As the last traces of EU citizenship disappear, the definitional boundary between work and inactivity becomes more critical. The ECJ’s increasing tolerance of nationality-discrimination creates a moral vacuum at the heart of free movement law, which is being exploited by Member States to impose their own definitions of work. Migrant workers on low incomes and in insecure jobs are at risk of exclusion from any equal treatment, which is especially concerning as labour market patterns change and zero hours contracts proliferate. The working poor are alienated, while the benefits of free movement are reserved for the better resourced. These domestic distortions of EU law feed back into, and distort in turn, EU law at its source – a prime example being the proposed “in-work benefit brake” in the UK-EU new settlement.
Among a swathe of major welfare reforms, one has received little academic attention – the two-child rule, restricting claims for key benefits to a maximum of two children. In negating the status of specific children within the framework of subsistence benefits, the measure clashes profoundly with a series of international legal obligations. In particular, the rule is set to increase child poverty, calling into question the role and purpose of the un Convention on the Rights of the Child (un crc) in the law-making process. This paper explores problematic recent decisions that risk creating a human rights chasm when it comes to children and social security rights, and argues that existing legal provisions can and should be used to fill that gap. It finds no evidence that the best interests of the child were a primary consideration in the enactment of the two-child rule, and argues that the justificatory narrative of welfare decadence is manifestly without reasonable foundation. If the un crc does not bite here, then we must question whether children have any social security rights at all.
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