their first arrival in the country of destination, be frozen for that first 12 months of arrival until the relevant health, tax and social services of the country of origin have been able to assess and reveal the applicant’s true financial status. The relevant Polish authorities, for instance, would have to acknowledge that their citizens do not have other sources of income, e.g. social insurance payments from ZUS, and that they have paid off all financial obligations in their own country. Only after confirmation that these applicants do not have other sources of income, would the destination countries be able to grant the various benefits to which the applicant could be entitled, including the payment due for the period when this payment was frozen. Any trip by an applicant away from the destination country, even for a short period of time, will negate the waiting time to that date and the applicant would have to begin his or her quarantine period again on their next arrival at that country.
Ministries of the two countries would undertake in the spirit of mutual transparency to provide sufficient data during this probationary year in order to carry out their assessments within the required 12 month period. This will also cover child benefits paid to children not resident in the country where the benefit is issued if the applicant has arrived at the country of destination less than 12 months before the claim is made.
On the one hand, it will discourage trips that were only dependent on obtaining benefits in the other EU country, but also it will discourage people in the destination country from making premature applications for financial assistance to which they were not yet entitled through earlier tax and national insurance contributions. In addition, it will be an effective tool against tax and benefit fraud in both countries. However, no such measures could be regarded as discrimination against EU citizens because, in the end, those benefits to which the applicant has been entitled will be made available and be back dated after the quarantine period is over.
The second difficulty broached by the British government is the question of Polish citizens who, despite their access to work legally in the UK, still continue to work illegally without registering for national insurance and without paying taxes. Where this applies to illegal employment of citizens not originating in the EU, the authorities can impose heavy fines on the employer and deport the illegal worker. I would suggest, however, in the case where the UK authorities catch EU citizens working in the informal economy they could deport these people back to their own country. The Polish authorities and other EU countries would have the same right in the case of British nationals working illegally in Poland or another EU country. Of course deportees could return relatively quickly to the country where they were employed but that deportation, even if temporary, would nonetheless be costly and create a certain amount of dislocation in the private and professional life of the offender in question. Due to the fact that this work in the grey economy is outside the law, and under British law would actually be a crime, it too cannot be classified as a form of sanction that discriminates against EU citizens.
It seems to me that such initiatives by the Polish government would be a viewed positively not only by the British Government, but also by the British public, and make it easier for the UK Prime Minister to argue that he had been able to obtain positive results in his negotiations in the European capitals, particularly in Warsaw. It would also put the remaining hard working Polish citizens working legally in the UK in a more positive light. In fact these administrative measures could be a model or pilot scheme that could be adopted by other EU countries and would still not be regarded as a form of discrimination against EU citizens,
Wiktor Moszczyński London 16/10/2015